United States v. Rodriguez-Rosado , 854 F.3d 122 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 15-1335
UNITED STATES OF AMERICA,
Appellee,
v.
WILFREDO RODRÍGUEZ-ROSADO, a/k/a La Gorda, a/k/a Mogoyo, a/k/a
Pitin, a/k/a Mogo,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Howard, Chief Judge,
Lipez and Thompson, Circuit Judges.
Vivianne M. Marrero, Assistant Federal Public Defender,
Supervisor, Appeals Section, with whom Eric Alexander Vos, Federal
Public Defender, and Leonardo M. Aldridge, Assistant Federal
Public Defender, were on brief, for appellant.
Mainon A. Schwartz, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
April 19, 2017
HOWARD, Chief Judge. Defendant-Appellant Wilfredo
Rodríguez-Rosado appeals from the district court's denial of his
motion to reduce sentence pursuant to 18 U.S.C. § 3582(c)(2).
Under the unique circumstances of this case, we conclude that the
prudent course is to remand for the district court to apply its
own administrative directive.
I.
In May 2010, Rodríguez pled guilty to participating in
a conspiracy to possess with intent to distribute between fifteen
and fifty kilograms of cocaine. See 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(ii), 846. Rodríguez, who was an American Airlines
employee at the time, utilized commercial flights to transport
large amounts of cocaine from Puerto Rico to the continental United
States. Rodríguez's plea agreement indicates that he was the
"Leader" of the drug trafficking conspiracy, which continued for
approximately ten years and involved more than 9,000 kilograms of
cocaine. In October 2010, the district court, consistent with the
parties' joint recommendation, sentenced Rodríguez to 180 months'
imprisonment.
In November 2014, Rodríguez filed a motion to reduce his
sentence, citing an April 2014 amendment to the sentencing
guidelines ("Amendment 782"), which was given retroactive effect
by the Sentencing Commission. Amendment 782 reduced the base
offense level ("BOL") for certain drug crimes by two levels,
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effective November 1, 2014. See U.S.S.G. App. C Supp., Amend.
782. At the time of his sentencing, Rodríguez's guideline
sentencing range ("GSR") was based on the then-applicable BOL of
thirty-four. Under Amendment 782, however, Rodríguez's BOL would
be thirty-two. See U.S.S.G. §2D1.1(c)(4) (2016).
Amendment 782, as expected, generated thousands of
sentence reduction motions. Indeed, in the District of Puerto
Rico alone, more than 1,400 such motions were decided before the
end of 2016. See U.S. Sentencing Comm'n, 2014 Drug Guidelines
Amendment Retroactivity Data Report, Table 1 (Jan. 2017). On
November 6, 2014, just five days after Amendment 782's effective
date, the Puerto Rico District Court issued an administrative
directive ("AD 14-426") outlining a procedure for handling the
impending onslaught of motions. Under AD 14-426, all motions to
reduce sentence based on Amendment 782 are automatically referred
to a magistrate judge for "initial screening." At this preliminary
stage, the magistrate judge evaluates only the defendant's
potential eligibility for a sentence reduction. A defendant is
not eligible if, for example, the relevant amendment does not apply
to him or does not lower his GSR. See U.S.S.G. §1B1.10(a)(2). If
the magistrate judge determines that a given defendant may be
eligible, the government, defense counsel, and probation officer
"shall meet to discuss the case" in an attempt to reach a
stipulation. In the event that the participants are unable to
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agree, they are directed to file memoranda with the district court.
The court is then tasked with resolving the issue. AD 14-426
expressly provides that it is not "intended to confer individual
rights to litigants, nor limit the discretion of judicial
officers."
In the present case, on November 26, 2014, the district
judge sua sponte denied Rodríguez's motion before the magistrate
judge had the opportunity to make an eligibility determination
pursuant to AD 14-426. The court explained that Rodríguez "was
the maximum leader of an elaborate drug trafficking organization
that operated for many years packaging and transporting over 9000
kilos of cocaine." About a month later, the magistrate judge, to
whom the motion had automatically been referred under AD 14-426,
issued a report and recommendation indicating that Rodríguez "may
be eligible for a sentence reduction and therefore the matter is
referred to a United States District Judge." On December 30, 2014,
the district court, in a brief text order, rejected the report and
recommendation, stating that Rodríguez's motion "has been denied"
and citing its own prior order. On appeal, Rodríguez challenges
the district court orders denying his motion for sentence
reduction, arguing, among other things, that the court failed to
apply its own administrative directive.
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II.
The parties first dispute whether Rodríguez has filed a
timely notice of appeal. Under Fed. R. App. P. 4(b), such a notice
must, absent an extension, be filed within fourteen days of the
judgment or order being appealed. In his opening brief, Rodríguez
cited a February 18, 2015 "Form for Selection of Counsel"
(reflecting Rodríguez's request to proceed pro se)1 to establish
the timeliness of his appeal. As the government points out,
however, that document was filed well over fourteen days after
both of the relevant district court orders, entered on November 26
and December 30, 2014, respectively. The government moved for
summary dismissal, but we reserved the issue of timeliness for the
merits panel and directed the parties to address in their response
and reply briefs whether any filings other than the February 18
form might have provided timely and sufficient notice.
As requested, the government preemptively argued in its
brief that no other documents filed by Rodríguez were both timely
under Rule 4 and specified "the judgment, order, or part thereof
being appealed," as required by Fed. R. App. P. 3(c)(1)(B). In so
arguing, the government discussed a December 8, 2014 Form for
Selection of Counsel. That document listed the applicable district
court docket number and requested that Hector L. Ramos-Vega be
1
The Federal Public Defender Office subsequently entered its
appearance on Rodríguez's behalf.
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appointed to represent Rodríguez on appeal. At the time of this
filing, however, Rodríguez had another appeal pending in this court
(No. 14-1010) stemming from the same district court case. In that
appeal, the details of which are not relevant here, Rodríguez had
challenged the district court's denial of his motion for post-
conviction relief under 28 U.S.C. § 2255. As the government notes,
other than listing the district court docket number, Rodríguez's
December 8 filing contained no information about the judgment or
order being appealed. See Fed. R. App. P. 3(c)(1)(B).
Accordingly, the clerk's office docketed the form in Rodríguez's
then-pending § 2255 appeal. We construed the document as a motion
for appointment of counsel in that § 2255 appeal and proceeded to
deny the motion.
Ultimately, we need not decide whether the December 8
form satisfied Rule 3. Even assuming that it did not, Rodríguez
subsequently clarified his intent to appeal the district court's
denial of his motion for sentence reduction in two pro se letters
dated January 12 and January 19, 2015, respectively.2 The first
of these documents was filed less than fourteen days after the
district court's December 30 order rejecting the magistrate
judge's report and recommendation. This ruling was an appealable
2
While these letters were not received until later, under
the so-called "prison mailbox" rule, the dates that the documents
were "deposited in the institution's internal mail system" govern
the timeliness analysis. Fed. R. App. P. 4(c)(1).
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final order. See United States v. Akinola, 985 F.2d 1105, 1108
(1st Cir. 1993). While not expressly styled as a notice of appeal,
the January 12 letter "plainly evidence[d] [Rodríguez's] intention
to appeal" the denial of his motion to reduce sentence. Campiti
v. Matesanz, 333 F.3d 317, 320 (1st Cir. 2003). Accordingly, the
document satisfies the liberal construction of Rule 3 that we
afford pro se litigants. See DeLong v. Dickhaut, 715 F.3d 382,
386 (1st Cir. 2013); Campiti, 333 F.3d at 320.3
III.
In light of the unique circumstances presented by this
appeal, remand to the district court for it to apply AD 14-426 is
3 The government raises two additional arguments on the issue
of timeliness. First, it contends that, because his opening brief
cited only the February 18 form, Rodríguez has waived any reliance
on the December 8 form or the subsequent clarifying letters. While
we "[o]rdinarily" treat arguments raised for the first time in a
reply brief as waived, "we may make an exception where justice so
requires and where the opposing party would not be unfairly
prejudiced by our considering the issue." United States v. Fields,
823 F.3d 20, 32 n.8 (1st Cir. 2016) (citation and internal
quotation marks omitted). In the present case, in compliance with
our express order, the government fully briefed the timeliness of
Rodríguez's appeal, including discussion of the December 8 form
and January letters. Rodríguez did the same in his reply. In
these circumstances, we perceive no possibility of prejudice and,
accordingly, excuse any waiver by Rodríguez.
The government also maintains that Rodríguez withdrew all
relevant filings in a February 2015 document, filed in appeal No.
14-1010, purporting to withdraw "all previously motioned matters
before this Court." But the form and our subsequent judgment
dismissing the appeal were expressly limited to appeal No. 14-
1010. Accordingly, we decline to read Rodríguez's pro se filing
as encompassing the instant unrelated appeal.
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the prudent course. We have ordered similar remands in at least
two prior decisions. See United States v. Ahrendt, 560 F.3d 69
(1st Cir. 2009); United States v. Godin, 522 F.3d 133 (1st Cir.
2008). Godin and Ahrendt involved challenges to the district
court's refusal to "group" certain prior offenses for purposes of
calculating the GSR. When the defendants had been sentenced, the
applicable guideline provided that prior offenses were to be
counted separately unless they "(A) occurred on the same occasion,
(B) were part of a single common scheme or plan, or (C) were
consolidated for trial or sentencing." Ahrendt, 560 F.3d at 78
(quoting U.S.S.G. §4A1.2(a)(2) cmt. n.3 (2004)). In both cases,
we concluded that the district court had correctly applied that
guideline provision. While the appeals were pending, however, the
Sentencing Commission adopted a non-retroactive amendment under
which prior offenses were to be counted as one if "the sentences
were imposed on the same day." Id. at 79 (quoting U.S.S.G.
§4A1.2(a)(2)) (emphasis omitted). In both Godin and Ahrendt, the
defendants' prior offenses would have been grouped together under
this amended provision. We recognized that, because the amendment
was non-retroactive, "neither defendant was entitled . . . to a
remand because neither could show that an error occurred at
sentencing." Id. at 80. Notwithstanding the lack of error, we
deemed it prudent to remand, id., to allow the sentencing judge
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the opportunity "to consider the Commission's current thinking,"
as reflected in the amendment, Godin, 522 F.3d at 136.
We think that the present appeal calls for a similar
result. On November 6, 2014, facing the prospect of thousands of
sentence reduction motions, the District of Puerto Rico wisely
issued AD 14-426 to assure the orderly and consistent processing
of those filings. Rodríguez moved to reduce his sentence less
than two weeks later. Indeed, Rodríguez's § 3582(c)(2) motion was
the first decided by the district judge in this case. The court
denied Rodríguez's motion before allowing the newly adopted AD 14-
426 process to play out. As described above, Rodríguez clearly
indicated his intent to appeal that decision on January 12, 2015,
thereby divesting the district court of jurisdiction. See United
States v. George, 841 F.3d 55, 71 (1st Cir. 2016). Over the course
of the approximately fifteen months after its initial denial of
Rodríguez's motion, the district court considered fourteen similar
motions by Rodríguez's co-defendants. Each of these motions, other
than those filed by defendants who had been sentenced to the
statutory minimum term and were therefore ineligible, were decided
according to the process outlined in AD 14-426.
In these unique circumstances, the most prudent course
is a remand to the district court to follow the AD 14-426 process.4
4 In light of this conclusion, we need not consider the
alternative grounds for remand advocated by Rodríguez.
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Such a remand will allow the court to benefit from the wealth of
experience that it has gained adjudicating motions to reduce
sentences pursuant to AD 14-426. This process was brand-new when
the court ruled on Rodríguez's motion. Remand will also foster
confidence in the judicial system by ensuring that Rodríguez's
motion is handled similarly to those of his ten co-defendants who
were potentially eligible for a sentence reduction. We note that
the question of whether to grant a sentence reduction "is a matter
[Congress] committed to the sentencing court's sound discretion."
United States v. Zayas-Ortiz, 808 F.3d 520, 523 (1st Cir. 2015)
(alteration in original) (citation omitted). Accordingly, we
express no opinion as to the proper outcome on remand.
IV.
For the foregoing reasons, we VACATE the district
court's orders denying Rodríguez's motion to reduce sentence and
remand for further proceedings consistent with this opinion.
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