United States v. Melendez ( 2021 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 20-1575
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    JUNITO MELENDEZ, A/K/A JUNIOR,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Nathaniel M. Gorton, U.S. District Judge]
    Before
    Kayatta, Selya, and Barron,
    Circuit Judges.
    Nicholas D. Smith, with whom David B. Smith and David B. Smith
    PLLC were on brief, for appellant.
    Greg A. Friedholm, Assistant U.S. Attorney, with whom Andrew
    E. Lelling, United States Attorney, was on brief, for appellee.
    October 22, 2021
    BARRON, Circuit Judge.             Junito Melendez appeals the
    denial of his motion under the First Step Act to reduce his
    sentence for a more than decade-old federal drug offense.                        The
    wrinkle is that he has already served his sentence for that crime.
    The District Court denied the motion on that basis, deeming it
    moot.     Melendez now contends on appeal that it is not, because, if
    he   is   granted   the    reduction    to     his   former   sentence    that    he
    requests, then he will be spared the 10-year mandatory minimum
    prison sentence that he otherwise will have to serve if he is
    convicted of the new federal drug offense for which he has been
    indicted. Because we are not persuaded that the sentence reduction
    that Melendez seeks under the First Step Act could have that
    consequence even if it were granted, we agree with the District
    Court that the motion is moot, albeit on somewhat different
    grounds.
    I.
    The First Step Act made retroactive the Fair Sentencing
    Act's changes to the mandatory minimum prison sentences for certain
    federal drug offenses. First Step Act, Pub. L. No. 115-391, § 404,
    
    132 Stat. 5194
    , 5222 (2018) (codified as amended in scattered
    sections of 18 U.S.C., 21 U.S.C., and 34 U.S.C.).                   Those changes
    increased the amount of cocaine base that must be involved in
    cocaine-related federal offenses to trigger a 5-year mandatory
    minimum      prison       sentence     for      them.         See    21    U.S.C.
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    § 841(b)(1)(B)(iii); Fair Sentencing Act, Pub. L. No. 111-220,
    § 2, 124 Stat 2372, 2373 (2010).
    The First Step Act also provides a means by which a
    defendant can move under 
    18 U.S.C. § 3582
    (c)(1)(B) for a reduced
    sentence consistent with the terms of the Fair Sentencing Act.
    See First Step Act § 404, 132 Stat. at 5222.              On December 23, 2019,
    Melendez did just that, by filing the motion that is at issue in
    this appeal.
    Melendez's First Step Act motion concerns the sentence
    that    he   received   on     December    21,    2000,    in   the    District      of
    Massachusetts, for his convictions of, among other things, two
    counts of possession with intent to distribute cocaine base.                          He
    was ultimately sentenced for those convictions to 109 months'
    imprisonment, followed by 5 years of supervised release.
    Melendez's supervised release from prison began on March
    2007, but he thereafter violated the terms of his supervised
    release three times.           In consequence, he was sentenced in June
    2010,   to   six   months'     imprisonment,       with    no   further       term    of
    supervised release.       Thus, as of a decade ago, he had fully served
    the sentence that he received in 2000.
    Despite    that    fact,     Melendez   moved      in    2019,    in    the
    District     of   Massachusetts,     to    have   his     by-then     fully    served
    sentence reduced pursuant to the First Step Act.                It is that motion
    that is our focus here.
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    Melendez's motion contends that the prison sentence that
    he received in 2000 for his cocaine-related offenses should be
    reduced by more than half, to a prison sentence of 51 months,
    consistent with the higher amount of cocaine base necessary to
    trigger the 5-year mandatory minimum prison sentence under the
    Fair Sentencing Act for those offenses.            He further contends that
    the request for the reduction is not moot, even though he has fully
    served that sentence, because he is presently under indictment on
    a charge of conspiracy to distribute cocaine in violation of 
    21 U.S.C. § 846
    , which alleges that 500 grams of the cocaine involved
    in the conspiracy were "reasonably foreseeable and attributable"
    to Melendez.
    Melendez explains that if he is convicted of that pending
    charge, then he will face a mandatory minimum sentence of 10 years
    of   imprisonment   if   he   is   found    to   have   "commit[ted]   such   a
    violation after a prior conviction for a serious drug felony or
    serious violent felony." 
    21 U.S.C. § 841
    (b)(1)(B)(ii). He further
    explains that a "serious drug felony" is defined in 
    21 U.S.C. § 802
    (57) as "an offense described in section 924(e)(2) of [T]itle 18
    for which (A) the offender served a term of imprisonment of more
    than 12 months; and (B) the offender's release from any term of
    imprisonment was within 15 years of the commencement of the instant
    offense."
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    Thus, Melendez argues, he will be subject to the 10-year
    mandatory minimum sentence if he is convicted of the pending
    federal drug charge unless he can show that he was not "release[d]
    from any term of imprisonment" that was imposed on him for his
    federal drug convictions "within 15 years" of when he allegedly
    committed    the   pending   drug   conspiracy   offense.   However,   he
    contends, he will only be able to make that showing if the prison
    sentence that he received in 2000 is retroactively reduced pursuant
    to the First Step Act to a prison sentence of 51 months.          Hence,
    he argues, it follows that his First Step Act motion to reduce
    that sentence is not moot, because that motion is the means by
    which he can ensure that the new sentence that he faces will be
    shorter than it otherwise must be.
    The District Court nonetheless denied Melendez's First
    Step Act motion as moot, because it determined that Melendez lacked
    a "continu[ing] . . . personal stake in the outcome" of the motion.
    The District Court explained that, because Melendez already had
    served the sentence that he sought to have reduced, his First Step
    Act motion was moot unless he could show that the 10-year mandatory
    minimum prison sentence that he would face if he were convicted of
    his pending federal drug offense charge would be a "collateral
    consequence" of that prior sentence.         But, the District Court
    explained, Melendez failed to do so.
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    The District Court explained that the supervised release
    components of his 2000 sentence are "component[s] of one unified
    [2000] sentence." (quoting United States v. Ketter, 
    908 F.3d 61
    ,
    65 (4th Cir. 2018)).   It thus reasoned that, "even if [Melendez]
    w[as] entitled to First Step Act relief and a revised sentence of
    51 months, he has not demonstrated that he would have completed
    that sentence . . . more than 15 years before" March 2019.      In so
    concluding, the District Court appeared to be imagining that the
    sentence, as reduced, would not be for 51 months of imprisonment
    full stop, but instead would be for 51 months of imprisonment
    followed by a period of supervised release of at least three years.
    The District Court also found on the merits that, in the
    event it did have jurisdiction, it would "in its discretion [under
    the First Step Act] decline to reduce [the] defendant's sentence."
    The District Court was "dissuaded from exercising its discretion
    in   [Melendez]'s   favor"   for   two   reasons:   the   defendant's
    "propensity for recidivism and a lack of remorse for his unlawful
    conduct" as well as the underlying policy concern of rewarding
    defendants for such conduct by granting sentence reductions under
    the First Step Act.
    Following the District Court's ruling, Melendez filed
    this timely appeal in which he asks us to vacate the District
    Court's denial of his First Step Act motion on mootness grounds
    and remand it to the District Court so that it may be considered
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    on the merits "consistent with the[] [resentencing] principles"
    Melendez contends the First Step Act advances.    Our review is de
    novo.   See Ford v. Bender, 
    768 F.3d 15
    , 29 (1st Cir. 2014).
    II.
    Melendez acknowledges that the District Court addressed
    the merits of his motion, notwithstanding the separate ruling on
    mootness.     But, he contends that the District Court's       merits
    ruling was at the very least "ambiguous," because we cannot know
    how the District Court would rule on remand if we were to adopt
    his construction of the First Step Act and thus hold that his
    motion under that statute to reduce his already served sentence is
    not moot.     For, in that event, he argues, the District Court's
    reasons for denying him his requested relief would no longer be
    applicable.
    We have our doubts about Melendez's contention in this
    regard.     But, it is true that, before we can reach the aspect of
    the District Court's ruling that concerns the merits of Melendez's
    First Step Act motion, we must first address whether that motion
    is moot.    For, if it is, then we have no jurisdiction to consider
    the motion on the merits.     See United States v. Duclos, 
    382 F.3d 62
    , 65 (1st Cir. 2004) (explaining that mootness is a "threshold"
    jurisdictional issue).
    As an initial matter, we note that the District Court
    premised its ruling as to mootness on the understanding that
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    Melendez, in seeking a reduction of his fully-served prior sentence
    to 51 months of imprisonment, was contemplating that some period
    of supervised release would be tacked on to it.   It is not so clear
    to us that he was.   But, Melendez does not dispute on appeal the
    District Court's assumption that some such period would be tacked
    on even to the reduced sentence that he seeks.     Thus, on appeal,
    for his contention that his First Step Act motion is not moot to
    have any hope, he needs to show the following.     He needs to show
    that even if the reduced prison sentence that he seeks were also
    subject to a period of supervised release, his "release" from the
    resulting "term of imprisonment" would have occurred -- in the
    hypothetical world he asks us to imagine -- more than fifteen years
    in advance of March 2019, the alleged start date of his newly
    charged criminal conduct.
    To make that case,   Melendez asserts that no matter how
    long a period of supervised release might be tacked on to the 51-
    month prison sentence that he contends should be retroactively
    "imposed" pursuant to the First Step Act, none of that period would
    constitute any portion of the "term of imprisonment" referenced in
    
    21 U.S.C. § 802
    (57).   Thus, he contends, the reduction that he
    seeks under the First Step Act would ensure that his "term of
    imprisonment" would have come to an end prior to March 2004, such
    that he would not be at risk of facing the 10-year mandatory
    minimum prison sentence that would be imposed if he were to be
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    convicted      of    his    pending         federal    drug    conspiracy      charge,
    regardless of how long a period of supervised release were to be
    tacked on to it.
    In pressing this contention, Melendez acknowledges that
    the   Supreme       Court      held    in    Johnson    v.    United     States   that
    "postrevocation sanctions," including prison time for supervised
    release violations, are "part of the penalty for the initial
    offense,”      
    529 U.S. 694
    , 700 (2000).               He also acknowledges that
    the Supreme Court then reinforced that conclusion only recently in
    United States v. Haymond, 
    139 S. Ct. 2369
    , 2380 (2019), when it
    explained that "[t]he defendant receives a term of supervised
    release thanks to his initial offense, and whether that release is
    later revoked or sustained, it constitutes a part of the final
    sentence for his crime."              But, he contends, those precedents have
    "no   purchase      on   the    purely      interpretive      question    of   whether
    Congress intended the phrase 'term of imprisonment' in 
    21 U.S.C. § 802
    (57)    to    incorporate        punishment      for    supervised      release
    violations.”
    Here, too, we have our doubts.             But, even if we were to
    overlook them, and thus treat the statutory phrase "term of" as if
    it were referring only to the portion of the sentence "for which"
    the defendant is required to be in prison and not to include even
    the portion of time a defendant serves in prison for supervised
    release violations, Melendez still must show more.                     Specifically,
    - 9 -
    he must show that the retroactive reduction in his already-served
    prison sentence would affect the date of his "release,"            
    21 U.S.C. § 802
    (57), from it for purposes of § 841(b)(1)(B)(ii).
    The problem, though, is that the word "release" -- in
    ordinary parlance -- is most naturally read to refer to the moment
    that a person is freed from a "term of imprisonment" that is in
    fact.   It is not easily read to refer to the moment that a person
    would have been released from a "term of imprisonment" had his
    sentence been shorter.
    Melendez   resists    this    straightforward      reading    of
    "release" by arguing that "the First Step Act directs courts to
    address 'backward-looking questions' with contemporary answers"
    thereby implicitly permitting "revisionist history." (quotations
    and emphasis omitted).   As a result, he contends, the fact that he
    was released in March 2007 should not impact whether any of his
    prior   drug   convictions   qualify    as   a   "serious   drug   felony."
    Instead, he argues that it is more consistent with the retroactive
    nature of the First Step Act for a court to imagine that he had
    been released after serving the reduced sentence.
    But, the word "release" appears in § 802(57), which
    defines a "serious drug felony" as a certain category of offenses
    "for which" the defendant "served a term of imprisonment for more
    than 12 months" and "for which" the defendant's "release from any
    term of imprisonment was within 15 years of the commencement of
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    the instant offense."        Id. § 802(57) (emphases added).                The use of
    the past tense in setting out both elements of a "serious drug
    felony"    accords    with    a   focus     on    the   historical         facts    of   a
    defendant's      sentence     when        determining      whether         § 802(57)'s
    definition is met.        See McNeill v. United States, 
    563 U.S. 816
    ,
    820   (2011)    (finding     that    the    "plain      text"    of    a    sentencing
    enhancement required courts to look to the state of the law at the
    time of the conviction irrespective of any subsequent amendments).
    Moreover,      the      First    Step       Act,    in     altering       the
    circumstances in which the mandatory minimum prison sentence that
    Melendez    seeks    to   avoid     triggering      applies,     now    specifically
    requires that a prior "drug felony" conviction only triggers the
    mandatory       minimum      if     it      is    "serious."               
    21 U.S.C. § 841
    (b)(1)(B)(ii).        That suggests that Congress intended for the
    backward-looking language of § 802(57), which defines "serious
    drug felony," to apply to the 10-year mandatory minimum under
    § 841(b)(1)(B)(ii) -- at least in a case such as this, in which
    the only basis for imagining that the original sentence ended much
    sooner than it did is the imposition of a reduced sentence pursuant
    to the First Step Act.1
    We note in this regard that there is no claim that
    1
    Melendez's prior conviction was set aside because he received a
    pardon or a habeas grant based on a finding of actual innocence.
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    Finally,     a    backward-looking    reading      of    the   word
    "release" in a case like this one accords with a reasonable
    understanding of the purposes of § 802(57) and the First Step Act's
    amendments to § 841(b)(1)(B)(ii).             Such a reading takes these
    provisions to be aimed at deterring recidivism by imposing harsher
    penalties on those who commit a new federal drug offense too soon
    after their "release" from prison based on a sentence that was
    imposed for a previous drug conviction.
    Thus, because Melendez was released from            imprisonment
    for   his   prior    convictions,    excluding    the   supervised     release
    violations,     in    March   2007   regardless   of    what   his   "term   of
    imprisonment" for those convictions would be if he were to be
    resentenced under the First Step Act, we do not see how he has a
    "personal stake" in whether his First Step Act motion to reduce
    his   already        complete,   decades-old      sentence     is     granted.
    Accordingly, for these reasons, we affirm the District Court's
    decision and dismiss Melendez's First Step Act motion as moot (and,
    therefore, as beyond the court's jurisdiction).
    III.
    For the reasons given above, the decision of the District
    Court is affirmed.
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