United States v. Oscar Ceballos , 671 F.3d 852 ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 09-50502
Plaintiff-Appellee,
v.  D.C. No.
2:09-cr-00094-R-1
OSCAR CEBALLOS, AKA Chuco,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted October 14, 2011*
Pasadena, California
Filed November 7, 2011
Before: Barry G. Silverman and Kim McLane Wardlaw,
Circuit Judges, and William K. Sessions III,
District Judge.**
Per Curiam Opinion
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable William K. Sessions III, District Judge, United States
District Court for the District of Vermont, sitting by designation.
20093
UNITED STATES v. CEBALLOS 20095
COUNSEL
Michelle D. Anderson, Burlington, Vermont, for the
defendant-appellant.
André Birotte, Jr., United States Attorney, Robert E. Dugdale
and Scott M. Garringer, Assistant United States Attorneys,
Los Angeles, California, for the plaintiff-appellee.
OPINION
PER CURIAM:
Oscar Ceballos pleaded guilty to one count of conspiracy
to distribute methamphetamine. He requested that the district
court recommend a Southern California housing designation
to the Bureau of Prisons. At the sentencing hearing, neither
the district court nor counsel addressed this request. Eight
days later, Ceballos and the government filed a joint stipula-
tion asking the court to revise the Judgment and Commitment
Order to include the designation recommendation. The district
court denied the request. Ceballos appeals, asserting jurisdic-
tion under 28 U.S.C. § 1291 and/or 18 U.S.C. § 3742.
Because we lack jurisdiction to review a district court’s non-
binding housing recommendation, we dismiss the appeal.
20096 UNITED STATES v. CEBALLOS
I. BACKGROUND
Oscar Ceballos entered a plea agreement to one count of
conspiracy to distribute methamphetamine in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(B)(viii). Ceballos and the gov-
ernment agreed that he was a career offender and that 188
months was the low end of the Guidelines range. In his sen-
tencing memorandum, Ceballos requested that the district
court recommend a Southern California housing designation
to the Bureau of Prisons. See 18 U.S.C. § 3621(b). On Sep-
tember 28, 2009, the district court sentenced Ceballos to 188
months imprisonment. The district court did not address the
request for a designation recommendation, and Ceballos
failed to object. The Judgment and Commitment Order was
filed that same day.
On October 6, 2009, Ceballos and the government filed a
joint stipulation and proposed order asking the district court
to revise the Judgment and Commitment Order to add a rec-
ommendation to the Bureau of Prisons that Ceballos serve his
sentence at a facility in Southern California. According to the
stipulation:
Mr. Ceballos was born and raised in Southern Cali-
fornia and his parents, his siblings and his children
live here. Mr. Ceballos hopes to serve his sentence
in a facility near his family support network. His
family likewise hopes to see Mr. Ceballos as often
as possible and cannot afford to travel long distances
to see him during his incarceration. Accordingly, the
parties stipulate that the Judgment and Commitment
Order be revised to include a recommendation by the
Court to the Bureau of Prisons that Mr. Caballos
[sic] serve his prison sentence at a facility in South-
ern California. All other terms shall remain in full
force and effect.
The district court denied the stipulation, writing by hand on
the proposed order: “Denied. It is the Bureau of Prisons’
UNITED STATES v. CEBALLOS 20097
responsibility for the housing of prison inmates. Mr. Ceballos
should request his housing from the Bureau of Prisons.” This
appeal ensued.
II. DISCUSSION
1. The District Court Lacked Authority to Amend the
Judgment.
[1] “[A] district court does not have inherent power to
resentence defendants at any time. Its authority to do so must
flow either from the court of appeals mandate . . . or from
Federal Rule of Criminal Procedure 35.” United States v.
Handa, 122 F.3d 690, 691 (9th Cir. 1997) (citation omitted);
see United States v. Caterino, 29 F.3d 1390, 1394 (9th Cir.
1994) (“The authority to change a sentence must derive from
some federal statutory authority.”); United States v. Smartt,
129 F.3d 539, 540 (10th Cir. 1997) (same).
[2] Ceballos offers no legal support authorizing the district
court to amend a judgment and commitment order eight days
after it was entered. Under Rule 35, a district court may “cor-
rect a sentence that resulted from arithmetical, technical, or
other clear error” within fourteen days of imposing the sen-
tence. Fed. R. Crim. P. 35(a). No such error was made here.
Similarly, there was no government motion to amend for sub-
stantial assistance. See Fed. R. Crim. P. 35(b). Nor was there
a basis to amend due to a clerical error under Federal Rule of
Criminal Procedure 36. See United States v. Penna, 319 F.3d
509, 513 (9th Cir. 2003) (“Rule 36 is a vehicle for correcting
clerical mistakes but it may not be used to correct judicial
errors in sentencing.”) (emphasis in original).
[3] Because the district court had no authority to amend
the sentence after entry of the judgment and commitment
order, its refusal to do so was not an error.1
1
We also reject the claim that the district court misunderstood its
authority to make a housing recommendation to the Bureau of Prisons.
20098 UNITED STATES v. CEBALLOS
2. We Lack Jurisdiction Over This Appeal.
[4] The Bureau of Prisons has the statutory authority to
choose the locations where prisoners serve their sentence. See
18 U.S.C. § 3621(b) (“The Bureau of Prisons shall designate
the place of the prisoner’s imprisonment.”); Rodriguez v.
Smith, 541 F.3d 1180 (9th Cir. 2008) (“Under 18 U.S.C.
§ 3621(b), the BOP has authority to designate the place of an
inmate’s imprisonment.”). In making those designation deci-
sions, the BOP is required to consider, among other things:
(4) any statement by the court that imposed the
sentence—
(A) concerning the purposes for which the
sentence to imprisonment was determined
to be warranted; or
(B) recommending a type of correctional facility as
appropriate.
18 U.S.C. § 3621(b). Section 3621(b) thus gives non-binding
weight to recommendations made by the sentencing court.
“While a [district court] judge has wide discretion in deter-
mining the length and type of sentence, the court has no juris-
diction to select the place where the sentence will be served.
Authority to determine place of confinement resides in the
executive branch of government and is delegated to the
Bureau of Prisons.” United States v. Dragna, 746 F.2d 457,
458 (9th Cir. 1984) (per curiam) (citations omitted); see also
United States v. Williams, 65 F.3d 301, 307 (2d Cir. 1995)
(same).
The district court’s handwritten denial of the stipulation correctly explains
that the Bureau of Prisons is responsible for making housing designations.
See 18 U.S.C. § 3621(b).
UNITED STATES v. CEBALLOS 20099
[5] Our circuit has not addressed the question of whether
an appeal lies from a district court’s exercise of its discretion
to recommend or to refuse to recommend a housing designa-
tion in a precedential opinion. However, several other circuit
courts have addressed district court recommendations to the
Bureau of Prisons, and have concluded that they are non-
reviewable. The Second Circuit’s decision in United States v.
Pineyro, 112 F.3d 43 (2d Cir. 1997) (per curiam), is instruc-
tive. There a prisoner appealed a district court’s “non-binding
recommendation that BOP not credit [him] with the time he
spent in state custody.” Id. at 45. The Second Circuit Court of
Appeals analogized this recommendation to a housing recom-
mendation under the statute at issue here, 18 U.S.C.
§ 3621(b), and reasoned that the district court did not have
any power to control the Bureau of Prison’s decisions or
actions in either situation. Id. The court thus dismissed the
appeal for lack of jurisdiction, because “[t]he non-binding
recommendation does not fit within the class of final orders
appealable either under 28 U.S.C. § 1291 (final decisions of
district courts) or 18 U.S.C. § 3742 (final sentencing orders).”
Id.
Every other circuit that has confronted this issue has
reached a similar conclusion—a recommendation to the
Bureau of Prisons is not part of a sentence and cannot be
appealed. See United States v. Kerr, 472 F.3d 517, 520 (8th
Cir. 2006) (“[A] non-binding recommendation to the BOP is
not reviewable as it is not a final decision of the district
court.”); United States v. Yousef, 327 F.3d 56, 165 (2d Cir.
2003) (“Because these recommendations are not binding on
the Bureau of Prisons, they are neither appealable as ‘final
decisions’ under 28 U.S.C. § 1291 nor as a ‘final sentence’
under 18 U.S.C. § 3742.”); United States v. Melendez, 279
F.3d 16, 18 (1st Cir. 2002) (same); United States v. Serafini,
233 F.3d 758, 778 (3d Cir. 2000) (same); United States v. De
La Pena-Juarez, 214 F.3d 594, 601 (5th Cir. 2000) (same).
20100 UNITED STATES v. CEBALLOS
[6] The reasoning of the other circuit courts on this issue
is sound. We join them in concluding that a district court’s
recommendation to the Bureau of Prisons is just that—a rec-
ommendation. It is not part of the sentence imposed by the
district court, nor is it a final order from which an appeal lies.
See 28 U.S.C. § 1291, 18 U.S.C. § 3742. Accordingly, we
lack jurisdiction.2
III. CONCLUSION
For the foregoing reasons, this appeal is DISMISSED.
2
We note that this holding does not deprive district courts of the author-
ity to make (or not make) non-binding recommendations to the Bureau of
Prisons at any time—including but not limited to—during the sentencing
colloquy.