United States v. Ortiz, 2014 U.S. App. LEXIS 1536

Background

Ortiz failed to appear for a Puerto Rico sentencing in April 2011, was convicted in absentia of contempt, and later was arrested on federal charges for possession of ammunition by a felon; he pleaded guilty in federal court.
The PSI included two criminal-history points for the in absentia contempt conviction, producing a GSR of 21–27 months (Offense Level 12, CHC IV).
At sentencing the defense argued the contempt conviction was invalid under Puerto Rico law; the district court refused to remove the conviction but granted a 36‑month upward variance.
Within 14 days the defense filed a post-judgment motion (styled "Motion to Reconsider") asserting the Commonwealth had vacated the contempt conviction and requesting a corrected GSR and lower sentence; the next day defense filed a notice of appeal of the judgment and sentence.
The district court denied the Rule 35(a)-type motion after the notice of appeal; the defendant did not amend or file a new notice of appeal to challenge that denial. The government and parties briefed as if both orders were before the court.

Issues

Issue	Ortiz's Argument	Government's Argument	Held
Whether an original notice of appeal filed after a timely Rule 35(a) motion but before the district court rules suffices to confer appellate jurisdiction over the district court's later denial of that motion	The original notice of appeal encompassed the sentence and post-judgment proceedings	The notice of appeal did not designate the post-judgment order and therefore does not permit review of the post-judgment denial	The original, unamended notice did not create jurisdiction to review the later denial; Ortiz needed to amend or file a new notice to appeal that order
Proper characterization of the post-judgment motion	Motion fits Rule 35(a) because it sought correction of a clear sentencing error within 14 days	Same — the motion was functionally a Rule 35(a) motion	The motion was a Rule 35(a) motion and the district court retained authority to decide it despite the pending notice of appeal
Whether the inclusion of the vacated contempt conviction in the CHC was error and reviewable	The vacated contempt conviction should not have been counted and warranted resentencing	The district court’s upward variance reflected conduct and would stand despite CHC error	The vacated contempt conviction was clearly erroneous to include; Ortiz forfeited timely objection but plain‑error review applies and is satisfied
Whether the sentencing error was prejudicial (affected substantial rights)	Lowering the CHC and GSR likely would have produced a lower sentence given the variance was measured from the (erroneous) GSR	The district court’s emphasis on aggravating conduct would have produced the same 36‑month sentence	The error affected substantial rights: given the GSR mechanics a resentencing is reasonably likely to yield a lower sentence; vacate and remand for resentencing

Key Cases Cited

United States v. Moran, 393 F.3d 1 (1st Cir. 2004) (character of post-judgment motion determined by substance)
United States v. Morillo, 8 F.3d 864 (1st Cir. 1993) (Rule 35(a) paradigmatic corrections)
Constructora Andrade Gutiérrez, S.A. v. Am. Int'l Ins. Co., 467 F.3d 38 (1st Cir. 2006) (Rule 3 designation requirement is jurisdictional)
United States v. Cartwright, 413 F.3d 1295 (11th Cir. 2005) (post-appeal denial of Rule 35(a) not reviewable absent amended/new notice)
United States v. Turbides-Leonardo, 468 F.3d 34 (1st Cir. 2006) (plain-error standard for prejudice in sentencing appeals)
Mateo v. United States, 398 F.3d 126 (1st Cir. 2005) (vacated convictions should not be counted in CHC)
United States v. Fagans, 406 F.3d 138 (2d Cir. 2005) (erroneous GSR can taint a non-Guidelines sentence)
United States v. McGhee, 651 F.3d 153 (1st Cir. 2011) (a court’s variance does not show GSR was irrelevant unless court says so)
United States v. Duarte, 246 F.3d 56 (1st Cir. 2001) (framework for plain-error review)