UNITED STATES of America, Appellee, v. Heriberto ALMONTE-REYES, Defendant, Appellant.
No. 13-1934.
United States Court of Appeals, First Circuit.
Feb. 18, 2016.
Finding that the district court did not abuse its discretion in declining to conduct in camera review of the items on GSK‘s privilege log, and finding that the district court properly granted summary judgment to GSK, we affirm the rulings below.
Raymond E. Gillespie, for appellant.
Tiffany V. Monrose, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attоrney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
Before LYNCH, Circuit Judge, SOUTER,* Associate Justice, and STAHL, Circuit Judge.
In this case of first impression in this circuit, we face a question the Supreme Court expressly left open in Setser v. United States, — U.S. —, 132 S.Ct. 1463, 182 L.Ed.2d 455 (2012): whether a federal sentence may be ordered to be consecutive to another federal sentence that is anticipated but not yet imposed. We conclude that it may not. We reverse and remand for resentencing.
I.
On October 4, 2012, Heriberto Almonte-Reyes pleaded guilty in the District of Puerto Rico to conspiracy to import a hundred grams or more of heroin, in violation of
On July 1, 2013, the district court in Puerto Rico sentenced Almonte-Reyes to 120 months of imprisonment, “to be served consecutively to any term to be imposed in a pending case.” (emphasis added). Almonte-Reyes did not object to the consecutive nature of the sentence at the time of sentencing.
On December 19, 2013, Almonte-Reyes pleaded guilty in the Northern District of Georgia to one count of conspiracy to commit money laundering. Guilty Plea and Plea Agreement, United States v. Almonte-Reyes, No. 09-cr-00025 (N.D. Ga. Dec. 19, 2013), ECF No. 500. On October 17, 2014, after the filing of the briefs in this appeal, the Northern District of Georgia sentenced Almonte-Rеyes to 87 months of imprisonment to be served concurrently with the sentence at issue here. Transcript of Sentencing Hearing, United States v. Almonte-Reyes, No. 09-cr-00025 (N.D. Ga. Oct. 17, 2014), ECF No. 568.
The government had argued in its initial briefing that the imposition of the later federal sentence would moot the case. Doubtful, we ordered the parties to make supplemental filings on the issue of mootness. In thеir supplemental filings, Almonte-Reyes took the position that the appeal was not moot, while the government maintained that it was.
II.
To start, we reject the government‘s argument that this appeal is mooted by the imposition of the sentence in the Northern District of Georgia.
The government argues that once the Northern District of Georgia imposed a concurrent sentence, the consecutive nature of the sentence imposed by the District of Puerto Rico ceased to have effect. The reason, the government says, is that the decision of the Northern District of Georgia controls because its sentence came later in time. Fоr that proposition, the government cites Odekirk v. Ryan, 85 F.2d 313, 315 (6th Cir.1936) (“Where ... sentences are imposed by different courts, the intention of the court imposing the second or later sentence is ... controlling....“).
But, the government argues, that the District of Puerto Rico‘s consecutive sentencing decision was superseded by the Northern District of Georgia‘s later-in-time sentence does not mean that the District of Puerto Rico‘s sentence was legally impermissible at the time it was imposed. Rather, the government suggests, we should consider this a situation where developments that take place after an initial sentencing require the adjustment of a sentence. Certain mechanisms are available to prisoners for adjustment of a sentence, the government says, and Almonte-Reyes should seek relief through those means rather than challenging the lawfulness of the initial sentence. Specifically, the government points to
This case is not mooted by the possibility that Almonte-Reyes might succeed in adjusting his sentence through the alternative mechanisms suggested by the government. For one, we do not know the Bu
We proceed to determine whether the District of Puerto Rico acted within its legal authority when it specified Almonte-Reyes‘s sentence to be consecutive to an anticipated but not-yet-imposed federal sentence.3 Our review is de novo as it involves a question of statutory interpretation.4 United States v. Vidal-Reyes, 562 F.3d 43, 48 (1st Cir.2009). The relevant statute provides:
If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively, except that the terms may not run consecutively for an attempt and for another offense that was the sole objective of the attempt. Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.
In Setser, the Supreme Court addressed the question of whether
[Section 3584(a),] which says when concurrent and consecutive sentences may be imposed, and specifies which of those dispositions will be assumed in absence of indication by the sentencing judge, does not cover the situation here. It addresses only “multiple terms of imprisonment ... imposed ... at the same
time” and “a term of imprisonment ... imposed on a defendant who is already subject to an undischarged term of imprisonment.” Here the state sentence is not imposed at the same time as the federal sentence, and the defendant was not already subject to that stаte sentence.
Setser, 132 S.Ct. at 1467 (alterations in original) (citation omitted) (quoting
The Supreme Court suggested that the same logic may not apply when the anticipated sentеnce is federal, although it did not ultimately decide the question:
Setser notes that the text of § 3584(a) does not distinguish between state and federal sentences. If a district court can enter a consecutive sentencing order in advance of an anticipated state sentence, he asks, what is to stop it from issuing such an order in advаnce of an anticipated federal sentence? It could be argued that § 3584(a) impliedly prohibits such an order because it gives that decision to the federal court that sentences the defendant when the other sentence is “already” imposed—and does not speak (of course) to what a state court must do whеn a sentence has already been imposed. It suffices to say, however, that this question is not before us.
We adopt the distinction suggested in Setser‘s footnote four. The Supreme Court‘s reasoning in Setser began with the premise that
In so concluding, we agree with the two other courts of appeals that have decided, following Setser, that a district court does not have the power to impose a sentence consecutive to an anticiрated but not-yet-determined federal sentence. United States v. Obey, 790 F.3d 545, 549 (4th Cir.2015); United States v. Montes-Ruiz, 745 F.3d 1286, 1290-93 (9th Cir.2014).
Not only is this conclusion the best reading of the text of the statute, but it is also consistent with other considerations noted by the Supreme Court in Setser. First,
Second, the outcome we reach is consistent with the principle, recognized by the Setser Court as “undoubtedly true,” that “when it comеs to sentencing, later is always better because the decisionmaker has more information.” Id. at 1471.6
Third, the Court in Setser faced dual sovereignty concerns not present here because both sentences are federal. Id. at 1471. While Setser concluded that respect for state sovereignty supported the exercise of concurrent-vs.-consecutive decisionmaking authority by an earlier sentencing federal court, the situation before us implicates no such dual sovereignty concerns. Id.; see also Quintana-Gomez, 521 F.3d at 497 (pre-Setser case using dual sovereignty as basis for distinguishing between federal court‘s authority to sentence consecutively to anticipated state and federal sentences).
In sum, we conclude that, under
III.
We reverse and remand. On remand, the district court is instructed to strike the portion of the sentence specifying the term of imprisonment “to be served consecutively to any term to be imposed in a pending case.”
UNITED STATES, Appellee, v. Yahyaa IBRAHIM, Defendant, Appellant.
No. 15-1334.
United States Court of Appeals, First Circuit.
Feb. 18, 2016.
Before LYNCH, Circuit Judge, SOUTER, Associate Justice,* and SELYA, Circuit Judge.
SOUTER, Associate Justice.
Yahyaa Ibrahim was indicted for failure to register as a sex offender, and he filed two motions to dismiss the indictment. The first challenged the constitutionality of the registration requirement. No hearing was requested and none was held for 344 days, until after the second motion requested dismissal of the charges for violation of the speedy trial requirement. After a hearing, each was denied, and he pleaded guilty, though subject to the right to appeal the denials of his motions. We affirm.
Judith H. Mizner, Assistant Federal Public Defender, with whom Federal Public Defender Office was on brief, for appellant.
I
On June 4, 2013, Ibrahim was indicted for failure to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA),