877 F.3d 1035
11th Cir.
2017

UNITED STATES of America, Plaintiff-Appellee, v. Lavoris F. MARTIN, Defendant-Appellant.

No. 16-17353

United States Court of Appeals, Eleventh Circuit.

August 18, 2017

867 F.3d 1228 | 1035-1037

Non-Argument Calendar

Id. (authorizing the production of evidence “for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation“).

Nor did the district court err by concluding Applicants have produced “reliable indications of the likelihood that proceedings will be instituted within a reasonable time.” Application of Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA) Inc., 747 F.3d 1262, 1270 (11th Cir. 2014) (quoting In re Letter of Request from the Crown Prosecution Serv. of the U.K., 870 F.2d 686, 692 (D.C. Cir. 1989)). Applicants maintain that they will file proceedings in Luxembourg within forty-five days of receiving the discovery sought under § 1782. The application to the district court also included specific evidence supporting Applicants’ claims. For example, Applicants cited an e-mail from a former member of Acheron‘s Board of Directors, Eric Kalfon, confirming that he had resigned because of Paul‘s “effective control of Litai.”7

Finally, Litai contends Applicants are not “interested persons” within the meaning of § 1782. We disagree. In Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 124 S.Ct. 2466, 159 L.Ed.2d 355 (2004), the Supreme Court concluded the applicants, who had filed an antitrust complaint with the Directorate General for Competition of the European Union, were “interested persons” within the meaning of § 1782 because they had significant “participation rights” in the proceedings. Id. at 250, 256, 124 S.Ct. 2466. The Supreme Court emphasized that, as part of the process, the applicants had the right to prompt an investigation, to submit evidence for consideration, and to proceed to court if the investigation was discontinued or the complaint was dismissed. Id. at 256, 124 S.Ct. 2466. Here, Applicants plan to file a criminal complaint with a claim for civil damages in Luxembourg. As part of the process, Applicants have the right to submit information for the investigating judge‘s consideration. A criminal investigation will begin unless the judge concludes the complaint is inadmissible. Any of the parties can appeal a decision not to proceed.

AFFIRMED.

Emily M. Smachetti, Aimee Carmen Jimenez, Andrea G. Hoffman, Wifredo A. Ferrer, Eloisa Delgado Fernandez, Jonathan Colan, U.S. Attorney‘s Office, Miami, FL, for Plaintiff-Appellee.

Lavoris F. Martin, FDC Miami—Inmate Legal Mail, Miami, FL, for Defendant-Appellant.

Before WILSON, JORDAN and ROSENBAUM, Circuit Judges.

PER CURIAM:

We vacate our prior opinion, United States v. Martin, 867 F.3d 1228 (11th Cir. 2017), and substitute the following opinion in its place.

Lavoris F. Martin, a federal prisoner, appeals the district court‘s denial of his motion requesting a judicial recommendation to the Bureau of Prisons (BOP) for placement in a residential re-entry center (RRC) 12 months prior to the end of his sentence. We dismiss Martin‘s appeal because the denial of a request for a judicial recommendation is not a final order subject to appellate review.

Martin pleaded guilty to one count of conspiracy to possess with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 846. He was sentenced to 60 months’ imprisonment, followed by a 4-year term of supervised release. Several years later, he filed a pro se motion requesting that the district judge who sentenced him recommend that the BOP place him in an RRC 12 months prior to the end of his sentence. He contended that a prolonged placement at an RRC would help aid his re-integration into society.

Our appellate jurisdiction is limited to reviewing “final decisions” of district courts. 28 U.S.C. § 1291. “Any order, recommendation, or request by a sentencing court that a convicted person serve a term of imprisonment in a community corrections facility shall have no binding effect on the authority of the [BOP] . . . to determine or change the place of imprisonment of that person.” 18 U.S.C. § 3621(b)(5). Although we have not yet addressed our jurisdiction to review a district court‘s refusal to issue a non-binding recommendation to the BOP, other circuits have held that such non-binding recommendations are not “final decisions” and, therefore, are not reviewable on appeal. See United States v. Melendez, 279 F.3d 16, 18 (1st Cir. 2002) (per curiam) (holding that no jurisdiction existed to review the district court‘s refusal to recommend that the BOP admit the defendant to a drug-treatment program because such a recommendation is non-binding and “within the sole discretion of the [BOP]“); United States v. Yousef, 327 F.3d 56, 165 (2d Cir. 2003) (holding that such recommendations are neither “final decisions” under 28 U.S.C. § 1291 nor “final sentence[s]” under 18 U.S.C. § 3742); United States v. Serafini, 233 F.3d 758, 777 (3d Cir. 2000) (holding that a district court‘s recommendation that the BOP place a defendant in “community confinement” in a county residential center was not a “final order” subject to review); United States v. De La Pena-Juarez, 214 F.3d 594, 601 (5th Cir. 2000) (holding that a district court‘s non-binding recommendation “is not an order from which [a defendant] can appeal“); United States v. Kerr, 472 F.3d 517, 520 (8th Cir. 2006) (holding that a non-binding recommendation to the BOP is “not reviewable as it is not a decision of the district court“); United States v. Ceballos, 671 F.3d 852, 855-56 (9th Cir. 2011) (per curiam) (holding that a recommendation to the BOP is “not part of the sentence . . . nor . . . a final order from which an appeal lies“).

We are persuaded by the other circuits that have addressed this issue and hold that a district court‘s denial of a non-binding recommendation to the BOP is not a final order subject to appellate review. Accordingly, we dismiss Martin‘s appeal for lack of jurisdiction.

DISMISSED.

Notes

7
Litai contends the e-mail should not be considered because it is double hearsay. However, Litai has not provided any support for requiring that applications be supported by admissible evidence. Litai‘s remaining attacks on the e-mail‘s reliability are unpersuasive.
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