*1 America, STATES of UNITED
Appellee, OLA, Carlos SE VILLA-OY a/k/a Caridad, Viejo, Carlitos a/k/a Defendant, Appellant. 12-1264, 12-1463. Nos. Appeals, States Court of First Circuit. Oct. *3 F. Lang appellant.
Rafael Castro for Rivera-Giraud, S. César Assistant Unit- Attorney, ed whom States Rosa Emi- Rodríguez-Vélez, lia United States Attor- ney, Pérez-Sosa, Nelson Assistant United Chief, Division, Attorney, Appellate States F. Assistant Klumper, Thomas brief, Attorney, appel- States were on for lee. LYNCH, Judge,
Before Chief THOMPSON, TORRUELLA and Circuit Judges.
THOMPSON,
Judge.
Circuit
grant
petition
panel
We
rehear-
ing,
previous opinion
withdraw our
in this
see
924(c)(l)(A)(i).1 §
see 18 U.S.C. Guilty The
A. First Plea judge failed inform Sevilla that The August possibility On Sevilla entered into Count Two carried the life agreement government, plead- with the sentence. See United States v. Ortiz-Gar- cia, ing guilty to both counts of the 282 n. indictment. Cir. 2011) stipulated penal- that parties (explaining The that Sevilla was ac- the maximum n possess ty for conspiring countable at least for an offense under 18 U.S.C. Then, setting mandatory explaining 1. After out the minimum firearms.” when ' statutory penalties range applied maximum on Count Guidelines to Sevilla under One, (somewhat unclearly) plea agreement, range stated the told Sev- One, impris- "plus mandatory” illa he also had "a consecutive term of for Count 60 months years onment of I five on Two. think it’s account Count 924(c)(1)(A) § imprisonment leadership is life and is designa- enhancement and his law).2 However, case derived from he did tion as a offender. career The Probation penalties draw Sevilla’s attention to the Office up followed with an addendum which agreement, mentioned standing by its recommendations. maximum correctly penalty stated Then, the Proba- for Two imprisonment, Count was life tion dropped Office a bombshell on the Sevilla said understood. The also proceedings. In a second addendum to neglected tell Sevilla that he did not presentence report, alleged the Office probation, qualify suspended sen- for the first time that Sevilla had mur- tence, or parole.3 Torres-Morales, dered José Manuel a.k.a. (or, “Smurf’), English, “Pitufo” in front Pitufo B. Enters the Scene of the federal courthouse in Hato Rey, Probation filed U.S. Office Sevilla’s Rico, Puerto on November 2007. Pitufo pre-sentence report investigation on No- was a drug-ring fellow who member 18, 2011. applied vember It four-level then supervision. under federal The’brazen enhancement, leadership rather than the murder of supervisee a federal outside the agreed upon parties, two levels courthouse rocked the legal Puerto Rican bumping total level up offense community core. to its *5 on prior 31. Based Sevilla’s five convic- including two violent felonies —it tions — No one has ever been charged with this also Sevilla a labeled career offender and notorious murder. The Probation Office set criminal-history category his at VI.4 learned of alleged Sevilla’s involvement thereafter, witness, from a Shortly cooperating objec- Sevilla filed Carlos Manuel presentence Burgos tions to report Rodriguez (“Burgos”), the as well as a also a fel- augmented the disputing member, memorandum drug-ring low. who claimed that explicitly recognize did possible This court not penalty” accepting that maximum before 924(c)(1)(A) § pen- plea. 11(b)(1)(H). U.S.C. had a maximum the Fed.R.Crim.P. The alty imprisonment of life require until decided rule judge does not the to tell the in December eligibility probation, Ortiz-Garcia 2011—several defendant about for a August suspended months after Sevilla’s parole. collo- See Fed. However, quy. 11(b)(1). F.3d at 285-86. we ex- R.Crim.P. plained that pleaded there when Ortiz-Garcia 4.Sevilla committed the two violent guilty most of- judge June 2010—the district in his —in roughly apart fenses one month in 1996. already case should and did know the maxi- First, statute; May on Sevilla and others fired penalty mum simply under the he carrying shots at a car forgot three individuals. change-of-plea state it at to the hear- ' charged Sevilla was arrested and with at- ing. appears Id. at 285-86. It the same murder, Then, here, where, tempted among things. thing- other happened judge as the bond, admitted, July on while out on state candidly mistakenly later missed again fired at a shots vehicle. This time the stating penalty taking the maximum while belonged protection car to the state witness plea. Sevilla's program. police were Inside two officers and civilians, 3. Federal Rule of including Only Criminal Procedure 11 four an infant. one ("Rule 11”) requires judge person charged district to ad- was hurt. Sevilla was open dress a defendant in court before attempted ac- six more counts of murder and cepting guilty plea to weapons pleaded guilty order ensure the several offenses. He consequences defendant charges May understands the to both sets of 11(b)(1). plea. Among his subsequently years Fed.R.Crim.P. was sentenced to twelve things, part colloquy, other shooting eight as of this years the the first for the judge inform "any shooting, concurrently. must the defendant of to second run challenging murder trustworthi- killing Pitufo.5 After Sevilla admitted testimony. ad- allegations Burgos’s the second ness of reading the judge dendum, ordered conclusion, the hearing’s judge At the Burgos at Sevilla’s government produce First, considering findings. made several object hearing. Sevilla did not (especially past criminal Sevilla’s serious order, argue not did convictions), felony prior violent information, the Pitufo consider could not designation as a judge confirmed Sevilla’s ask for continuation of and did not belonged criminal- career offender who hearing. Then, considering history category VI.6 Burgos’s testimony alleged about Sevilla’s Sentencing Hearing The First C. murder, well as role in the Pitufo as Sevil- sentencing hearing took first involvement, denying any testimony la’s 25, 2012. took place Burgos that the career-offender found alleged testify about Sevilla’s stand to un- criminal-history-category-VI labels ques- Pitufo murder. He was role in the of Sevilla’s crimi- derrated the seriousness and cross-exam- by government tioned judge departed past.7 Accordingly, nal by Notably, counsel. defense ined defense which is accom- upward offense level argue Burgos’s not testi- counsel did range sentence panied a Guidelines impermissible and instead ob- mony was depraved Given the 360 months to life. jected only on the basis she needed devastating impact nature and of Sevilla’s The prepare. time to district more offenses, judge determined that objection the second denied the because highest appropri- available sentence pre-sentence report, to the filed addendum Consequently, ate. he sentenced Sevilla to days prior, provided sufficient no- twelve imprisonment. life tice, had sought and because counsel following day, issued an hearing. continuance before *6 behalf, sentence apportioning testified on his order Sevilla’s into subsequently own life any impris- involvement in the Pitufo 327 months on Count One and disclaiming 7.Throughout hearing, judge— district Burgos 5. mentioned involve- the the first Sevilla’s judge federal briefly during who had been chief of the court- the Pitufo murder his ment in expressed jury. house when Pitufo was testimony grand before a Sevilla sus- killed— outrage dismay at the havoc the murder pects played government part the some system. For had wreaked on the court exam- notifying probation officer testimo- of this ple, he said: Burgos ny, led the officer to which interview pre-sentence investiga- to amend Sevilla's operation stopped The of this murder report Pitufo tion with the murder informa- only stopped court. murder not The it unclear from how tion. But the record operation for almost a of this court whole probation officer in fact learned of Bur- day, happened it a disaster what here. gos's statements. building. The FBI had to take control of coming We where this was didn't know judge past 6. The stressed Sevilla’s convic- imagine, allowing you from. Can some- “Mickey tions were not for so-called Mouse” body perimeter to of this court to use crimes, but "a or "heartland” rather were supervisees? Imagine getting kill involved amazing string convictions which include of basically point you’re interfering to the "[sjhooting like at vehi- crimes of violence” governmental legitimate with the function "[tjrying to kill a wit- you imagine cles” and witnesses in administering justice. Can protection program They right while ... released in front ness that? killed him of the major attempt- Right the other in front of the court- on bail from case courthouse. thing. a horrible ed murder." house .... It was Two, First, tencing judge on to run consecutive- mistakes. onment Count said he on entered Sevilla had intended ly.8 Judgment against to sentence Sevilla One, January 26. on months Count followed life Two, imprisonment on Count but he had érroneously only entered 327 months on Subsequent Proceedings D. Second, Count One. the judge pointed out later, February A days few on that the sentence on Two Count judgment to set aside the Sevilla moved was defective under Federal Rule of Crim- correct, reduce, and to and reconsider his (“Rule 11”) inal Procedure 11 because he sentence, citing Federal Rule of Criminal had not informed during 35(a) (“Rule 35(a)”).9 Procedure colloquy that Count Two carried a maxi- judge said the district had erred at penalty mum of life imprisonment. To hearing by Pi- considering the errors, upped correct these the judge Sev- (1) tufo murder where that crime had not illa’s sentence 960 months on Count One (2) indictment, been included Two, and reduced it to 60 months on Count Sevilla, according to had defense counsel consecutively to run for a total of 1020 given adequate not been time to prepare (85 years). months judgment Amended allegations hearing. refute the before the on February entered filing, lawyer Soon after ill fell order, In the same the judge scheduled undergo emergency and had to surgery. hearing days a few later to consider result, As a the district could 35(a) Sevilla’s unresolved Rule motion hearing hold a on Sevilla’s motion before from Fébruary 1. That hearing was subse- 35(a)’s Rule fourteen-day strict deadline quently postponed to February at de- expired. request. fense counsel’s However, February day one before fourteen-day sounded, On day buzzer of the hearing, the dis- (1) sponte trict Sevilla filed a motion requesting sua issued order second purporting to correct Sevilla’s sentence un- recusal due bias 35(a) der Rule grounds. different personal knowledge; a Santobello sought order to rectify alleged two hearing govern- sen- to determine whether the hearing, 8. At the ing apportioned had that he should have the sen- said: counts, tence between the see United States v. *7 Zavala-Marti, (1st I am the defendant to life im- 51 n. 6 Cir. prisonment, and that will include 2013) of course procedure (explaining proper "the that the consecutive sentence that had be to separate is to render a on sentence each firearms, imposed the on because it would (internal quotation count” marks and citation impose be plus ridiculous to a life term five omitted)), January 26 he divided the total years. any That doesn't make sense. January among life 25 sentence Torruella, Judge opinion concurring his One Counts and Two. Sevilla not chal- has part dissenting part, says and "strongly lenged judge's authority the apportion to the suggests that Sevilla was sentenced to life January sentence and treats the Janu- i.e., 1," imprisonment on Count above the 80- ary 26 sentences as one sentence. maximum, year statutory five-year "and a term January on Count 2." But on the 35(a) permits 9. judge Rule a district to cor- judge explanation: offered an alternative On days rect a sentence within fourteen after had he intended "to look at the arithmetical, sentencing if it "resulted from and, together two making counts after the technical, or clear Fed. other error.” departures, corresponding sentence the [d]e- 35(a). R.Crim.P. More on this later. Then, imprisonment." fendant to- life realiz- remand, by by appeal an rected agreement;10 plea the had breached ment plea,” his to withdraw allowing [Sevilla] judg- the of vacation an judge issuing by the district and not at the errors Rule because ment 35(a).12 Rule order under not be cor- hearing could change-of-plea 35(a) The motion order. Rulé in a rected day, the district hearing that At the Rule supposed litany of highlighted also February 1 considered both Sevilla’s judge colloquy beyond plea in the 11 violations Afterwards, February 22 motions.13 failure to advise Sev- judge’s admitted the Rule another order under judge the issued penalty.11 maximum Two’s 35(a) illa of Count to set aside purporting time —this judge the had that them was the Feb among original guilty plea and Chief the both had parole remedy that his inform Sevilla sentence to ruary to 8 amended neglected sys- penal federal inform Sevilla colloquy at the from failure been abolished penalty maximum on Count Two that these addi- about the maintained tem. Sevilla The impossibility parole.14 “only cor- and the could be errors alleged tional motion, know, oppor- for an In the Sevilla asked Santobello those not in 10.For plea, he would tunity but said York, to withdraw 92 S.Ct. 404 U.S. New “specific only first made do so if (1971), proposition stands for the L.Ed.2d findings protective of fact and conclusions by plea abide their prosecutors must that law,” that, require among things, would other agreements. plea him the same government to offer give and would agreement after withdrawal had Sevilla claimed 11.Specifically, investigate Pitufo murder him time when he failed to: Rule 11 violated resentencing. But at the allegations before 1) plea had the inquire followed, [Sevilla] as to whether counsel in- hearing Sevilla's word; for agreement translated to him word not want "[did] that Sevilla formed the 2) had counsel] whether hearing,” [defense ask ... wanted to reopen and instead Sevilla]; agreement plea day. appeal, [for translated the did later that as he file 3) aware that he was [Sevilla] ask whether reminder, February 22 unlike 13. As living right to summon witnesses had the (which attempt judge's criticized the motion pur- jurisdiction Puerto Rico beyond the 35(a)), February 1 motion Rule to invoke 17; Rule suant to 35(a). It judge to act under Rule asked the 4) was aware that [Sevilla] ask whether considering by judge had erred claimed the attorney right to select to assist his had request- sentencing and the Pitufo murder peers perempto- jury and to execute of his original Janu- set aside the ed that the cause; challenges ry challenges and original Jan- ary judgment and correct 5) ... Sevilla was aware ask whether uary 26 sentence. parole abolished in the federal had been system; warn failure to judge knew that his 14. 6) fully not, ask whether understood [Sevilla] parole was unavailable Sevilla that provi- parameters itself, of the waiver of See Johnson of Rule 11. a violation sion; Cir.1981). States, v. United 7) ex- However, had [defense counsel] ask whether 11 ... ‘is very purpose of Rule "the application guidelines to plained of the the actual conse- a defendant of to advise case; realistically quences [Sevilla's] so that he can of his ” 8) had re- plead guilty.’ counsel] whether [defense ask whether decide *8 16, Rivera-Maldonado, discovery wheth- [Sevilla] and viewed v. States Santo, (1st Cir.2009) discovery the evi- (quoting received of United States er he had And, Cir.2000)). dence; 92, as the regarding pa- 9) explained, he his omission judge had been told that [Sevilla] ask whether under- Sevilla's under have undermined right appointed counsel role could had a to be plea, even consequences of his standing the could not of Justice Act if he the Criminal require the expressly though did not private Rule 11 pay ... attor- continue to afford to judge it. go to discuss ney, to trial. if he elected to however, noted, judge plea agree- that the and resentencing proceedings, so that stood, any subsequent appeal ment still and said he would sched- could be consolidat- change-of-plea hearing pending ule new after he ed with the appeal. separate ruling denying
issued a
written
6,
On March
judge
denied
requests.
Sevilla’s recusal and Santobello
Sevilla’s motion to vacate his order sched-
day,
Later that
Sevilla filed a notice of uling
supplemental
the
plea and resentenc-
appeal
judgment
Then,
from both the amended
ing hearings.15
8,
on March
over
February
February
8 and the
order
objection
Sevilla’s
that a full colloquy was
judgment.
intended to set aside that
required,
the district judge conducted a
supplemental
truncated
plea colloquy to
28,
February
appeal
On
while that
was
ensure Sevilla understood that
maxi-
the
pending,
the
judge
district
issued the
possible
Two,
mum
penalty for
spe-
Count
promised written order denying Sevilla’s
cifically,
imprisonment,
was life
and that
requests.
recusal and Santobello
The
he
ineligible
parole,
for
probation, or a
judge
supplemental plea
then scheduled
suspended sentence. Although defense
colloquy
resentencing hearing
requested
counsel
an entirely new collo-
March 8. He further announced he would
quy,
judge
the
did not conduct one because
not consider the Pitufo murder at the re-
thought
point
there was “no
in repeat-
sentencing hearing,
request-
as Sevilla had
ing”
already
Instead,
what had
been said.
ed in his
1 motion.
explain
To
judge
advised Sevilla of the informa-
decision,
judge
cited such factors as
missing
tion
from
initial colloquy
timing
seriousness
the accusa-
asked if Sevilla
wanted to abide
tion, the fact that Sevilla had never been
plea agreement.
yes.16
Sevilla said
charged
crime,
judge’s
with that
and the
fairness,
justice,
own concerns for
and due
later,
days
Four
on March
judge
process.
held
resentencing hearing.
Even
murder,
without considering the Pitufo
March
On
Sevilla moved to vacate the
given Sevilla’s
history,
extensive criminal
judge’s
scheduling
supplemental
order
judge again applied
the career-offend-
plea colloquy
resentencing hearing,
ar-
guideline
er
upward.
and varied
guing that
authority
had no
to'
judge sentenced Sevilla to 345 months on
colloquy
conduct the
or to further modify
35(a)
Two,
Count One and 60 months on Count
his sentence because Rule
was not an
consecutively
to run
appropriate
for a total of 405
correcting
vehicle for
Rule 11
(33
months).
years
errors.
months
and 9
Judg-
ment entered on March
2012.
Thereafter,
on March
issued
deferring
order
our consideration of
On March
filed an
Sevil-
amended
newly
la’s
until after the
scheduled
appeal, challenging
notice of
all three
order,
judge explained
pause
In the March 6
16. We
to remind the reader that at the
35(a)
that “Rule
and Rule 11 were not the
colloquy,
initial
had drawn Sevilla’s
setting
exclusive reasons for
aside the sen-
penalties
attention to the
mentioned in the
Rather,
(for
tence.”
claimed
plea agreement
correctly stated that
—which
time)
grant
first
to have acted
also under
penalty
the maximum
for Count Two was life
authority
common-law
to reconsider and re-
imprisonment
Sevilla told the
—and
upon
duce a sentence
reflection. See United
he understood.
Benz,
304, 306-07,
States v.
282 U.S.
51 S.Ct.
(1931).
party
judgments (January February cutting his sentence imprison- from life (2) 13); February 22 March order ment to 60 months Count Two. Conse- February purporting judg- quently, says, February to vacate the 8 judg- 8 (3) ment; (and February 28 order de- ment all of judge’s subsequent actions) nying requests. his recusal and Santobello was null and-void. appeal,
On the government concedes DISCUSSION 35(a) that Rule did not authorize the dis- judge’s trict February actions on 8. No panoply raises a issues matter, government says judge (1) —the appeal. He claims that the district power subsequent derived his to take ac- authority lacked to issue Febru 2255, § tion from 28 U.S.C. a habeas cor- ary judgment, 8 amended as well as au pus provision.18 But before we tackle the (2) actions; thority all subsequent to take government’s fallback position, habeas we supplemental plea pro both the initial and 35(a) explain why agree that Rule did (3) defective; ceedings were the final sen empower to act on February unreasonable; tence was 8. in rejecting erred his recusal and Santo requests. government bello counters law, including We review issues of appeal plea agree waiver judge’s interpretation of a Fed ment challenge. bypass bars this But we Procedure, eral Rule of Criminal de novo. claims, this issue because Sevilla’s if suc (1st 86, Leja, United States v. 448 F.3d cessful, could plea invalidate both the itself Cir.2006) (citing v. United States Encama and the waiver of right appeal.17 to ción, (1st Cir.2001)). 395, 239 F.3d forge
And so we ahead with the merits of 35(a) Rule empowers a district appeal.
judge to “correct a sentence that resulted
arithmetical, technical,
from
or other clear
Judge’s Authority
A. The District
days
error” within fourteen
after sentenc
35(a)
1. Rule
35(a).
ing. Fed.R.Crim.P.
The function of
35(a)
argues
Sevilla first
narrowly
Rule Rule
circumscribed: It
35(a)
empower
did not
“permit[s]
district
to
...
illegal
correction
of an
sen
tence,”
States,
issue the
judgment,
which
Hill v. United
368 U.S.
424,
original January
modified the
judgment
82 S.Ct.
11 legally constitutionally otherwise or prescribed ... in of that inval- out was excess statutes, terms were ... id. See id. multiple relevant offense, ... the [or] for the same Second, the 11 defect diagnosed by Rule legally sentence itself [were] terms of the in plea colloquy namely, the the — in constitutionally any respect.” invalid judge’s the failure to tell 35(a) hand, not, on the other Id. Rule does punishable by Two was impris- Count life fix errors committed at enable a and, onment —occurred before prior to the during proceedings trial or thus, not a sentencing error. It is such, Rule imposition of sentence. Id. As decidedly therefore outside the bounds of 35(a) provide does not a means to revisit 35(a) type glitch that Rule is de- in possible plea colloquy. errors See id.; signed Vinyard, to mend. See 539 589, Vinyard, States v. F.3d at 594. (7th Cir.2008) 35(a) (finding Rule 594 appropriate addressing an vehicle for
not Accordingly, parties, like the we con- 11(b)(1)(H) plea in possible Rule violation rely clude that the district could not colloquy). 35(a) authority on Rule to issue the February judgment aiming remedy 8 January 26 vacating When sentence spotted mistakes he 26 on imposing amended sentence judgment. February judge invoked 35(a) purported Rule to correct two errors: 2. Section 2255
(1)
judge’s self-professed
mistaken en-
months,
try of a sentence of 327
rather
then,
question,
is whether 28
(2)
months,
One;
than 960
on Count
§
gave
judge power
U.S.C.
to act
judge’s
during
failure to inform Sevilla
February
on or after
8.19
plea colloquy
that Count Two carried a
penalty
imprisonment.
maximum
of life
us,
government argues
Before
alleged
Because neither of these
infirmi-
February
for the first
time
Sevilla’s
illegal
ties resulted in an
Rule
recusal,
requesting
Santobel
motion —
35(a) by
provide
its
not
terms does
cure
hearing,
February
lo
and vacation of the
for either.
judgment
authority,
for lack of
as well as
First, the 327-month
that the
alleging
string
sentence
of Rule
errors
judge says
mistakenly
plea colloquy
judge’s
he entered
on
ac
—authorized
“illegal”
sights
February
Count One was not
tions on or after
8 because the
35(a).
of Rule
It was not in excess of motion functioned as a collateral attack on
statutory
limits.
conviction and sentence under
See
U.S.C. Sevilla’s
841(b)(1)(h),
§§
§
(setting
caption
the maximum
2255. Sevilla did not
the motion
months).
statute,
penalty
eighty years,
any
particular
or 960
under
rule or
but
It
it an
re
impose multiple
simply
did
terms for the
dubbed
“omnibus motion
Hill,
garding sentencing.”
same offense. See
368 U.S. at
And the district
argued
judge clearly
468. And no one has
it was
viewed it as another Rule
S.Ct.
quick recap,
judge's post-Febru-
requests
As
recusal
Santobello
schedul-
(1)
aiy-8
February
(3)
were:
actions
ing
change-of-plea hearing;
a new
issued an order
intended to set aside the
supplemental plea
March
he conducted a
origi-
8 amended sentence and the
(4)
colloquy; and
on March
he resen-
errors;
nal
due to Rule 11
on Febru-
tenced Sevilla.
ary
denying
he issued an order
*11
(1974) (inter-
35(a)
Nonetheless,
2298,
because “a 94
41
motion.20
S.Ct.
L.Ed.2d 109
depends upon
omitted).
character
its sub-
quotation
motion’s
nal
marks and citation
stance,
appellation,”
not its
United States
particular,
In
‘“rarely,-if
defendant will
288,
Ortiz,
Cir.2014),
741 F.3d
291 [1st
v.
ever, be able to obtain relief for Rule 11
”
says
can and should
government
we
2255,’
§
violations under
United States v.
February
§
22 motion
treat the
as
2255
Borrero-Acevedo,
11,
533 F.3d
17
Cir.
content,
challenge based on its
even 2008) (quoting
Dominguez
v.
United States
§
though
not wear a
2255 label.
it does
Benitez,
74,
9,
542
n.
124
U.S.
83
S.Ct.
2333,
(2004)),
diction to
such
“the
Moreover,
usually
a defendant
sentence was
excess of the maximum gets only
complete
“one
round of collateral
law,”
by
authorized
sentence “is
§
review” under
2255.
v.
Melton
United
subject to collateral attack.”
otherwise
Id.
(7th
States,
855,
Cir.2004);
857
States,
151,
see Munoz v. United
33UF.3d
Notwithstanding
this broad
(1st Cir.2003)
curiam).
(per
153
Second or
§
language,
alleging
a 2255 motion
a viola
§
severely
successive
2255 motions are
generally cognizable
of federal law is
tion
limited and require
certification
only if it involves “a fundamental defect
court of
appropriate
appeals. 28 U.S.C.
inherently results in a complete mis
[that]
2255(h);
States,
§
see Castro v. United
540
justice,
carriage of
an omission incon
[or]
375, 377, 382,
U.S.
124 S.Ct.
157
rudimentary
sistent with the
demands of
(2003); Munoz,
L.Ed.2d 778
331 F.3d at
Hill,
procedure.”
fair
20. The
order
for clear error
motion,
plea colloquy.”
from the defective
February
explicitly
to the
states:
"Sentence
vacated under Fed.R.Crim.P.
Supreme
prompted
21.
This risk
Court to
powers
limit the
recharacterization
courts'
Guilty
B. The Initial
Plea
backdrop, we choose not to
Against this
in a
February
motion
recast Sevilla’s
curiously,
us,
Most
before
Sevilla,
§ 2255 mold. No one below—not
forgotten
brought
seems
have
what
him
certainly not the
government,
not the
in the
place.
here
first
At the
the motion un-
judge—considered
district
22 hearing, when the district judge asked
us, only
govern-
§
Before
der
Sevilla what he wanted to do about alleged
says
should view the motion un-
ment
Rule 11 defects in the initial plea colloquy,
*12
motion,
§ 2255. This was Sevilla’s
not
der
Sevilla insisted he wanted to address those
government’s,
important
the
and the
con-
appeal
defects on
reopen
rather than
against
cerns outlined above counsel
our
However,
plea proceedings.
says
little
that
recharacterizing the motion under
in
impact
his brief about the
of
11
Rule
statute.
colloquy
errors in the initial
on the first
Accordingly, we find that the Feb
judgment, and instead focuses his attacks
22
ruary motion—which we view as decid
purported
supplemental
errors at the
35(a)—did
to
only pursuant
ed
Rule
not plea level.
authority
with
provide
for his
Arguments
only
raised in
a per
2255,
by way
§of
post-February-8 actions
functory and undeveloped manner are
January 26
and the
order remained
appeal.
deemed waived on
Rodríguez v.
final order of the court.22
therefore
We
Juan,
Municipality
San
659 F.3d
of
(1)
arguments
need not reach Sevilla’s
that
(1st Cir.2011);
175
United States v. Zanni
supplemental plea colloquy
was defec
(1st
no,
Cir.1990).
895 F.2d
17
Sevilla’s
(2)
tive;
imposed
the final sentence
argument
entire
about the effect of Rule
unreasonable; and
the district court
11
in
colloquy
errors
the first
on the first
in
granting
February
erred
22
judgment is as follows:
Rather,
requests.
recusal and Santobello
turn
Pursuant
to
appeal
opinion
we now
to Sevilla’s direct
of
this Court’s
in
Ortiz-Garcia,
judgment.
26
States v.
665
[United
F.3d
(who,
respect
pro
litigants
presum-
lenges
original judgment
with
to
se
to the
and subse-
ably,
consequences
quent
judgments).
general
are less aware of the
of
orders and
"As a
counsel)
rule,
recharacterization than those with
only
exceptions, entry
with
limited
aof
following way:
appeal
[judge]
notice of
divests the district
of
jurisdiction
adjudicate any
to
matters related
pro
[T]he court cannot ... recharacterize a
Martin,
appeal.”
to an
United States v.
litigant’s
litigant's
se
motion as the
first
(1st Cir.2008) (internal quotation
F.3d
§ 2255 motion
the court
unless
informs the
omitted) (quoting
marks and brackets
recharacterize,
litigant of its intent to
warns
Distasio,
(1st
v.
States
820 F.2d
Cir.
litigant
that the recharacterization will
1987)).
applies
equal
"This rule
force to
subject subsequent § 2255
motions to
Distasio,
Thus,
sentencing.”
C. First Sentence a sentence than his cur- rent sentence of 405 months and up to life Having found that imprisonment, particularly if the district authority lacked to do what he did after court were to consider either [Sevilla’s] judg- issuing original alleged involvement in the ‘Pitufo’ murder that the initial being ment —with the result or calculate a base sentencing level and re- originally remained intact —we appropriate upward departures.” make manded with instructions to reinstate the (Emphasis in original.) Counsel filed first a life sentence.25 As we second motion confirming that Sevilla stressed, an this was not unfair result be- wanted to proceed despite the risk. cause we had counsel had —on our believed instructions —certified that under- Sevilla Writing support of pe pursuing
stood this outcome was a risk of
review,
panel
tition for
and en banc
coun
appeal.
argument,
At oral
we had
says
sel now
he did not appreciate that
explicitly asked
if
Sevilla’s counsel
Sevilla faced the risk that
the initial
subject
pun
understood that
this
could
imprisonment
ishment of life
him to an
would be re
increased sentence. And after
court,
instated
counsel
unresponsive
submitted
motion
the case re
manded. And
that did not address whether Sevilla un-
because he misunderstood
risks,
our request,
only
derstood
counsel
we entered a written
warned Sevilla
again
order
instructing
inquire
might
higher
counsel to
remand
result in a
sen
whether
tence,
pursue
ap-
wished to
not that
the initial sentence might
*14
peal even though “re-sentencing in
by
this
be reinstated
us. Given
develop
this
matter presented
ment,
the risk to
modify
of
we
panel opinion,
[Sevilla]
simply
error affected the defendant’s substantial
dant
guilty plea
would not have entered
but
rights;
‘seriously
plea agreement
the error
affected
for Rule 11 error where
did
fairness, integrity
public reputation
penalty
not include
of
maximum
and court did
” Ortiz-Garcia,
judicial proceedings.’
penalty
change-of-
not mention maximum
at
(brackets omitted)
plea hearing).
(quoting
F.3d at 285
So
Riv-
Sevilla cannot meet the
era-Maldonado,
19).
prong,
judge’s
third
and the
satisfy
560 F.3d at
failure to warn
To
prong,
Sevilla of
penalty
third
Count Two's maximum
must demonstrate
“
that,
plain
was not
probability
there is
'a
error.
reasonable
but
error,
alleged
As for the other
Rule 11 violation—
for the
he would not have entered the
”
judge’s
failure to
plea.’
warn Sevilla he was
(quoting Dominguez
Id. at 286
Beni-
tez,
ineligible
parole
for
2333).
11 does not re-
judge during colloquy that he 3553(a)(1), understood §§ tics. See 18 U.S.C. 3661. Be- penalties agree- maximum listed in that argue any cause Sevilla failed prob- other Ortiz-Garcia, sentence, ment. at lem with the the sentence would Cf. (finding probability ordinarily a reasonable that defen- stand. er, imposed,26 analysis do not our- the court’s on the
vacate the sentence merits any unchanged. selves reinstate remand Sevilla’s remain While by resentencing judge.27 majority correcting for the same I commend the for its vacating
initial error and Sevilla’s sen- CONCLUSION tence, I strongly disagree with its reason- Moreover, reaching in this result. I vacate all finished, ing our With work disagree with the decision to remand the district court judgments and orders of the judge. case to the same Sevilla should be remand to the same for resen- resentenced judge, different one that tencing opinion. consistent with this any preformed opinions does have (cid:127) TORRUELLA, Judge Circuit about this case. Dissenting part). in in (Concurring part, Comedy Sentencing I. The Errors (“Sevilla”) Sevilla-Oyola was sen-
Carlos judicial begins by the district court to 405 months This tale woe Sevil- tenced brings plea colloquy August prison. appeal, On numerous la’s There, sentencing judge to our court’s attention. The ma- informed Sev- errors illa, correctly, that he jority, finding statutory several of these claims meri- faced a torious, initially eighty years maximum of for granted most unusual Count 1 of indictment, prison. Upon pan- of “relief’ —life in conspiracy possess form nar- distribute, rehearing, majority recognized el pursuant cotics with intent to 841(a). however, § irrational result and judge, now withdraws its U.S.C. opinion, leaving place opin- statutory its revised failed to inform Sevilla of the ion vacates maximum which Sevilla’s sentence and for Count of his indictment. aiding Although remands the same for resentenc- conviction for abet- result, ing. ting carry howev- in the use and of a firearm Outside of this revised community during sentencing, petition panel see United 26. for and en banc Politano, ("the petition,” easy reading), States v. 74—75 review Cir.2008) curiae, (explaining argues support amicus of an *15 judge can consider the characteristics of the prior opinion our clashed with Greenlaw v. community States, a in which defendant’s conduct 554 U.S. 128 S.Ct. impact arose and the conduct’s on the com- (2008). 171 L.Ed.2d Given 399 our result munity), judge here, the likewise did not abuse his we need not—and so do not—decide by refusing disqualify discretion to himself on whether Sevilla and his amicus are correct. that basis. Contrary says peti- to what Sevilla in his From all see no reason for us to tion, judge the never has "confessed error” or judge re- direct that a different handle the said that consideration of the Pitufo murder “Ordinarily, judges mand. district are free to hold, improper. judge’s And we the as keep reassign or to remanded cases accor- not, proper consideration of that murder does practice[.]” dance with Unit- local rules alone, standing warranting demonstrate bias Bryant, ed States v. Cir. judge’s disqualification. So Sevilla’s ar- 2011); (declaring see also D.P.R.Crim. R. 107 gument judge that the abused his discretion "[cjases resentencing shall remanded himself, by refusing disqualify to to the extent assigned judge imposed be to the who judge's it relies on the of this consideration vacated otherwise ordered unless information, Sny- fails. See United States v. appeals”). Ultimately we the court of believe der, (1st Cir.2000) (explaining original judge fairly can sentence Sevilla apply case, that we an abuse of discretion standard opts keep and we if he to so do not himself). judge when a to agree Judge trial refuses recuse Torruella that a remand to judge properly original judge Because the also took into would be "an exercise in futility.” impact account the Pitufo murder’s crime, 8, 2012, February judge fence. On drug-trafficking pursu- a relation to Therein, 924(c)(1)(A), a punishable by § issued written order. he stated ant to judge only although in- he had “intended to enter an prison, of life in term apportioning 2 carried a term Order the sentence to 80 Sevilla that Count formed (960 months),” mandatory.” plead- years on he had months Count of “60 mistakenly entered a sentence of to both counts. guilty ed order, In months.30 the same Sentencing proved confusing process, acknowledged that Count of the written and misstatements replete with mistakes sentence, subjecting Sevilla to life in pris- It sentencing judge. part on the of the on, from a “sufferfed] also defect”: when 25, 2012, January when the sen- began on plea colloquy conducted Sevilla’s tencing judge orally pronounced he failed to mention that this count could recited, as As the sentence was sentence. carry prison. a maximum term of life in and that will imprisonment, follows: “life Undertaking to correct both of these mis- include of course the consecutive sentence takes, entered a new sentence. firearms, that had to be on the time, to This Sevilla was sentenced impose because it would be ridiculous to months’ imprisonment Count and 60 plus years. life term five That-doesn’t months’ imprisonment on Count 2. The any sense.”28 make act judge purported to under Federal Rule 26, 2012, On 35(a). of Criminal Procedure oral down in writ- set this sentence February On Sevilla filed an- ing. apparent prior In contrast to the motion, specifically noting other the defec- day’s pronouncement, the written sentence 11 plea colloquy seeking tive Rule imposed a term of 827 months on Count 1 plea. A hearing withdraw his on this mo- imprisonment and life on Count 2. The day. tion was held the same At this hear- pronunciation that his oral judge explained ing, Sevilla stated that he could seek to misstatement, of the sentence had been a undergo the sentence rather than requiring by way apportion- correction at the additional corrections district-court ment.29 sentencing judge level. The admitted that On Sevilla filed a mo- review, appellate Sevilla could utilize but correction, reduction, seeking tion attempted doing to dissuade him from so: modification of his sentence. Before that considered, however, proceed ... could [COUNSEL]: [H]e motion was sen- today, and that tencing judge independently Appeal file a Notice of undertook right proceed. correct additional Sevilla’s sen- would be his errors *16 28.Although strongly suggests sentencing judge explained this statement 29. The that he imprison- that Sevilla was sentenced to life had intended "to look at the two counts to- five-year ment on Count 1 and a term and, on gether making corresponding after day sentencing judge Count the next departures, sentence the Defendant to life im- proffered explanation. a He had different modified, prisonment.” the sentence im- As simply forgotten apportion to the sentence impris- posed a term of life was not combined between the counts. See United States v. Za- onment, however, but a combined term of vala-Marti, 715 F.3d 51 & n. 6 Cir. . life-plus-327-months. 2013). imposed, If read as without the bene- sentencing judge's fit of the subsequent writ- Correcting “typographical” 30. this error in- clarification, ten the life sentence on Count 1 by fifty- creased Sevilla's sentence on Count 1 statutory would have exceeded the maximum years two and nine months. eighty years. could, 6, 2012, sentencing judge March you and are On He
THE COURT:
are
responded, stating
“Opinion
with that to where we
that the
going
get
to
now,
28, 2012,
February
for a—a remand to strike Order of
a remand
should have
35(a)
setting
again
the matter
in
and Rule 11
made clear
Rule
plea
setting
the exclusive reasons
of events.
were not
the normal course
sentence,
con-
as defendant
aside
light—
In
right.
All
[COUNSEL]:
judge claimed to have act-
tends.”
negotia-
plea
new
For
THE COURT:
well,
ed,
a grant
as
under
of common-law
trial,
whatever,
the case
as
tions or for
authority
in a Supreme
established
Court
may be.
v.,
case from 1931. See United States
sentencing judge extended
Eventually, the
Benz,
304, 306-07,
282 U.S.
51 S.Ct.
by thirty days.
right
(1931).
Pursuant
to this
opinion
Court’s
case
with United States v.
Ortiz-Garcia,
Cir.2009)
States v.
(finding
[United
63 n. 4
(1st Cir.2011),]
that,
287-89
the District
even where
claim was not stated
Sevilla-Oyola
“artfully”
Court’s failure to inform
it was not waived where the
change
plea hearing
at the
appellate
identified relevant
brief
facts and
majority
pealing party....
cross-appeal
I know of no other case—and the
[I]t takes a
appellate
cites to none—in which an
court
justify
remedy
appellee.”).
in favor of an
put
place
higher
undertook to
sentence
for,
While
sentence
vacated
Sevilla's
essen-
than that from which the defendant’s
notice,
tially, lack of
future defendants will
Indeed,
cross-appeal by
was taken.
absent a
hope
not be so fortunate.
I
the rationale of
government,
may
such action
be unconsti-
majority’s opinion
does not create a chill-
States,
tutional. See Greenlaw v. United
ing effect such that future defendants are
237, 244-45,
U.S.
128 S.Ct.
bringing
made fearful of
even meritorious
(2008) ("[A]n appellate
L.Ed.2d 399
court
appeal.
claims on
may
judgment
nonap-
not alter
to benefit a
*18
(1st Cir.2012)
law),
(waiving
argu-
an
and Holmes v. 166-67
case
relevant
cited
(1st Cir.2012)
presented only
oblique sug-
ment
as “an
F.3d
Spencer, 685
gestion,”
any
applica-
absent
reference to
ap-
where an
inappropriate
(holding waiver
standard);
governing
ble case law or a
enough
“reveals
of the raw
pellant’s brief
Cabanillas,
DiMarco-Zappa v.
238 F.3d
a claim so as to al-
underlying
materials”
(1st Cir.2001)
(“Simply noting an
reading”
“no trouble
low the court to have
argument
passing
explanation
in
without
is
argument).
his
waiver.”).
insufficient
avoid
specific
error.
has identified
escaping
If our standard for
waiver re-
11(b)(1) (“[T]he court
See Fed.R.Crim.P.
arguments
pled
with the
quired
be
of,
inform the defendant
and deter-
must
highest degree
craftsmanship,
or that
...
mine that the defendant understands
they
in
persuasive
be situated
the most
including
any
possible penalty,
maximum
order,
logical
might
myself
I
well find
fíne,
imprisonment,
supervised
and term of
agreement
majority.
good
with the
For
release^]”).
on-point
provided
He has
reason, however, that is not our rule. As
Ortiz-Garcia, 665 F.3d at
case law. See
stands,
only
argu-
it
that an
require
He has assessed the identified
287-89.
See,
raised,
squarely.
ment be
and raised
appropriate
under the
doctrinal test.
error
Dunbar,
4;
e.g.,
Sepulve-
entation-succinct
it
be-is in no
majority’s
The flawed nature of the
way grounds for waiver. United States v. holding
apparent
is made even more
when
Sepulveda-Contreras, 466 F.3d
170 n.
all,
considered in context. After
what rea-
(1st Cir.2006) (“This
is not a situation
expend any
sonable defendant would
more
piece
are forced to
together
where we
[the
portion
than a succinct
of his or her brief
him,
argument
and we
defendant’s]
arguing against a
which
al-
sentence
had
(internal
therefore find no waiver.”
citation
ready
by
been vacated
omitted)).
judge,
government
and for which the
advocating?
Aya-
See United States v.
fact,
majority
In
admits that Sevilla
(1st Cir.2014)
lar-Vázquez, possible argu-
identified “an error and a
(holding
“perfunctory
that a
statement”
Nonetheless, omitting
ment.”
mention of
it
was sufficient to avoid waiver where
argument
the fact that this
was also un-
put
clearly
served to
the court on notice of
dergirded by specific reference to case
applicable argument). That Sevilla had
law,
goes
baldly
it
on to
assert that Sevil-
foresight
argument
even to include this
pleaded
la’s claim was
“in the most skele-
brief,
just
perhaps
to ward off
such
way, leaving
tal
the court to do counsel’s
overly
reading
formalistic and strained
Zannino,
work.” See
cured Your Honor’s Rule mo- tion. B. Plain-Error Review THE A 11— COURT: Rule that, majority say continues toon [COUNSEL]: That would be a forfei- if Rule 11 claim were not even Sevilla’s ture—
waived,
plain-error
it would still fall under
context,
Read in
Sevilla’s statement was
review,
object
because “Sevilla did not
on specifically
preserve
appeal
intended to
11 grounds during
colloquy
Rule
the initial
the claim
sentencing judge
that the
was
plea
or move to withdraw his
acting beyond
power
his
claim the ma-
—a
court.”
jority has since deemed meritorious. At
time, however,
the same
purported
object
It is true that Sevilla did not
by
arguments,
“stand
all” of his
includ-
However,
plea colloquy.35
his
Sevilla’s
ing the request to withdraw his plea.
21, 2012,
explicitly put
motion
Certainly,
portion
this
of the record in-
grounds
forth this error as
for withdraw-
apparently
vites confusion. The
contradic-
fact,
ing his
In
plea.
elsewhere
its
statements,
tory
however, do not require
motion,
opinion,
discussing
when
Sevilla’s
that our court completely ignore the fact
majority acknowledges
this
fact.
clearly
expressly
moved
Recognizing that a motion to withdraw was
plea.
withdraw his
States
Cf.
filed,
majority
instead rests its forfei-
Isom,
Cir.1996)
833-39
finding
ture
subsequent
on the
motion
(considering on the merits a defendant’s
hearing, in which Sevilla stated that he did
claim that he should have been able to
reopen
not “want to
A
hearing.”
thor-
plea,
withdraw
notwithstanding
the fact
ough review of that hearing’s transcript,
that the defendant vacillated between re-
shows that
preferred
Sevilla’s
however/
questing
right
stating
to withdraw and
significantly
course was
less clear than the
by
plea).
an intent to stand
More-
majority purports:
over,
motion,
presented
when
with Sevilla’s
...
does not want to
[COUNSEL]:
[H]e
sentencing judge
repeatedly
pro-
—who
reopen the hearing
and stands
all his
jurisdiction
claimed that he retained
over
arguments
pleading
today.
in the
agreed
filed
the issue36—considered and
January
35. At Sevilla's
text of Federal Rule of Criminal Procedure
hearing,
impose
11(d),
did not
a life sen-
which allows district courts to with-
Rather,
tence on Count 2.
this term was first
pleas
"any
just
only
draw
fair and
reason”
writing
imposed.
before the sentence
Fed.
Therefore,
opportu-
Sevilla had no reasonable
11(d)(2)(B);
11(e) (“Af-
R.Crim.P.
see
id.
also
nity to discover and raise the Rule 11 error
imposes
plea
ter
court
...
during
sentencing hearing
prior
the initial
or
may
only
be set aside
on direct
imposition.
to the sentence’s
Thus,
attack.”).
might
collateral
chalk
up
growing
as one more error on the
list
queried
36. When Sevilla
whether the court’s
sentencing judge’s missteps.
sig-
of the
It is
ability
plea
impacted by
to withdraw the
clear, however,
nificantly less
that-once con-
already having
imposed,
a sentence
been
consequently
sidered-Sevilla’s motion would
sentencing judge responded, ”[I]t doesn’t
subject only
plain-error
be
review. The
proclamation ignores
plain
matter.” That
policy
court matter of
to hold that
defen-
argument.
[the
That the district
Sevilla’s
argument,”
id. at 1189.
dant] forfeited
effectuate the withdrawal
attempted to
case, in
This
which the sentence was vacat-
beyond
pow-
in manner
its
*20
and no
ar-
party
ed
the district court
certainly an error —the court’s
er is most
appeal,
clearly
on
is
gues
imposition
for its
that,
my
it
not an error
own—but
is
all,
one such situation. After
this is a far
view,
clearly
that
negates the fact
cry
our court has been
from case where
claim,
squarely
it
con-
raised this
and was
...
“deprived
factfinding,”
of useful
Har-
fact,
sidered.
In
I can think of no better
wood,
627,
69 F.3d at
or of “the district
claim
evidence that the Rule 11
was raised
judge’s insights
point,”
into the
Sandstrom
present
than that which is
here:
the sen-
(1st
83,
Corp.,
v. ChemLawn
904 F.2d
87
tencing judge
sought.
awarded the relief
Cir.1990). 'Rather, the record on the issue
plea.
withdrew the
He
fully developed,
sentencing
is
and the
on, I
that
piling
At the risk of
note
even
judge’s view on the nature and effect of
if this court blinded itself to the clear
Similarly,
the error is more than clear.
claim
record evidence that Sevilla’s
was
government
clearly put
was
on notice
considered, plain-error
and
review
raised
every opportunity
claim
of this
and had
wholly inappropriate. Forfeiture
would be
(“The
Harwood,
respond.
plays
important
separating
(holding
brought only
role in
“merito-
that a claim
direct
review);
thoughts
appeal
subject
plain
rious second
... and mere sour
error
see
Borrero-Acevedo,
grapes
pronounced.”
over a sentence once
also United States v.
Vonn,
11,
Vonn,
(1st Cir.2008) (citing
United States v.
535 U.S.
F.3d
58-59,
1043)
(discussing
(reasoning
S.Ct.
omitted));
v.
United States
Cortés-Clau-
(1st Cir.2002)
dio,
(“[A]
17,
F.3d
24
312
question
There is little
that
11
this Rule
post-sentence objection
necessarily
is not
harmless,
error was not
such that the sen-
required
preserve
to
the issue for
if
stand,
tence cannot
see Fed.R.Crim.P.
reasonably
the defendant could not
have 11(h) (“A
requirements
variance from the
anticipated the issue would arise until after
of this rule is harmless
if
error
it does not
ruled.”);
the court
see also United States
affect
rights.”),
expect-
substantial
and—as
16,
Delgado-Hemández,
v.
420 F.3d
19-20
government
ed
a case where the
agrees
(1st Cir.2005) (applying plain-error review that
imposed—
the sentence should not be
“ample opportu-
where the defendant had
government
attempt
makes no
to
object
nity”
prior
to the sentence’s im- prove otherwise. See United States v.
Olano,
position (quoting
Negrm-
725, 734,
1770,
v.
United States
507 U.S.
113 S.Ct.
(1st Cir.2005))).
Narváez,
33,
(1993)
403 F.3d
37
123
(stating
L.Ed.2d 508
simply
proving
There is
no sense of fairness or burden of
that an
harm-
error was
equity
allowing
one error
the sen-
government).
less is on the
Moreover it is
tencing judge
sentencing judge
to shield another error from the
posi-
who is best
what,
our
any, impact
review.37 Even had Sevilla’s
tioned to assess
if
claim
treated,
clearly
been
raised and
the facts Rule 11 error had on Sevilla’s understand-
See,
here provide precisely
ing
plea.
e.g.,
the sort of “context”
of his
United States v.
(1st
1,
Cir.1995)
against
overly rigid ap-
that counsels
CotaUCrespo, 47 F.3d
5
(1st Cir.2004).
any question
gone nearly
37. Were there
that remand is
We have never
so
far, however,
necessary
sentencing procedures
say
significant
due to the
as to
that a
redis-
court,
imprisonment
before
district
I also note that
tribution between counts of
Here, viewing
where the oral and
sentences materi-
written
was not a conflict.
the sen-
conflict,
ally
generally
tencing judge's proffered explanation
the oral
controls. See
about
Meléndez-Santana,
apportionment
incredulity
United
v.
States
353 F.3d
with the
I believe it
93,
due,
(1st Cir.2003) (citations omitted),
statement,
given
clarity
100
is
of his oral
overruled,
part,
grounds by
judge changed
on other
the sentence on Count 1
Padilla,
(1st Cir.2005).
v.
States
also States v. 239 F.3d (1st Cir.2001) Minor; Conjugal (remanding for re- K.F.P.L. 103-04 Partner ship sentencing judge); Portales-Lebrón, Plaintiffs, before a different Unit- Ap Carrero, pellants, v. ed States Vélez (1st Cir.1996) (same); United States v.
Mercedes-Amparo, F.2d Cir.1992) (noting practice” the “normal of COMMONWEALTH OF PUERTO “remand[ing] resentencing before a dif- RICO, represented by Governor Ale Canada, judge”); ferent United States v. jandro Padilla; Department Garcia (1st Cir.1992) (same). Rico, represented Education of Puerto Secretary, its Eduardo Moreno Al Parting IV. Words onso, Defendants, Appellees, fraught mistakes, misstatements, and omissions on Colegio Inteligencia De Taller Emocion part sentencing judge. of the al, Inc.; Marlyn Mendez; Edwin R. case, unique posture arising of this from a Cano; Conjugal Partnership Cano- sentencing process replete with errors of Mendez; Co.; A Insurance B Insur making, the district court’s own and con- Co., ance Defendants. cerning party an error that no seeks to defend, No. is well fit for a 13-2078. simple resolution: remand for a correction of the Rule United States Court Appeals, imposition error and of a new sentence. First Circuit. forget Let us not the district court judge himself determined the initial sen- *23 Oct. improper, tence to be erroneous and party sought no had defend it on
until the court briefing invited such follow- ing rehearing. Sevilla’s motion for acknowledging
Instead of the errors of court, majority continues to support original the rationale behind its
opinions’s sponte imposition sua of the first only ultimately and it agrees to vacate Sevilla’s sentence after being rehearing faced motions for post-briefing, post-argument “misunder-
standing” by a single question counsel over Nevertheless, posed by the court. agree I majority’s with the decision to vacate the sentence and remand for resentencing, notwithstanding my emphatic urging that place this take judge. before different