                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-28-2008

USA v. Maldonado
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2411




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Recommended Citation
"USA v. Maldonado" (2008). 2008 Decisions. Paper 320.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/320


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                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                     Case No: 07-2411

                            UNITED STATES OF AMERICA

                                               v.

                                  JASON MALDONADO
                                     a/k/a GRUMPY

                                       Jason Maldonado,

                                              Appellant


                     On appeal from the United States District Court
                          for the Middle District of Pennsylvania
                             District Court No.: 06-cr-00052-4
                    District Judge: The Honorable Thomas I. Vanaskie


                  Submitted Pursuant to the Third Circuit L.A.R. 34.1(a)
                                   October 20, 2008

                      Before: SMITH and COWEN, Circuit Judges,
                              THOMPSON, District Judge *

                                 (Filed: October 28, 2008)


                                         OPINION




       *
        The Honorable Anne E. Thompson, Senior District Judge for the United States District
Court of New Jersey, sitting by designation.

                                              1
SMITH, Circuit Judge.

       In February of 2006, a grand jury returned a multicount indictment against

multiple individuals, including Jason Maldonado. Count one of the indictment charged

that the defendants had conspired in violation of 21 U.S.C. § 846 to distribute and to

possess with the intent to distribute multiple controlled substances. Count two alleged

that the defendants had aided and abetted each other in distributing and possessing with

the intent to distribute in excess of five grams of cocaine base, cocaine, and heroin in

violation of 21 U.S.C. §§ 841(a)(1) and 2. In September of 2006, Maldonado pleaded

guilty to count two of the indictment.

       On May 3, 2007, during the sentencing hearing, the United States District Court

for the Middle District of Pennsylvania calculated Maldonado’s offense level at 27 and

his criminal history category as II, thereby yielding an advisory guideline range of 78 to

87 months. Maldonado urged the District Court to sentence him below both the advisory

guideline range and the statutory minimum of sixty months because of the fact that he had

already served twenty one months of a state sentence of two to four years of

imprisonment for related controlled substance offenses, and had additional time to serve

on that sentence. He asserted that the District Court had the authority to depart under

U.S.S.G. § 5G1.3(c).

       The District Judge was receptive to the idea, departing from the 78 month lower

parameter of the advisory guideline range to the 60 month mandatory minimum sentence.



                                              2
The District Judge declared that if he had the discretion, he would depart further and

impose “a sentence of 42 months. . . as opposed to 60 months, which I believe would

serve the goals of sentencing . . . .” Because the District Judge did not believe he had the

authority to sentence below the mandatory minimum, he sentenced Maldonado to 60

months of imprisonment, concurrent with his undischarged state sentence. The Court

expressed its belief that Maldonado “should but cannot receive credit for the time served

on that State sentence” in light of the statutory minimum.

       This timely appeal followed.1 Maldonado asserts that the District Judge erred at

sentencing by concluding that he did not have the authority to impose a sentence that was

below the statutory mandatory minimum in order to give Maldonado credit for the time

served on his related undischarged state sentence. We exercise plenary review over the

District Court’s interpretation of a criminal statute and a sentencing guideline. United

States v. Soto, 539 F.3d 191, 194 (3d Cir. 2008); United States v. Hawes, 523 F.3d 245,

249 (3d Cir. 2008).

       We are sympathetic to Maldonado’s predicament, but we find no error in the

District Court’s application of the Federal Crimes Code and the Sentencing Guidelines.

Guideline § 5G1.3 provides instructions for imposing a sentence on a defendant who is

subject to an undischarged term of imprisonment. Paragraph (c) provides:

       (c) (Policy Statement) In any other case involving an undischarged term of

       1
         The District Court exercised jurisdiction under 18 U.S.C. § 3231. Appellate jurisdiction
exists under 18 U.S.C. § 3742(a).

                                                3
       imprisonment, the sentence for the instant offense may be imposed to run
       concurrently, partially concurrently, or consecutively to the prior
       undischarged term of imprisonment to achieve a reasonable punishment for
       the instant offense.

U.S.S.G. § 5G1.3(c) (2006). Application note 3(E) explains that:

       Unlike subsection (b), subsection (c) does not authorize an adjustment of
       the sentence for the instant offense for a period of imprisonment already
       served on the undischarged term of imprisonment. However, in an
       extraordinary case involving an undischarged term of imprisonment under
       subsection (c), it may be appropriate for the court to downwardly depart.
       This may occur, for example, in a case in which the defendant has served a
       very substantial period of imprisonment on an undischarged term of
       imprisonment that resulted from conduct only partially within the relevant
       conduct for the instant offense. In such a case, a downward departure may
       be warranted to ensure that the combined punishment is not increased
       unduly by the fortuity and timing of separate prosecutions and sentencings.
       Nevertheless, it is intended that a departure pursuant to this application note
       result in a sentence that ensures a reasonable incremental punishment for
       the instant offense of conviction.

U.S.S.G. § 5G1.3, Application Note 3(E) (2006).

       Neither § 5G1.3(c) nor application note 3(E) provides that a district court may

impose a sentence below a statutory mandatory minimum in order to achieve a reasonable

incremental punishment for the instant offense when there is an undischarged sentence.

In fact, application note 3(E) specifically instructs that § 5G1.3 does not authorize a court

to adjust the “sentence for the instant offense for a period of imprisonment already served

on the undischarged term of imprisonment.” Id. The only authority that we are aware of

that would permit the imposition of a sentence below the mandatory statutory minimum is

in 18 U.S.C. § 3553(e). That provision, however, requires a motion by the government



                                              4
citing the defendant’s substantial assistance in the investigation or prosecution of another

person who has committed a criminal offense. See Melendez v. United States, 518 U.S.

120, 125-26 (3d Cir. 2008). Our review of the records fails to reveal that any such motion

was made in this case.

       In his reply brief, Maldonado seeks a remand to determine whether sentencing

should have been governed by § 5G1.3(b) or (c). Inasmuch as this argument was not

raised in his opening brief, it is waived. Laborers’ Int’l Union v. Foster Wheeler Corp.,

26 F.3d 375, 398 (3d Cir. 1994).

       For the reasons set forth above, we will affirm.2




       2
         Judge Cowen votes to affirm the judgment of the District Court without prejudice
to the right of Maldonado to file a petition under 28 U.S.C. § 2255.


                                             5
