                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                       No: 15-2326
                                     ______________

                            UNITED STATES OF AMERICA


                                             v.

                                   JOSEPH RAGNOLI,
                                             Appellant
                                    _______________

                      Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                               (Crim. No. 2-05-cr-00375-3)
                     District Judge: The Honorable Juan R. Sánchez
                                     ______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    April 5, 2016

     Before: AMBRO and KRAUSE, Circuit Judges, and THOMPSON,* District Judge

                             (Opinion Filed: April 15, 2016)


                                     ______________

                                       OPINION **
                                     ______________

THOMPSON, District Judge.
*
 The Honorable Anne E. Thompson, District Judge for the United States District Court
for the District of New Jersey, sitting by designation.
**
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Joseph Ragnoli (“Ragnoli”) appeals the May 7, 2015 letter communication of the

United States District Court for the Eastern District of Pennsylvania stating that Ragnoli’s

60-month term of confinement is to run consecutive to his state court term of

imprisonment. For the reasons that follow, we conclude that we lack jurisdiction to

consider Ragnoli’s appeal.

I. BACKGROUND

       On April 29, 2005, law enforcement agents searched Ragnoli’s home pursuant to a

search warrant and found over two kilograms of methamphetamine. On August 12, 2005,

Ragnoli pled guilty to one count of possession of methamphetamine with intent to

distribute, and one count of conspiracy to distribute methamphetamine. The District

Court sentenced him to 84 months’ imprisonment and 10 years of supervised release.

After serving his term of imprisonment, Ragnoli was released and began serving his term

of supervised release on January 26, 2011.

       Three months later, the Pennsylvania State Police learned Ragnoli was engaging in

multiple methamphetamine transactions via wiretaps that were part of a larger

methamphetamine trafficking investigation. Ragnoli was arrested on November 27,

2012. On January 30, 2013, Ragnoli and 27 other individuals were charged with multiple

offenses related to the distribution of methamphetamine.

       On April 25, 2013, while Ragnoli was in state custody on his pending state

charges, he was brought before the District Court pursuant to a writ of habeas corpus ad

prosequendum for violating his supervised release. Ragnoli stipulated that he had

violated his supervised release and was sentenced to the maximum statutory penalty of 60

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months’ imprisonment. The Court did not specify if the 60-month term was to run

consecutively or concurrently with the sentence that would be imposed in Ragnoli’s

pending state case, nor did Ragnoli’s counsel raise the issue. Ragnoli did not appeal the

District Court’s judgment. He was immediately returned to state custody, and the federal

judgment was filed as a detainer.

        On May 30, 2013, Ragnoli pled guilty to two of his pending state charges. He was

sentenced to 24 to 48 months’ incarceration, which the State Court ordered “to be served

concurrent and coterminous to the Federal Sentence he is currently serving.” App. 73.

Ragnoli served his state sentence, and was released to federal custody on December 3,

2014.

        In a letter dated March 26, 2015, Jose A. Santana, the Bureau of Prisons (“BOP”)

Regional Inmate Systems Administrator, sent a letter to the District Court regarding

Ragnoli. App. 79. The letter explained that Ragnoli had requested that the BOP run his

federal sentence concurrently with his state sentence. The BOP could accomplish this by

retroactively designating the state prison as the institution for service of Ragnoli’s federal

sentence. This retroactive designation would reduce the total amount of time Ragnoli

spent in custody, as the State Court had ordered. The letter indicated that it is the BOP’s

“preference” to obtain the federal sentencing court’s position on any such retroactive

designations, but that the BOP would make its own decision if it had not heard back from

the District Court within 60 days. If the District Court stated its position within 60 days,

the BOP would designate Ragnoli’s place of imprisonment according to the District

Court’s position.

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       On May 7, 2015, the District Court held a conference call with counsel for the

government, Ragnoli’s counsel, and a probation officer. Ragnoli was not present on the

call, and no one objected to his absence. Later that day, the District Court issued a letter

that read:

       Joseph Ragnoli’s sentence by this Court on April 25, 2013, to a 60-month
       term of confinement for violation of his supervised release is to run
       consecutive with his state term of imprisonment. See U.S.S.G. § 7B1.3,
       comment. Nn. 3, 4.

App. 58. Once Ragnoli learned of the District Court’s letter, he filed an appeal, which is

presently before us.

II. JURISDICTION AND STANDARD OF REVIEW

       The District Court had subject matter jurisdiction over Ragnoli’s sentencing

pursuant to 18 § U.S.C. 3231. We exercise plenary review over the question of whether

we have jurisdiction to consider Ragnoli’s appeal. In re Blatstein, 192 F.3d 88, 94 (3d

Cir. 1999).

III. DISCUSSION

       Ragnoli contends that the District Court’s May 7, 2015 letter impermissibly

modified his sentence outside of his presence. See Fed. R. Crim. P. 35 (permitting

sentencing courts to modify sentences under specific circumstances not present in this

case); Fed. R. Crim. P. 43(a)(3) (requiring defendant’s presence at sentencing). The

government argues that the May 7, 2015 letter was not a court order, but merely an

advisory letter to the BOP, and therefore cannot form the basis for an appeal before this

Court. The government does not argue that Ragnoli’s appeal of the letter was untimely;


                                              4
therefore this issue is waived. United States v. Muhammud, 701 F.3d 109, 111 (3d Cir.

2012) (stating that the time limits under Fed. R. App. P. 4(b) are waived if the

government does not invoke them).

       Ragnoli’s arguments depend upon a finding that the May 7, 2015 letter was an

appealable court order. However, when the District Court wrote the letter, it lacked the

authority to issue an order modifying Ragnoli’s sentence. Dillon v. United States, 560

U.S. 817, 819 (2010) (observing that federal courts generally are not able to modify

sentences at a later date); 18 U.S.C. § 3582(c) (listing the exceptional circumstances

when a court may modify a sentence at a later date, none of which are applicable here).

In May 2015, approximately two years after the District Court had sentenced Ragnoli,

only the BOP had the authority to credit Ragnoli for his time in state custody by

retroactively designating his state institution for service of his federal sentence.1 See

Barden v. Keohane, 921 F.2d 476, 478 (3d Cir. 1990); 18 U.S.C § 3621(b) (granting the

BOP authority to “designate the place of the prisoner’s imprisonment.”).

       Since the District Court had no authority to modify its earlier sentencing order,

and the BOP had independent authority to decide whether to credit Ragnoli for his time

in state custody, the District Court’s letter was only a non-binding recommendation to the

BOP, not an appealable order. This reasoning is in accord with our own case law, and the

law of multiple other circuits. United States v. Serafini, 233 F.3d 758, 778 (3d Cir. 2000)

(holding that the portion of a district court’s order that included a specific place of

1
 The District Court could have ordered Ragnoli’s sentence to run consecutively or
concurrently with his anticipated state sentence at Ragnoli’s 2013 sentencing hearing.
Setser v. United States, 132 S. Ct. 1463, 1468 (2012).
                                               5
imprisonment was only a non-binding recommendation to the BOP, and therefore not

appealable); United States v. Ceballos, 671 F.3d 852, 856 (9th Cir. 2011) (holding that

district courts’ non-binding recommendations to the BOP are not appealable); 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 final decision of the district

court”); United States v. Melendez, 279 F.3d 16, 18 (1st Cir. 2002) (holding that non-

binding recommendations to the BOP are not reviewable orders); United States v.

Pineyro, 112 F.3d 43, 45 (2d Cir. 1997) (holding that a district court’s recommendation

that the BOP not credit the defendant for his time in state custody was not appealable

because the district court’s recommendation was not binding on the BOP).

       Since the District Court’s letter was not an appealable order, we lack jurisdiction

over Ragnoli’s appeal. 28 U.S.C. § 1291 (limiting our jurisdiction to appeals of “final

decisions” from lower courts, except when direct review may be had before the Supreme

Court). However, there is an avenue for Ragnoli to appeal the BOP’s decision. The BOP

Administrative Remedy Program, 28 C.F.R. § 542.10 et seq., sets forth a formal review

process that Ragnoli can pursue in challenging the BOP’s decision. Ragnoli has not yet

utilized this process. Ragnoli must exhaust his administrative remedies before seeking

judicial review, which he may seek thereafter by filing a petition for a writ of habeas

corpus under 28 U.S.C. § 2241, if his administrative appeal is unsuccessful. Setser, 132

S. Ct. at 1473; Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996). We

express no view as to whether those proceedings would be successful.

IV. CONCLUSION

                                             6
       When “we determine that we do not have jurisdiction over this appeal, our ‘only

function remaining [will be] that of announcing the fact and dismissing the cause.’”

Elliott v. Archdiocese of New York, 682 F.3d 213, 219 (3d Cir. 2012) (alteration in

original) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)).

Therefore, this case will be dismissed for lack of jurisdiction.




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