            United States Court of Appeals
                       For the First Circuit


No. 15-1859

                      UNITED STATES OF AMERICA,

                             Appellant,

                                 v.

                        JORGE MERCADO-FLORES,

                        Defendant, Appellee.


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF PUERTO RICO

        [Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]


                               Before

                        Howard, Chief Judge,
                  Selya and Lipez, Circuit Judges.


     John    P. Taddei, Attorney, Appellate Section, Criminal
Division,   United States Department of Justice, with whom Leslie R.
Caldwell,    Assistant Attorney General, Sung-Hee Suh, Deputy
Assistant   Attorney General, Rosa E. Rodríguez-Vélez, United States
Attorney,    and Nelson J. Pérez-Sosa, Assistant United States
Attorney,   were on brief, for appellant.
     Lisa   Aidlin for appellee.


                         September 22, 2017
           SELYA,      Circuit     Judge.     A     district   court     has    broad

authority over the sentencing phase of a criminal case.                     But once

a sentence is imposed and a final judgment of conviction enters,

that   authority       terminates     save     only     for    a   few      narrowly

circumscribed        exceptions.      Here,    the     district    court,      after

imposing a sentence and entering final judgment, attempted to undo

its handiwork.         The government appeals.            Concluding that the

district court lacked jurisdiction to revisit the sentence, we

vacate the order appealed from and direct that the sentence be

reinstated.

I.   BACKGROUND

           The facts giving rise to the arrest and conviction of

defendant-appellee Jorge Mercado-Flores are uncontroversial.                      In

2013, the defendant (then twenty-eight years of age) drove a

fourteen-year-old girl to a beach in Puerto Rico for the purpose

of engaging in sexual intercourse.            After the defendant was caught

red-handed,     federal       authorities    charged    him    under     18    U.S.C.

§ 2423(a), which criminalizes the transportation of a minor within

a United States "commonwealth, territory or possession" with the

intent to engage in criminal sexual activity. This statute carries

a ten-year mandatory minimum sentence.               See 18 U.S.C. § 2423(a).

           The    defendant      resisted     the    indictment.       Facing     the

prospect   of    a    steep    mandatory     minimum    sentence,      he     pursued

negotiations with the government. As a result, the parties entered


                                      - 2 -
into a plea agreement, which contemplated that the government would

dismiss the original indictment in exchange for the defendant's

guilty plea to a one-count information charging him with violating

18 U.S.C. § 2421(a).       This statute, which carries no mandatory

minimum sentence, criminalizes the transportation of an individual

"in   interstate   or   foreign   commerce,     or   in   any   Territory   or

Possession of the United States," intending for that individual to

"engage in . . . any sexual activity for which any person can be

charged with a criminal offense."         Id.    In Puerto Rico, it is a

criminal offense to engage in sexual intercourse with a person

under the age of 16.     See P.R. Laws Ann. tit. 33, § 4770(a).

           In due course, the government filed the information, and

the district court accepted the defendant's guilty plea.              On May

11, 2015, the court sentenced the defendant to a 57-month term of

immurement and dismissed the original indictment.                  The court

promptly entered a judgment of conviction.1

           After the imposition of the sentence, the district court

voiced a concern that 18 U.S.C. § 2421 might not apply in Puerto

Rico because Puerto Rico is not a "Territory or Possession of the


      1From this point forward, we use the shorthand "sentence" to
describe both the sentence and the concomitant judgment of
conviction. In addition, we note that the judgment in this case
was amended to correct a clerical error on May 22, 2015, but that
tweak has no impact on when the time limit under Rule 35(a) started
to run.   See Fed. R. Crim. P. 35(c) (defining "sentencing" for
purposes of Rule 35 as the oral announcement of the sentence); see
also United States v. Fahm, 13 F.3d 447, 453 (1st Cir. 1994).


                                  - 3 -
United States."    The court added that it would reserve judgment on

this "jurisdictional matter."      If Puerto Rico is not a "Territory

or Possession of the United States" within the purview of 18 U.S.C.

§ 2421(a), the court reasoned, the indictment would be nugatory

and the court would have no jurisdiction over the case.          The court

went on to say that it would issue an opinion "as to whether the

statute applies or not" within 30 days.           It is luminously clear

that the court was acting sua sponte: neither the government nor

the defendant challenged the sentence or moved to vitiate the

guilty plea.

             On June 4, 2015 — twenty-four days after imposition of

the sentence — the district court filed a rescript concluding that

Puerto Rico is not a "Territory or Possession of the United States"

but, rather, enjoys sui generis status as a commonwealth. As such,

the court opined, section 2421(a) "does not apply to a purely

intrastate    criminal   act   committed    within   the   Commonwealth   of

Puerto Rico."    Continuing to act sua sponte, the court vacated the

sentence and dismissed the case.           When the government moved for

reconsideration, the district court held firm and issued two

supplementary opinions reiterating its interpretation of 18 U.S.C.

§ 2421(a).2


     2 Earlier case law, unimpeached at the time of the original
indictment, indicated that section 2421(a) applied to crimes
committed wholly within Puerto Rico. See Crespo v. United States,
151 F.2d 44, 45 (1st Cir. 1945). The district court's contrary


                                  - 4 -
              The government responded in two ways.            First, it re-

indicted the defendant under 18 U.S.C. § 2423(a), a statute that,

by its terms, is not susceptible to the jurisdictional lacuna that

troubled the district court.            Section 2423(a), unlike section

2421(a), criminalizes the transportation of a minor with the intent

to   engage    in   criminal   sexual   activity   "in   any   commonwealth,

territory or possession of the United States." 18 U.S.C. § 2423(a)

(emphasis supplied).      Second, the government filed a timely notice

of appeal challenging the district court's vacation of the earlier

sentence. That appeal is presently before us, and the case arising

from the re-indictment has been stayed pending its disposition.

Whether the new indictment is barred on double jeopardy grounds is

a serious question, see Ricketts v. Adamson, 483 U.S. 1, 8 (1987)

("We may assume that jeopardy attached at least when respondent

was sentenced . . . on his plea of guilty . . . ."); see also

United States v. Vinyard, 539 F.3d 589, 592 (7th Cir. 2008)

(explaining that "jeopardy attached in [the defendant's] first

proceeding once the court pronounced its sentence"), which is not

before us.




reasoning resembles that later articulated by a panel of this
court. See United States v. Maldonado-Burgos, 844 F.3d 339, 350
(1st Cir. 2016), rehearing en banc denied by an equally divided
court, ___ F.3d ___, ___ (1st Cir. 2017) [No. 15-2145].


                                    - 5 -
II.    ANALYSIS

              This appeal turns on whether the district court had

jurisdiction to revisit the defendant's sentence more than three

weeks after its imposition.          We approach this question mindful

that an appellate court has an unflagging obligation "to satisfy

itself . . . of the subject-matter jurisdiction of the trial court

before proceeding further."        United States v. Martínez-Hernández,

818 F.3d 39, 49 (1st Cir. 2016) (quoting Royal Siam Corp. v.

Chertoff, 484 F.3d 139, 142 (1st Cir. 2007)).                   Even where, as

here, no jurisdictional issue was broached in the district court,

we    "have   an   affirmative   obligation    to     examine   jurisdictional

concerns."      Irving v. United States, 162 F.3d 154, 160 (1st Cir.

1998).     This obligation grows out of a frank recognition that,

"[i]n the absence of jurisdiction, a court is powerless to act."

Am. Fiber & Finishing, Inc. v. Tyco Healthcare Grp., 362 F.3d 136,

138 (1st Cir. 2004).

              Whether   the      district     court     had     subject-matter

jurisdiction is a purely legal issue.               Thus, our review of the

jurisdictional question raised in this appeal is de novo.                     See

Morales Feliciano v. Rullán, 378 F.3d 42, 49 (1st Cir. 2004).

              We begin with bedrock.         Subject to only a handful of

narrowly      circumscribed   exceptions,      a    district    court   has    no

jurisdiction to vacate, alter, or revise a sentence previously

imposed.      See Dillon v. United States, 560 U.S. 817, 819 (2010)


                                     - 6 -
(noting that "[a] federal court generally may not modify a term of

imprisonment once it has been imposed" (internal quotation marks

omitted)); see also United States v. Griffin, 524 F.3d 71, 84 (1st

Cir. 2008).      When — as in this case — a judgment of conviction is

entered upon imposition of a sentence, that sentence is a final

judgment and, therefore, may only be modified by the sentencing

court in certain limited circumstances.                 See Dillon, 560 U.S. at

824.   Because a district court (apart from collateral proceedings

such as habeas corpus or coram nobis) has no inherent power to

modify     a   sentence   after     it   has     been   imposed,   those   limited

circumstances "stem[] solely from . . . positive law."                      United

States v. Ortiz, 741 F.3d 288, 292 n.2 (1st Cir. 2014).

               In this instance, the district court did not identify

the source of its perceived authority to vacate the defendant's

sentence.      After examining all the potential sources, we conclude

that, in the circumstances of this case, no provision of positive

law empowers a district court to vacate a sentence, sua sponte,

more than three weeks after imposing it.

               Outside the context of a collateral challenge, there is

only   a   single     statute     that   bears     upon   the   district   court's

jurisdiction to tamper with a previously imposed sentence of

imprisonment.         That statute, 18 U.S.C. § 3582(b), provides in

pertinent      part   that   "a   judgment       of   conviction   that    includes

. . . a sentence constitutes a final judgment."                 The exceptions to


                                         - 7 -
this statutory imperative are few and far between.                       The principal

exception is contained in section 3582(c), which states that a

sentencing "court may not modify a term of imprisonment once it

has   been    imposed"    except,    as    relevant         here,   "to    the    extent

. . . expressly permitted by statute or by Rule 35 of the Federal

Rules of Criminal Procedure."3             There is no statute that offers

comfort to the district court's sua sponte exercise of jurisdiction

here.

             Nor is Rule 35 a promising source of authority.                           The

relevant      subsection    states        that       "[w]ithin      14    days        after

sentencing, the court may correct a sentence that resulted from

arithmetical, technical, or other clear error."                     Fed. R. Crim. P.

35(a). Because Rule 35(a) constitutes a limitation on a sentencing

court's      substantive    authority,          we    have     held      that    it     is

jurisdictional     in     nature.         See    Griffin,       524      F.3d    at    84.

Consequently,     we     have   interpreted          Rule    35(a)'s      fourteen-day

temporal window "as imposing a jurisdictional limit on the district

court's ability to correct a sentence."                      Id. at 83.          If the




        3
       The omitted portions of the statute refer to the fact that
a sentence also may be modified in two other ways.        First, a
sentence may be modified at the request of the Director of the
Bureau of Prisons (under certain circumstances). See 18 U.S.C.
§ 3582(c)(1)(A). Second, a sentence may be modified in instances
in which a defendant has been sentenced based on a sentencing range
that has since been lowered by the Sentencing Commission.       Id.
§ 3582(c)(2). These exceptions are irrelevant to the case at hand,
and we need not discuss them.


                                     - 8 -
fourteen-day period "expires with no ruling from the district

court, the district judge's jurisdiction to alter the sentence is

extinguished."      United States v. Gonzalez-Rodriguez, 777 F.3d 37,

42 (1st Cir. 2015).

               Here, the temporal window closed before the district

court acted.       The court entered its order of vacation a full

twenty-four days after imposing the sentence.              By that time, the

court had lost its jurisdiction to revise the sentence under Rule

35(a).4

              We have examined two other Criminal Rules that might be

thought to confer the needed authority on the district court.                As

we explain below, neither of them rescues the district court's sua

sponte vacation of the defendant's sentence.

             Federal   Rule   of   Criminal   Procedure   11   authorizes   a

              district court to set aside a guilty plea in certain

              circumstances.    See Fed. R. Crim. P. 11.        However, once

              the district court has sentenced the defendant, it lacks


     4 For the sake of completeness, we note that, in all events,
the district court's action was not the type of correction that
Rule 35(a) envisions.     The sentence was not tainted by any
"arithmetical, technical, or other clear error." And the rule was
never intended to afford a sentencing court the "opportunity
. . . simply to change its mind about the appropriateness of a
sentence." Gonzalez-Rodriguez, 777 F.3d at 42 (quoting Fed. R.
Crim. P. 35 advisory committee's notes to 1991 amendments); see
United States v. Sevilla-Oyola, 770 F.3d 1, 11 (1st Cir. 2014)
(explaining that Rule 35(a) does not "enable a judge to fix errors
committed . . . during proceedings prior to the imposition of
sentence" (emphasis in original)).


                                     - 9 -
    jurisdiction (except in a collateral proceeding) to

    consider a defendant's arguments about the validity of

    his guilty plea.       See Fed. R. Crim. P. 11(e); Martínez-

    Hernández, 818 F.3d at 47-48; United States v. Ruiz-del

    Valle, 8 F.3d 98, 102 (1st Cir. 1993); see also Wilkins

    v. United States, 754 F.3d 24, 27-28 (1st Cir. 2014)

    (recognizing that after a court imposes a sentence,

    collateral    attack     and   direct   appeal    are   the   only

    mechanisms available to vitiate a guilty plea); In re

    Ellis, 356 F.3d 1198, 1200 (9th Cir. 2004) (en banc)

    (similar).    Put simply, Rule 11 functions as a mandatory

    prohibition      on    the   district   court's     jurisdiction,

    outside the collateral attack context, to set aside a

    guilty plea after the entry of judgment.

   Federal   Rule    of    Criminal    Procedure     33   empowers    a

    district court in a criminal case to "vacate any judgment

    and grant a new trial."           But that power is limited to

    cases — unlike this one — in which there was a trial in

    the first place.        See Fed. R. Crim. P. 33(a); United

    States v. Graciani, 61 F.3d 70, 78 (1st Cir. 1995).               In

    any event, Rule 33 allows a judgment to be vacated only

    "upon the defendant's motion" — and here, the defendant

    never filed such a motion.




                             - 10 -
             In this case, all roads lead to Rome. The district court

already had imposed a sentence, more than three weeks had elapsed,

and the defendant had not sought either to withdraw his guilty

plea or to vacate the imposed sentence (indeed, he urges us to

reinstate the sentence).         Given those facts, the district court

was not at liberty, sua sponte, to annul the sentence.                  See United

States v. Patterson, 381 F.3d 859, 865 (9th Cir. 2004).                       Having

accepted     the   defendant's    plea,      conducted     a    full    sentencing

hearing, and imposed a sentence, the court lost any jurisdiction

to change its mind.           See Gonzalez-Rodriguez, 777 F.3d at 42;

Griffin, 524 F.3d at 84.

             One loose end remains: the district court announced at

the disposition hearing that it was reserving judgment on the

question of whether the statute under which the defendant had been

charged applies in Puerto Rico.              The court, however, cited no

authority empowering it to make such a reservation — and we are

aware of none.

             The   practice    that    the     district    court       employed    —

sentencing the defendant, yet purporting to withhold a decision on

a dispositive issue in the case — would, if sanctioned, sow the

seeds   of    chaos   and   confusion.         If   such       reservations     were

permissible, both the government and the defendant would be in

limbo; the "virtues of . . . finality," Blackledge v. Allison, 431

U.S. 63, 71 (1977), would be lost; and the judiciary's "historic


                                      - 11 -
respect for the finality of the judgment of a committing court,"

Schneckloth v. Bustamonte, 412 U.S. 218, 257 (1973) (Powell, J.,

concurring), would become a distant memory.

            If     the    criminal   justice     system     is     to     function

appropriately, the imposition of a sentence must carry with it an

"expectation of finality and tranquility" for the defendant, the

government, and the public.          United States v. Santiago Soto, 825

F.2d 616, 620 (1st Cir. 1987).               Allowing a district court to

sentence a defendant while at the same time reserving a merits-

related    issue    for    subsequent   decision    would     undermine         this

expectation.       The district court's purported reservation was,

therefore, a nullity.

            Let us be perfectly clear.             We do not question the

district    court's       intentions:   we    recognize     that    the     court,

glimpsing a legal problem that it believed had eluded detection,

took steps to remedy what it perceived to be an injustice.                  But in

the law as in life, the end rarely justifies the means; and a court

— even one prompted by the best of intentions — is powerless to

act in the absence of jurisdiction.

III.   CONCLUSION

            Congress      has   given   courts    and     parties       tools   for

challenging a conviction and sentence that were imposed in error.

A court may reject a plea agreement or postpone a sentencing

hearing sine die until it has had an opportunity to resolve all


                                     - 12 -
relevant issues. If the defendant is dissatisfied with the outcome

of the proceeding, he may file a direct appeal of his sentence or

may attack it collaterally by petitioning for post-conviction

relief under 28 U.S.C. § 2255.   But the district court, acting sua

sponte, lacks jurisdiction to vacate a defendant's sentence simply

because the court has come to conclude, more than three weeks

later, that the government has grounded the charge against the

defendant on an inapposite statute.5   Following the imposition of

sentence and the expiration of the time allotted under Rule 35(a),

it is up to the defendant to decide whether to stand by his guilty

plea, and no provision of positive law allows the district court

to usurp the defendant's choice.     See In re Ellis, 356 F.3d at

1200; cf. Vinyard, 539 F.3d at 595 (granting writ of mandamus to

set aside district court's sua sponte vacation of plea and sentence

because district court "effectively usurped a choice that was the

defendant's to make").




     5 Our holding in United States v. Carrasquillo-Peñaloza, 826
F.3d 590 (1st Cir. 2016), made pellucid that a challenge to the
statute of conviction is "nonjurisdictional" and can be waived by
the defendant's failure to raise it in a timely fashion. Id. at
593 (dismissing appeal and affirming conviction over defendant's
argument that application of 18 U.S.C. § 2423(a) to him exceeded
congressional authority).    By his actions in this case, the
defendant has plainly waived any challenge to the applicability of
18 U.S.C. § 2421(a).


                              - 13 -
          We need go no further. For the reasons elucidated above,

the order voiding the sentence and dismissing the original case is

vacated, and the sentence shall forthwith be reinstated by the

district court.



So Ordered.




                             - 14 -
