          United States Court of Appeals
                     For the First Circuit



No. 14-1357

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                    JORGE E. MALDONADO-RIOS,

                      Defendant, Appellant.



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

         [Hon. José Antonio Fusté, U.S. District Judge]



                             Before

                   Kayatta, Selya, and Barron,
                         Circuit Judges.


     Camille Lizarríbar-Buxó and Lizarríbar Law Office, on brief
for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
on brief for appellee.


                          June 15, 2105
              Per Curiam.    This appeal requires us to make clear the

procedure that a district court should follow when a defendant

moves to modify a sentence during the pendency of an appeal of

that sentence.     As we explain, in a case like this, that procedure

is set forth in Federal Rule of Appellate Procedure 12.1, which

provides for the use of an indicative ruling by the district court

in such circumstance.        Here, however, lacking any direct guidance

from this Court as to the procedure it should follow, the District

Court did not issue an indicative ruling but instead simply issued

a modification order.         We hold that the District Court lacked

jurisdiction to issue that order while this appeal was pending.

We thus remand the case in accordance with the procedure that Rule

12.1   sets    forth   so   that   the    District   Court   may   enter   the

modification order.

                                         I.

              In December of 2013, the appellant, Jorge E. Maldonado-

Rios, pled guilty to possession with intent to distribute more

than five kilograms of cocaine.           That offense carries a statutory

minimum sentence of 120 months' imprisonment.                See 21 U.S.C.

§ 841(b)(1)(A)(ii).         At the time of Maldonado's sentencing, the

sentencing guidelines recommended a higher sentence, of 135 to 168

months.       Consistent with those guidelines, the District Court

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imposed a sentence of 135 months.              Maldonado then appealed.            He

argued that the District Court had committed procedural error by

inadequately    explaining       its   reasons    for   choosing      a   135-month

sentence rather than the 120-month mandatory minimum.

             While    Maldonado's      appeal     was      pending,       the    U.S.

Sentencing    Commission      passed    Amendment    782    to   the      sentencing

guidelines.     See United States Sentencing Commission, Guidelines

Manual, App. C Supp., Amendment 782 (Nov. 1, 2014). That amendment

lowered by two levels the "base offense level" -- the baseline

from which recommended sentencing ranges are calculated under the

guidelines -- for most drug offenses.               See id.       The Sentencing

Commission     made    that    amendment       retroactive.        See     U.S.S.G.

§ 1B1.10(d).

             As a result, in November of 2014, Maldonado moved to

have   the   District    Court    modify   his     sentence      under     18   U.S.C

§ 3582(c)(2).        That statute allows a district court to reduce a

defendant's sentence that was "based on a sentencing range that

has subsequently been lowered by the Sentencing Commission" in a

retroactive amendment.         18 U.S.C. § 3582(c)(2).            Several months

later, on February 25, 2015, the government informed the District

Court that it agreed that Maldonado's sentence should be reduced

to the 120-month mandatory minimum in consequence of Amendment

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782.   And then, on March 31, 2015, the District Court issued an

order that purported to reduce Maldonado's sentence to the 120-

month minimum, even though this appeal was still pending.

          Neither Maldonado nor the government informed this Court

of those developments in the District Court.    We became aware of

them only from a review of the District Court's public docket.

                               II.

          Because Maldonado's appeal was pending at the time the

District Court ruled on his motion to modify the sentence under

§ 3582(c)(2), we hold that the District Court lacked jurisdiction

to enter the order reducing the sentence.    See United States v.

Torres-Oliveras, 583 F.3d 37, 44 (1st Cir. 2009) (explaining the

"general rule that . . . 'a notice of appeal . . . divests the

district court of its control over those aspects of the case

involved in the appeal'" (quoting Griggs v. Provident Consumer

Discount Co., 459 U.S. 56, 58 (1982))); United States v. Distasio,

820 F.2d 20, 23 (1st Cir. 1987) ("[A] docketed notice of appeal

suspends the sentencing court's power to modify a defendant's

sentence."). For while we have not previously held that a district

court lacks the power to order a sentence modification under 18

U.S.C. § 3582(c) while an appeal of that sentence is pending, see

Torres-Oliveras, 583 F.3d at 44, we have held that a district court

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lacks    jurisdiction   to   do   so   under   Federal    Rule    of    Criminal

Procedure 35(b), see Distasio, 820 F.2d at 23-24.                And we see no

basis for distinguishing between these two types of modifications

for jurisdictional purposes.

            Moreover, while we have noted that there are "limited

exceptions" to the "general rule" that an appeal ends a district

court's   jurisdiction,      Torres-Oliveras,    583     F.3d    at    44,   those

exceptions relate to district court orders that concern matters

unrelated to the "substance of the decision" being appealed, 16A

Charles A. Wright, et al., Federal Practice & Procedure § 3949.1,

at 59 (4th ed. 2008); see also United States v. Ortega, 859 F.2d

327, 334-35 (5th Cir. 1988).1           Those exceptions are thus not

applicable here, given the nature of the District Court's order.

            That the District Court lacked the power to issue the

March 31 order -- which otherwise would give Maldonado the relief

he seeks and thus seemingly moot this appeal -- does not mean that

we must proceed to the merits of the appeal.               Instead, Federal

Rule of Appellate Procedure 12.1 offers us an alternative, and



     1  Ortega upheld a district court's jurisdiction to modify a
sentence despite a pending appeal under the then-in-force version
of Fed. R. Crim. P. 35(a), which allowed courts to "correct an
illegal sentence at any time." 859 F.2d at 334 n.11 (quoting Fed.
R. Crim. P. 35(a)).

                                   - 5 -
more efficient, means of proceeding.         In fact, the Advisory

Committee Notes to Rule 12.1 expressly anticipate that Rule's use

for "motions under 18 U.S.C. § 3582(c)" made during the pendency

of an appeal. Fed. R. App. P. Rule 12.1 advisory committee's note.

           Rule 12.1 states that a district court faced with a

motion that it "lacks authority to grant because of an appeal that

has been docketed and is pending" may "state[] either that it would

grant the motion or that the motion raises a substantial issue."

Fed. R. App. P. 12.1(a).       And, the Rule further provides, the

movant must then "promptly notify" the Court of Appeals' clerk of

the district court's ruling.    Id.   This Court then has the option

of   "remand[ing]   for   further     proceedings   but     retain[ing]

jurisdiction," dismissing the appeal, or continuing to hear the

appeal.   Fed. R. App. P. 12.1(b).

           This procedure makes much practical sense.       It is both

the procedure that the District Court -- and the parties -- should

have followed in this case, and the one that district courts and

parties should follow in like cases in the future.        The Rule 12.1

procedure ensures that the district court and the appellate court

are not simultaneously analyzing the same issue.          The procedure

also avoids the confusion that may result if the appellate court

issues an order inconsistent with the relief that the defendant

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believes the district court has already provided.            And, finally,

the procedure provides an efficient means of resolving an issue on

appeal that the district court is willing to render moot.

           Of course, in this case, the District Court did not

actually issue an indicative ruling.         But the District Court could

hardly have more clearly stated "that it would grant the motion,"

as Rule 12.1 requires, given that the District Court purported to

grant the requested relief directly.            Thus, to facilitate the

operation of the procedure that Rule 12.1 contemplates, we will

treat the District Court's March 31, 2015, order as though it were

an indicative ruling under Rule 12.1.

           Having done so, in accord with the procedure set forth

in Rule 12.1, we retain jurisdiction and remand this case to the

District   Court.   That    way   it   may    enter   an   order   modifying

Maldonado's sentence, as that court has indicated Amendment 782 to

the sentencing guidelines warrants. Once the District Court enters

its modification order, the government and the defendant shall

notify this Court within 14 days as to whether the pending appeal

may be dismissed. If either party does not believe that the appeal

should be dismissed, that party shall state its reasons fully in

its notice to this Court.

           So ordered.

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