
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1371                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   MODESTO SALDANA,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET            The opinion of this Court, issued on March 31, 1997, is amended        as follows:            On page 10, line 5 of 3rd full paragraph, replace "consecutive"        with "concurrent".                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1371                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   MODESTO SALDANA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Reginald C. Lindsay, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Diana L. Maldonado, Federal Defender Office, for appellant.            __________________            John  M. Griffin,  Assistant  United States  Attorney,  with  whom            ________________        Donald K. Stern, United States  Attorney, was on brief for  the United        _______________        States.                                 ____________________                                    March 31, 1997                                 ____________________                 BOUDIN,  Circuit  Judge.    Modesto Saldana  appeals  to                          ______________            contest his  prison  sentence.    He  argues  that  delay  in            prosecuting him caused prejudice that should have been offset            by a downward departure.  The government, as usual, says that            a refusal to  depart is not reviewable and, in any event, was            not  error.  The merits of the case are straightforward; what            is  more difficult  is to  bring some  order to  a recurring,            inherently confusing issue created  by an overlap between the            question of our  authority to  review and the  merits of  the            case.                                          I.                 Saldana,  a  citizen  of  the  Dominican  Republic,  was            convicted  in January 1991 of  a drug offense  in state court            and  given probation.   In  August and  October 1991,  he was            arrested by local authorities and charged with two additional            drug offenses committed while still on probation.  But he was            thereafter deported  in October  1991 before being  tried for            the newly charged crimes.                   Thereafter,  Saldana reentered the United States without            permission from the Attorney  General.  In April 1993  he was            arrested and drugs were found on his person, giving rise to a            fourth state drug charge.  Following state court proceedings,            he was sentenced to  30 months in state prison  as punishment            for four  different offenses:  the January 1991  offense, for            which probation was revoked; the two later 1991 offenses; and            the April 1993 offense.                 The  Immigration and  Naturalization  Service  lodged  a            detainer against Saldana at the time of his arrest.  In March            1994, it appears that federal agents interviewed him while he            was serving his state sentence.  He was not, however, charged            with the federal  offense at  that time.   Saldana served  20            months of  his 30-month state  sentence and  was released  in            December 1994.                 Shortly afterwards,  he was indicted by  a federal grand            jury and  charged with  reentering the United  States without            permission after having been deported on account of a serious            drug  offense.    8  U.S.C.      1326(a),  1326(b)(2).    The            indictment was  well within the  limitations period.   See 18                                                                   ___            U.S.C.    3282.  Saldana pled guilty to this charge in August            1995.  He  was sentenced  by the district  court in  February            1996 to 70 months' imprisonment.                 The   sentence  was  the   minimum  allowed  within  the            guideline range (70 to 87 months) as computed by the district            court.  The computation  reflected a base offense level  of 8            for illegal reentry, U.S.S.G.    2L1.2(a), adjusted upward by            16 levels because Saldana had been deported for an aggravated            felony, id.   2L1.2(b)(2), and reduced by 3 levels due to his                    ___            acceptance  of  responsibility,  id.      3E1.1.    Saldana's                                             ___            criminal history  category (V) reflected the  four prior drug            convictions,  three of  which  occurred after  his arrest  in            April 1993.                                         -3-                                         -3-                 At sentencing Saldana argued that if he had been charged            with  the  federal  offense  while still  serving  his  state            sentence,  the  federal  sentence  would,  under  U.S.S.G.               5G1.3(c), have been  set to run  concurrently with the  state            sentence.   That provision gives the  district court latitude            to  make a new sentence concurrent to or consecutive with one            already  being served;  and,  as it  stood  prior to  a  1995            amendment,  the  section's  application  note 3  contained  a            comment that  might  have supported  a  concurrent  sentence.            U.S.S.G.   5G1.3, comment. n.3 (Nov. 1994).1                   Concurrency  would have effectively  subtracted from the            federal sentence any  time served on the  state sentence; and            Saldana asked  the district court to achieve  the same result            through  a  downward  departure.   With  less  basis  in  the            guidelines,  he  also argued  that  this  hypothetical single            sentencing would also  have resulted in a much lower criminal            history  score.2    Taking  this lower  score  together  with                                            ____________________                 1The comment,  since repealed,  U.S.S.G. App.  C, Amend.            535 (Nov. 1995), suggested that the federal court compute the            sentence  as if the offenses had been the subject of a single            federal  sentence.    This  would help  Saldana  because  the            guidelines ignore  less serious crimes sentenced  at the same            time  as a more serious one where the offense level disparity            is quite large.  U.S.S.G.   3D1.4.                 2His imaginative  theory was that the  three latest drug            offenses  would  not  have  been   prior  convictions  adding                                               _____            automatically  to his score if  he had been  sentenced at the            same time for those offenses and the reentry offense.  But if            the  criminal history  score  were computed  in this  lenient            fashion,  it  would  arguably  have  underrepresented  actual            criminal history, warranting an upward departure.  U.S.S.G.                                           -4-                                         -4-            concurrency, Saldana argued that his  proper federal sentence            should be 21 to 31 months.                   In explaining its refusal  to depart, the district court            said that departures were possible when the case fell outside            the "heartland" of the guidelines; that the heartland "has to            do  with  the nature  of  the offense  or the  nature  of the            offender";  that  nothing  about  the  offense  here  or  the            defendant made this "an unusual  out of the heartland  case";            and that the court  would be more sympathetic to  a departure            request  if  the  government  had  deliberately  delayed  the            prosecution for improper reasons.  The court then said:                      There is nothing in  this case to suggest that                 there  was any deliberate  misconduct or deliberate                 omission on the  part of the  Government.  While  I                 recognize that  this is  not a  case  in which  due                 process  is claimed,  the due  process argument  is                 being made, it seems  to me that if a  departure is                 going  to be made where there  is nothing about the                 offender   and  nothing  about   the  offense  that                 suggests  the case [is]  outside of  the heartland,                 that there should be something to suggest more than                 mere delay, mere passage of time to  make this case                 suitable  for  a   heartland  downward   departure.                 Accordingly as  I said, I will not grant the motion                 for downward departure.                 Saldana now  appeals,  arguing that  the district  court            misunderstood its  authority to depart.   The government says            that we  have no  jurisdiction to hear  the appeal.   It also            says  that  the  district  court did  not  misunderstand  its            authority and that its refusal to depart was sound.  Finally,                                            ____________________            4A1.3.                                         -5-                                         -5-            it says  that Saldana  has misconstrued section  5G1.3(c) and            that the sentence would have had to be consecutive even if it            had been imposed during the term of the state sentence.                                         II.                 The jurisdictional argument made  by the government  has            become a recurring distraction.  Under 18 U.S.C.   3742(a), a            defendant may appeal from his sentence, inter alia, if it was                                                    __________            imposed "in violation of law" or by "an incorrect application            of  the sentencing  guidelines";  but the  defendant may  not            appeal from a  sentence within the  guideline range if  there            was no  legal error and the  only claim is that  the district            court acted unreasonably in declining  to depart.  See United                                                               ___ ______            States v. Tucker, 892 F.2d 8, 10 (1st Cir. 1989).            ______    ______                 Where the district court refuses  to depart because of a            misunderstanding as to the law, the legal error is reviewable            under one or both of the  two quoted rubrics.  United  States                                                           ______________            v. Romolo, 937 F.2d  20, 23 (1st Cir. 1991).   But confusion,               ______            and  many "jurisdictional" objections, have resulted from the            overlap  between  the  jurisdictional issue  and  the merits.            Read  literally, 18 U.S.C.    3742(a) might  suggest that the            authority to review a  "violation" or "incorrect application"            vanishes when  the appellate court decides  that the district            court did not commit a legal error.                        ___                 A  more sensible  reading  of the  statute  is that  the            defendant has a  right to appeal to present a  claim of legal                                                           _____                                         -6-                                         -6-            error, or  at least a  colorable claim.   The balance  of the            statute bears  out this reading.   It says that  the court on            review shall determine whether there  was such a legal error,            shall remand if  there was such  an error, and if  not "shall            affirm" the  sentence.  18 U.S.C.   3742(f).  It does not say            "shall  dismiss the appeal."   See Romolo, 937  F.2d at 22-23                                           ___ ______            (stating  that appellate  jurisdiction  exists  if  defendant            "advances a `purely legal' issue").                 Plainly Saldana  is  claiming that  the  district  court            committed two legal errors:   by saying or implying  (1) that            departures can be based  only upon the nature of  the offense            or the  nature of the  offender and (2) that  a departure for            government  delay can only be based on misconduct.  These are            colorable readings of the district court opinion.  And, taken            alone,  the  first  proposition  is  wrong,  and  the  second            arguably  so.  Why, then,  is the government  arguing that we            have no jurisdiction to hear the appeal?                 The answer,  perhaps, is partly  habit and a  refusal to            leave out any possible argument, especially  one framed as an            attack on "jurisdiction."  But partly it is our own fault for            failing to follow a consistent course.  Compare, e.g., United                                                    _______  ____  ______            States  v.  Morrison, 46  F.3d  127, 132-33  (1st  Cir. 1995)            ______      ________            (dismissing appeal),  with United  States v. Romero,  32 F.3d                                  ____ ______________    ______            641, 654  (1st Cir. 1994) (affirming  sentence).  Henceforth,            where the defendant colorably claims that a refusal to depart                                         -7-                                         -7-            rests upon a  legal error--and so  alleges that the  sentence                                               _______            was  imposed  in   violation  of  law  or  by   an  incorrect            application of  the guidelines--the government  might wish to            save  time by  focusing on  the question  of whether  a legal            error  occurred.   Cf.  Bell v.  Hood,  327 U.S.  678, 681-83                               ___  ____     ____            (1946)  (jurisdiction may  be  assumed  to determine  whether            complaint states a federal claim).                     We do not mean to say that  the so-called jurisdictional            objection is always inapt.   It would be perfectly  valid if,            as rarely happens, the  defendant's only claim on  appeal was            that,  although  the   district  court  had   understood  its            authority, it  abused its discretion in  declining to depart.            And  if the  latter claim is  advanced along with  a claim of            legal error, the government is within its rights to remind us            that  the abuse of discretion claim is not subject to review.            See Tucker, 892 F.2d at 9-10.            ___ ______                                         III.                 In turning  now to the  merits, the question  is whether            the district court did misunderstand its authority to depart.            What  the  district  court  thought  was  the  scope  of  its                                        _______            authority is perhaps a  question of fact, but it  is one that            we  must  answer  ourselves,  by   reviewing  the  sentencing            transcript.  Whether the district court's belief was mistaken            is plainly a legal question  that we review de novo.   United                                                        _______    ______            States v. Grandmaison, 77 F.3d 555, 560 (1st Cir. 1996).            ______    ___________                                         -8-                                         -8-                 The first proposition  attributed to the district  court            by  Saldana, and claimed to  be error, is  that the guideline            heartland is defined by  the nature of the defendant  and the            nature  of the offense, and  that departures are  to be based            upon  the same  two variables.   The  district court  did use            approximately these words.  Taken at face value, they are not            a complete statement of the possible bases for departure.                 True, many  of the  possible factors that  could provide            grounds for  departure relate to  the nature of  the offense,            and  others  relate  to  the  defendant.3     But  these  two            categories  do not exhaust  all possibilities.   Merely as an            example, United States v. Koon, 116 S. Ct. 2035, 2053 (1996),                     _____________    ____            approved a departure based partly upon the prosecution of the            same conduct by a second sovereign.                 But, of course, whatever the district court said, it did            not  mean  that   departures  could  only  be  based  on  the                                                 ____            defendant's conduct  or the  defendant.  We  know this--quite            apart from common sense--because the district court explained            that it would have  considered a departure in this  very case            if the defendant's  sentence had been increased because  of a            delay caused by prosecution  misconduct, a variable unrelated            to the defendant's circumstances or to his own conduct.                                            ____________________                 3See, e.g., United States v. Pierro, 32 F.3d 611, 619-20                  ___  ____  _____________    ______            (1st  Cir.  1994)  (claim  that "conduct"  fell  outside  the            heartland),  cert.  denied, 115  S.  Ct.  919 (1995);  United                         _____________                             ______            States v. Rivera, 994 F.2d 942, 952-53 (1st Cir. 1993) (claim            ______    ______            of heavy family responsibilities).                                         -9-                                         -9-                 Obviously what the district court meant  to say was that            departures  are   most   often  based   upon   some   special            characteristic  of  the defendant  or  the  offense and  that            nothing unusual in  these respects was  presented here.   The                            __________________            court  then  addressed  the  single  feature  here  that  was            arguably different  from the typical case,  namely, the delay            in prosecution; and, far from ruling delay out as a potential            departure factor, the court  then considered when delay might            be the  basis for a  departure.  In  sum, the first  claim of            error rests on a quotation out of context.                 The  second claim of error is a closer question, but not            by much.  The district court could be taken to have said that            it  would  consider  delay  in  prosecution  as  a  basis for            departure, assuming prejudice, only  if the delay were caused            by  government  misconduct reflecting  bad  faith.   This  is            certainly a permissible  reading of the court's words, if one            juxtaposes   the  court's   statement   that  there   was  no            "deliberate  misconduct" here  with its  subsequent statement            that "there should  be something  to suggest  more than  mere            delay."                 If  the district court meant that only a bad faith delay            could support departure downward, it  arguably overstated the            law.  Under the  guidelines, a delay in prosecution  can have            various  adverse effects  on  the defendant's  sentence;  for            example,  apart from  the lost  opportunity for  a concurrent                                         -10-                                         -10-            sentence, it  can drastically  affect criminal history  if in            the meantime the defendant is convicted of other crimes.  See                                                                      ___            U.S.S.G.   4A1.1.  Or, a mitigating circumstance--which might            otherwise affect sentencing--might disappear.  See U.S.S.G.                                                             ___            5K2.0.                 It  seems to  us  possible that  someone  with time  and            ingenuity  could construct a case where a careless or even an            innocent  delay produced  sentencing consequences  so unusual            and unfair that a departure would be permissible.  Certainly,            the Ninth Circuit  thought this  was so in  United States  v.                                                        _____________            Martinez,  77  F.3d  332, 336-37  (1996).    But  it is  also            ________            unlikely that  the district  court really  meant to  rule out            this  remote   possibility,  and  it  is   certain  that  the            possibility is irrelevant to the present case.                 After  all, what the district court  said is true almost                                                                   ______            all of the  time: deliberate tampering to increase a sentence            would   be  a   concern,  but   the  ordinary   accidents  of            acceleration or  delay are  part of  the  fabric of  criminal            proceedings.  Indeed, several  of our decisions rejecting due            process claims  that delay  caused sentencing  prejudice have            emphasized that the delay was not aimed at manipulation.  See                                                                      ___            United  States v. McCoy, 977  F.2d 706, 711  (1st Cir. 1992);            ______________    _____            Acha v.  United States, 910 F.2d 28, 32 (1st Cir. 1990).  And            ____     _____________            in the  present  case,  the  delay was  neither  extreme  nor            implicitly sinister.                                         -11-                                         -11-                 District  judges normally  deliver  their  decisions  on            sentencing from the  bench, just after, and sometimes  in the            course of,  the presentation  of numerous arguments  and even            evidence  as to  the permissible  range and  proper sentence.            These often  spontaneous remarks  are addressed primarily  to            the case at hand and are unlikely to be a perfect or complete            statement of all of  the surrounding law.  What  the district            judge said  here  was entirely  adequate as  directed to  the            present case.                 Accordingly,  we have  no  occasion to  consider whether            Saldana  could or  would  have received  a partly  concurrent            sentence if the federal sentencing  had occurred while he was            still in state  prison.   The question is  laborious even  to            describe  in full  because it  is complicated  by changes  in            guideline commentary  and a possible  ex post facto  claim if                                                  _____________            the current version  were applied to Saldana.  Resolution can            await a case where the issue could affect the result.                 Affirmed.                 _________                                         -12-                                         -12-
