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

Donald K. Stern, United States

_______________

United States

Attorney,

Attorney, was on brief for

States.

____________________

March 31, 1997

____________________

with

the Uni

BOUDIN,

contest his

Circuit Judge.
______________

prison

Modesto Saldana

sentence.

He

argues

that

appeals

to

delay

in

prosecuting him caused prejudice that should have been offset

by a downward departure.

a refusal to

not

is

error.

The government, as usual, says that

depart is not reviewable and, in any event, was

The merits of the case are straightforward; what

more difficult

is to

bring some

inherently confusing issue created

order to

a recurring,

by an overlap between the

question of our

authority to

review and the

merits of

the

Republic,

was

case.

I.

Saldana,

convicted

and

citizen

of

the

in January 1991 of

given probation.

In

Dominican

a drug offense

August and

in state court

October 1991,

he was

arrested by local authorities and charged with two additional

drug offenses committed while still on probation.

thereafter deported

in October

1991 before being

But he was

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.

he was sentenced to

for four

Following state court proceedings,

30 months in state prison

different offenses:

the January 1991

as punishment

offense, for

which probation was revoked; the two later 1991 offenses; and

the April 1993 offense.

The

Immigration and

Naturalization

Service

lodged

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.

with the federal

months of

offense at

He was not, however, charged

that time.

his 30-month state

Saldana served

20

was released

in

sentence and

December 1994.

Shortly afterwards,

jury and

charged with

he was indicted by

a federal grand

reentering the United

States without

permission after having been deported on account of a serious

drug

offense.

indictment was

U.S.C.

1995.

3282.

He

U.S.C.

well within the

1326(a),

1326(b)(2).

limitations period.

The

See 18
___

Saldana pled guilty to this charge in August

was sentenced

by the district

1996 to 70 months' imprisonment.

court in

February

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

for illegal reentry, U.S.S.G.

of 8

2L1.2(a), adjusted upward by

16 levels because Saldana had been deported for an aggravated

felony, id.
___

acceptance

2L1.2(b)(2), and reduced by 3 levels due to his

of

responsibility,

criminal history

convictions,

id.
___

3E1.1.

category (V) reflected the

three of

which

occurred after

April 1993.

-3-3-

Saldana's

four prior drug

his arrest

in

At sentencing Saldana argued that if he had been charged

with

the

sentence,

federal

the

federal

5G1.3(c), have been

sentence.

to

offense

while still

sentence

set to run

would,

serving

under

his

state

U.S.S.G.

concurrently with the

That provision gives the

state

district court latitude

make a new sentence concurrent to or consecutive with one

already

being served;

and,

as it

stood

prior to

1995

amendment,

the

comment that

U.S.S.G.

section's

might

have supported

would have effectively

federal sentence any

Saldana asked

time served on the

contained

concurrent

sentence.

subtracted from the

state sentence; and

the district court to achieve

downward

guidelines,

he

departure.

also argued

sentencing would also

history

note 3

5G1.3, comment. n.3 (Nov. 1994).1

Concurrency

through

application

score.2

that

With

this

the same result

less

basis

in

the

hypothetical single

have resulted in a much lower criminal

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
federal

as if the offenses had been the subject of a single

sentence.

guidelines ignore

This

would help

Saldana

less serious crimes sentenced

because

the

at the same

time

as a more serious one where the offense level disparity

is quite large.

U.S.S.G.

2His imaginative
offenses

would

automatically

not

3D1.4.

theory was that the

have

been

to his score if

prior
_____

three latest drug

convictions

he had been

sentenced at the

same time for those offenses and the reentry offense.

the

criminal history

fashion,

it

would

score
arguably

were computed
have

in this

underrepresented

criminal history, warranting an upward departure.

-4-4-

adding

But if
lenient
actual

U.S.S.G.

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

offender";

that

of

nothing

the offense

about

the

defendant made this "an unusual

and that the court

request

if

the

offense

here

would be more sympathetic to

government

There is nothing in
was any deliberate

omission on the
recognize that
process

nature

had

is claimed,

or

deliberately

a departure

delayed

The court then said:

misconduct or deliberate

not a

the due

Government.
case

the

case";

this case to suggest that

part of the
this is

of the

out of the heartland

prosecution for improper reasons.

there

or the

While

in which

process argument

I
due
is

the

being made, it seems

going

to me that if a

to be made where there

offender
suggests

and

nothing

the case [is]

departure is

is nothing about the

about

the

outside of

offense

that

the heartland,

that there should be something to suggest more than

mere delay, mere passage of time to
suitable

for

Accordingly as

heartland

make this case

downward

departure.

I said, I will not grant the motion

for downward departure.

Saldana now

misunderstood its

that we

says

have no

that

the

appeals,

arguing that

the district

authority to depart.

jurisdiction to hear

district

court did

The government says

the appeal.

not

4A1.3.

-5-5-

It also

misunderstand

authority and that its refusal to depart was sound.

____________________

court

its

Finally,

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

become a recurring distraction.

by the government

Under 18 U.S.C.

has

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

appeal from a

was no

guidelines";

sentence within the

legal error and the

but the

defendant may

guideline range if

only claim is that

court acted unreasonably in declining

not

there

the district

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

v. Romolo, 937 F.2d

______

and

two quoted rubrics.

20, 23 (1st Cir. 1991).

United States
______________

But confusion,

many "jurisdictional" objections, have resulted from the

overlap

between

the

jurisdictional issue

and

the merits.

Read

literally, 18 U.S.C.

authority to review a

vanishes when

3742(a) might

suggest that the

"violation" or "incorrect application"

the appellate court decides

that the district

court did not commit a legal error.

___

more sensible

defendant has a

reading

of the

statute

right to appeal to present a

-6-6-

is that

the

claim of legal
_____

error, or

at least a

statute bears

colorable claim.

out this reading.

It says that

review shall determine whether there

shall remand if

affirm" the

"shall

(stating

there was such

sentence.

that appellate

of the

the court on

was such a legal error,

an error, and if

18 U.S.C.

dismiss the appeal."

The balance

3742(f).

It does not say

See Romolo, 937

___ ______

jurisdiction

not "shall

F.2d at 22-23

exists

if

defendant

"advances a `purely legal' issue").

Plainly Saldana

is

claiming that

committed two legal errors:

departures can be based

the

district

by saying or implying

only upon the nature of

court

(1) that

the offense

or the

nature of the

government

offender and (2) that

a departure for

delay can only be based on misconduct.

colorable readings of the district court opinion.

alone,

the

arguably

first

so.

proposition

Why, then,

is

wrong,

is the government

and

These are

And, taken

the

second

arguing that we

have no jurisdiction to hear the appeal?

The answer,

perhaps, is partly

habit and a

leave out any possible argument, especially

attack on "jurisdiction."

v.

Morrison, 46
________

(dismissing appeal),

641, 654

one framed as an

But partly it is our own fault for

failing to follow a consistent course.

States
______

refusal to

F.3d

Compare, e.g., United

_______ ____ ______

127, 132-33

(1st

Cir. 1995)

with United States v. Romero,

____ ______________
______

(1st Cir. 1994) (affirming

sentence).

32 F.3d

Henceforth,

where the defendant colorably claims that a refusal to depart

-7-7-

rests upon a

legal error--and so

was

in

imposed

application of

save

time by

violation

of

alleges that the

_______

law

or

by

the guidelines--the government

focusing on

the question

an

sentence

incorrect

might wish to

of whether

a legal

error

occurred.

(1946)

Cf.
___

Bell v.
____

(jurisdiction may

be

Hood,
____

assumed

327 U.S.

678, 681-83

to determine

whether

complaint states a federal claim).

We do not mean to say that

objection is always inapt.

as rarely happens, the

that,

although

authority, it

And

if the

the

the so-called jurisdictional

It would be perfectly

defendant's only claim on

district

court

abused its discretion in

latter claim is

had

valid if,

appeal was

understood

its

declining to depart.

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

authority is perhaps a

we

must

answer

transcript.

thought
_______

was

the

scope

question of fact, but it

ourselves,

by

reviewing

the

of

its

is one that

sentencing

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

by

Saldana, and claimed to

heartland is defined by

nature

upon

be error, is

that departures are

two variables.

approximately these words.

The

court

that the guideline

the nature of the defendant

of the offense, and

the same

attributed to the district

and the

to be based

district court

did use

Taken at face value, they are not

a complete statement of the possible bases for departure.

True, many

grounds for

of the

possible factors that

departure relate to

the nature of

could provide

the offense,

and

others

categories

relate

to

the

do not exhaust

defendant.3

But

all possibilities.

these

two

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

defendant's conduct

or the

could

only
____

defendant.

be

We

based

on

the

know this--quite

apart from common sense--because the district court explained

that it would have

considered a departure in this

if the defendant's

sentence had been increased because

delay caused by prosecution

very case

of a

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.

heartland),

1994)

(claim

that "conduct"

cert. denied, 115

_____________

S.

Ct.

fell

outside

919 (1995);

the

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

characteristic

most

of

often

based

the defendant

upon

or

the

nothing unusual in these respects was

__________________

court

then

addressed

arguably different

the

single

some

special

offense and

that

presented here.

The

feature

from the typical case,

here

that

was

namely, the delay

in prosecution; and, far from ruling delay out as a potential

departure factor, the court

be the

basis for a

then considered when delay might

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

departure, assuming prejudice, only

as

basis for

if the delay were caused

by

government

misconduct reflecting

certainly a permissible

faith.

This

is

reading of the court's words, if one

juxtaposes

the

court's

"deliberate

misconduct" here

that "there should

bad

statement

that

with its

be something

there

was

no

subsequent statement

to suggest

more than

mere

delay."

If

the district court meant that only a bad faith delay

could support departure downward, it

law.

Under the

various

example,

arguably overstated the

guidelines, a delay in prosecution

adverse effects

apart from

on

the defendant's

the lost

opportunity for

-10-10-

can have

sentence;

for

a concurrent

sentence, it

can drastically

affect criminal history

the meantime the defendant is convicted of other crimes.

U.S.S.G.

4A1.1.

if in

See
___

Or, a mitigating circumstance--which might

otherwise affect sentencing--might disappear.

See U.S.S.G.
___

5K2.0.

It

ingenuity

seems to

us

possible that

someone

with time

and

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

Martinez,
________

77

thought this

F.3d

was so in

332, 336-37

United States
_____________

(1996).

But

it is

unlikely that

the district

court really

meant to

this

possibility,

and

certain

remote

it

is

v.

also

rule out

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

concern,

acceleration or

proceedings.

process claims

delay are

but

part of

Indeed, several

that delay

the

ordinary

the

accidents

fabric of

of

criminal

of our decisions rejecting due

caused sentencing

prejudice have

emphasized that the delay was not aimed at manipulation.

United States v. McCoy, 977

______________
_____

Acha v.
____

in the

F.2d 706, 711

(1st Cir. 1992);

United States, 910 F.2d 28, 32 (1st Cir. 1990).

_____________

present

case,

the

delay was

implicitly sinister.

-11-11-

See
___

neither

extreme

And

nor

District

judges normally

sentencing from the

course of,

evidence

These often

their

decisions

bench, just after, and sometimes

the presentation

as to

deliver

of numerous arguments

the permissible

range and

spontaneous remarks

on

in the

and even

proper sentence.

are addressed primarily

to

the case at hand and are unlikely to be a perfect or complete

statement of all of

judge said

here

the surrounding law.

was entirely

What

the district

adequate as

directed to

the

occasion to

consider whether

present case.

Accordingly,

Saldana

could or

we have

would

no

have received

sentence if the federal sentencing

a partly

concurrent

had occurred while he was

still in state

describe

prison.

in full

because it

guideline commentary

the current version

The question is

laborious even

is complicated

and a possible

by changes

ex post facto
_____________

were applied to Saldana.

in

claim if

Resolution can

await a case where the issue could affect the result.

Affirmed.
_________

to

-12-12-