U.S. v. Merced

• Decision Date: 10 August 2001
• Docket Number: DEFENDANT-APPELLANT,Docket No. 00-1810
• Citation: 263 F.3d 34
• Parties: (2nd Cir. 2001) UNITED STATES OF AMERICA, APPELLEE, v. JOHN MERCED, Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 34

263 F.3d 34 (2nd Cir. 2001)

UNITED STATES OF AMERICA, APPELLEE, v. JOHN MERCED, DEFENDANT-APPELLANT

Docket No. 00-1810

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: August 10, 2001

Decided: August 29, 2001

Appeal from the sentence imposed by the United States District Court for the Southern District of New York (Deborah A. Batts, Judge) following revocation of the defendant's supervised release.

VACATED AND REMANDED.

David P. Burns for Mary Jo White, United States Attorney for the Southern District of New York (Baruch Weiss, on the brief), for Appellee.

Steven M. Statsinger, The Legal Aid Society, Federal Defender Division, New York, NY for Defendant-Appellant.

Before: Miner, Jacobs, and Calabresi, Circuit Judges

Per Curiam

Defendant-Appellant John Merced appeals the sentence imposed by the United States District Court for the Southern District of New York (Batts, Judge) following Defendant's second violation of the terms of his supervised release arising from the same conviction.

After serving a term of incarceration in connection with a federal conviction for narcotics distribution, Merced was transferred to the custody of LeMarquis Community Corrections Center in New York. He fled, was arrested, and pled guilty in April 1997 to a one-count indictment charging him with escape from a halfway house in violation of 18 U.S.C. §§ 751(a) and 4082(a), a class D felony. For this, he was sentenced to 24 months' imprisonment, followed by three years' supervised release and a $100 special assessment. After Merced's release from prison in August 1998, he began serving his term of supervised release. As a condition of his supervised release, Merced was required to participate in a long- term residential substance abuse program.

In December 1999, following a petition by the Probation Department stating that he had violated the terms of his supervised release, Merced was detained once more. He pled guilty to a number of the specifications in the Probation Department's petition and was sentenced to time-served (which amounted to six months and eight days' imprisonment) and an additional term of supervised release. As before, the latter was conditioned on Merced's participation in a residential substance abuse program.

Shortly thereafter, Merced again violated the terms of his supervised release by refusing to comply with a referral to residential drug treatment. As a result, on December 18, 2000, the district court sentenced Merced to an additional term of 24 months' imprisonment, which it characterized as the maximum statutory period to which he could be sentenced.

Merced promptly moved for re-sentencing pursuant to Fed. R. Crim. P. 35(c) on the grounds that the sentence of 24 months' imprisonment, when coupled with the six months and eight days that Merced had served in connection with his first violation of supervised release, exceeded the two-year statutory maximum authorized for a violation of supervised release on a class D felony under 18 U.S.C. § 3583(e)(3). The government expressed agreement with Appellant's position that the two- year statutory maximum was an aggregate maximum for all violations of supervised release relating to the same underlying conviction and was not a per violation maximum.

On January 11, 2001, the district court denied Merced's Rule 35(c) request for re-sentencing. It stated that Appellant's motion was untimely because the seven-day period within which sentencing errors must be corrected under Rule 35(c) had expired. The district court noted that although Appellant's counsel submitted his motion to the district judge's chambers on December 22, 2000, those chambers were closed from December 22, 2000 through January 1, 2001. And, thus, by the time the district court received Appellant's motion, the seven-day time period had expired. The district court went on to say that even if the court had jurisdiction to amend Merced's sentence, it would not grant the requested relief because it found the reasoning in the cases cited by Appellant and the government unpersuasive.

Merced appeals the sentence imposed by the district court. We conclude that the district court's sentence of 24 months' imprisonment following Merced's second violation of his supervised release, when coupled with Merced's prior sentence of six months and eight days for his earlier supervised release violation in connection with the same underlying conviction, was imposed in violation of law.

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In assessing Appellant's claims and the sentence imposed by the district court, we review de novo the district court's legal determinations. See United States v. Johnson, 221 F.3d 83, 94 (2d Cir. 2000).

We find implausible the notion that, because the district judge's chambers were "closed from December 22, 2000 through January 1, 2001," the district court was unable to receive Appellant's motion on a date that was timely under Fed. R. Crim. P. 35(c). But, since Appellant does not now challenge the propriety of the district court's determination, we do not reach the question of whether his Rule 35(c) motion was timely.

Our precedents make clear that the imposition of a sentence in violation of law is plain error. See United States v. A-Abras Inc., 185 F.3d 26, 30 (2d Cir. 1999). As a result, a defendant has a right to appeal such a sentence, pursuant to 18 U.S.C. § 3742(a), regardless of whether the defendant made a timely motion to the district court to correct the sentence within the seven-day time period set forth in Fed. R. Crim. P. 35(c). See United States v. Abreu-Cabrera, 64 F.3d 67, 74 (2d Cir. 1995) ("In the event [a sentencing] error is only recognized [after the Rule 35(c) time period has expired,] it can be cured by appeal and remand."). The issue that Appellant raises is therefore properly before us.

This appeal raises issues of first impression in this circuit concerning the interpretation of the statutes prescribing maximum terms of imprisonment for multiple violations of supervised release. The applicable statute, 18 U.S.C. § 3583(e)(3), provides, in relevant part, that a district court, after considering certain factors, may

revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release... if the court... finds by a preponderance of the evidence that the defendant violated a condition of supervised...