United States v. Ceballos
Decision Date | 14 October 2011 |
Docket Number | No. 09–50502.,09–50502. |
Citation | 671 F.3d 852,11 Cal. Daily Op. Serv. 13628,2011 Daily Journal D.A.R. 16271 |
Parties | UNITED STATES of America, Plaintiff–Appellee, v. Oscar CEBALLOS, a/k/a Chuco, Defendant–Appellant. |
Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Michelle D. Anderson, Burlington, VT, for the defendant-appellant.
André Birotte, Jr., United States Attorney, Robert E. Dugdale and Scott M. Garringer, Assistant United States Attorneys, Los Angeles, CA, for the plaintiff-appellee.
Appeal from the United States District Court for the Central District of California, Manuel L. Real, District Judge, Presiding. D.C. No. 2:09–cr–00094–R–1.Before: BARRY G. SILVERMAN and KIM McLANE WARDLAW, Circuit Judges, and WILLIAM K. SESSIONS, III, District Judge.**
Oscar Ceballos pleaded guilty to one count of conspiracy to distribute methamphetamine. He requested that the district court recommend a Southern California housing designation to the Bureau of Prisons. At the sentencing hearing, neither the district court nor counsel addressed this request. Eight days later, Ceballos and the government filed a joint stipulation asking the court to revise the Judgment and Commitment Order to include the designation recommendation. The district court denied the request. Ceballos appeals, asserting jurisdiction under 28 U.S.C. § 1291 and/or 18 U.S.C. § 3742. Because we lack jurisdiction to review a district court's nonbinding housing recommendation, we dismiss the appeal.
Oscar Ceballos entered a plea agreement to one count of conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii). Ceballos and the government agreed that he was a career offender and that 188 months was the low end of the Guidelines range. In his sentencing memorandum, Ceballos requested that the district court recommend a Southern California housing designation to the Bureau of Prisons. See 18 U.S.C. § 3621(b). On September 28, 2009, the district court sentenced Ceballos to 188 months imprisonment. The district court did not address the request for a designation recommendation, and Ceballos failed to object. The Judgment and Commitment Order was filed that same day.
On October 6, 2009, Ceballos and the government filed a joint stipulation and proposed order asking the district court to revise the Judgment and Commitment Order to add a recommendation to the Bureau of Prisons that Ceballos serve his sentence at a facility in Southern California. According to the stipulation:
Mr. Ceballos was born and raised in Southern California and his parents, his siblings and his children live here. Mr. Ceballos hopes to serve his sentence in a facility near his family support network. His family likewise hopes to see Mr. Ceballos as often as possible and cannot afford to travel long distances to see him during his incarceration. Accordingly, the parties stipulate that the Judgment and Commitment Order be revised to include a recommendation by the Court to the Bureau of Prisons that Mr. Caballos [sic] serve his prison sentence at a facility in Southern California. All other terms shall remain in full force and effect.
The district court denied the stipulation, writing by hand on the proposed order: This appeal ensued.
United States v. Handa, 122 F.3d 690, 691 (9th Cir.1997) (citation omitted); see United States v. Caterino, 29 F.3d 1390, 1394 (9th Cir.1994) (); United States v. Smartt, 129 F.3d 539, 540 (10th Cir.1997) (same).
Ceballos offers no legal support authorizing the district court to amend a judgment and commitment order eight days after it was entered. Under Rule 35, a district court may “correct a sentence that resulted from arithmetical, technical, or other clear error” within fourteen days of imposing the sentence. Fed.R.Crim.P. 35(a). No such error was made here. Similarly, there was no government motion to amend for substantial assistance. See Fed.R.Crim.P. 35(b). Nor was there a basis to amend due to a clerical error under Federal Rule of Criminal Procedure 36. See United States v. Penna, 319 F.3d 509, 513 (9th Cir.2003) () (emphasis in original).
Because the district court had no authority to amend the sentence after entry of the judgment and commitment order, its refusal to do so was not an error. 1
The Bureau of Prisons has the statutory authority to choose the locations where prisoners serve their sentence. See 18 U.S.C. § 3621(b) ( ); Rodriguez v. Smith, 541 F.3d 1180 (9th Cir.2008) (). In making those designation decisions, the BOP is required to consider, among other things:
(4) any statement by the court that imposed the sentence—
(A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or
(B) recommending a type of penal or correctional facility as appropriate.
18 U.S.C. § 3621(b). Section 3621(b) thus gives non-binding weight to recommendations made by the sentencing court. United States v. Dragna, 746 F.2d 457, 458 (9th Cir.1984) (per curiam) (citations omitted); see also United States v. Williams, 65 F.3d 301, 307 (2d Cir.1995) (same).
Our circuit has not addressed the question of whether an appeal lies from a district court's exercise of its discretion to recommend or to refuse to recommend a housing designation in a precedential opinion. However, several other circuit courts have addressed district court recommendations to the Bureau of Prisons, and have concluded that they are non-reviewable. The Second Circuit's decision in United States v. Pineyro, 112 F.3d 43 (2d Cir.1997) (per curiam), is instructive. There a prisoner appealed a district court's “non-binding recommendation that BOP not credit [him] with the time he spent in state custody.” Id. at 45. The Second Circuit Court of Appeals analogized this recommendation to a housing recommendation under the statute at issue here, 18 U.S.C. § 3621(b), and reasoned that the district court did not have any power to control the Bureau of Prison's decisions or actions in either situation. Id. The court thus dismissed the appeal for lack of jurisdiction, because “[t]he non-binding recommendation does not fit within the class of final orders appealable either under 28 U.S.C. § 1291 ( ) or 18 U.S.C. § 3742 (final sentencing orders).” Id.
Every other circuit that has confronted this issue has reached a similar conclusion—a recommendation to the Bureau of Prisons is not part of a sentence and cannot be appealed. See United States v. Kerr, 472 F.3d 517, 520 (8th Cir.2006) (); United States v. Yousef, 327 F.3d 56, 165 (2d Cir.2003) (...
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