United States v. Luna-Acosta

• Decision Date: 03 May 2013
• Docket Number: No. 12–2089.,12–2089.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Adrian LUNA–ACOSTA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

715 F.3d 860

UNITED STATES of America, Plaintiff–Appellee,

v.Adrian LUNA–ACOSTA, Defendant–Appellant.

No. 12–2089.

United States Court of Appeals, Tenth Circuit.

May 3, 2013.

Margaret A. Katze, Assistant Federal Public Defender, Albuquerque, NM, for Defendant–Appellant.

Jennifer M. Rozzoni, Assistant United States Attorney, (Kenneth J. Gonzales, United States Attorney, with her on the brief), Albuquerque, NM, for Plaintiff–Appellee.

Before BRISCOE, Chief Judge, SEYMOUR and LUCERO, Circuit Judges.

BRISCOE, Chief Judge.

Adrian Luna–Acosta appeals the district court's written judgment imposing a sentence of thirty-three months' imprisonment, filed five months after the district court had orally announced a sentence of twelve months' imprisonment. Luna–Acosta argues that the district court lacked jurisdiction under Fed.R.Crim.P. 35(a) to modify his twelve-month sentence. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand with instructions to vacate the thirty-three month sentence and file a written judgment consistent with the orally announced sentence of twelve months.¹

I

In August 2011, the government filed a one-count information charging Luna–Acosta with illegal re-entry, in violation of 8 U.S.C. § 1326(a) and (b). R. Vol. I at 7. Luna–Acosta subsequently entered a plea agreement under the “fast track” program.² Under that agreement, the government agreed to a downward departure of Luna–Acosta's final offense level for the purposes of calculating his guideline sentence. Id. at 11. In return, Luna–Acosta “agree[d] not to seek any further reduction, departure, deviation, or variance in the Final Adjusted Offense Level or the Criminal History Category, through motion or by argument at sentencing pursuant to 18 U.S.C. §§ 3553(a)(1–7), United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), or otherwise.” Id. at 13 (emphasis omitted). He also agreed that he would not appeal “any sentence within the advisory guideline range as determined by the Court.” Id. at 14 (emphasis omitted). Luna–Acosta subsequently pled guilty in August 2011.

The presentence report (PSR) prepared following Luna–Acosta's plea calculated an offense level of eighteen after factoring in the downward departure set forth in the plea agreement. R. Vol. II at 5. The resulting guideline range was thirty-three to forty-one months' imprisonment. Id. II at 10. The offense level contained in the PSR was higher than Luna–Acosta had expected. Luna–Acosta contends that, when the government offered the plea agreement, it told him that it anticipated an adjusted offense level of eight or eleven. Aplt. Br. at 8. This would have resulted in a guideline range of at most twelve to eighteen months' imprisonment. Id. Luna–Acosta's counsel apparently sent “an informal written objection” to the probation office. Id. at 10 n. 5.

The district court held a sentencing hearing on October 19, 2011. R. Vol. III at 7. The district court asked whether there was anything the parties wanted to say before sentencing. Id. at 9. Counsel for Luna–Acosta explained to the court the discrepancy between what the government told Luna–Acosta when offering the plea agreement and the offense level that was set forth in the PSR. Counsel argued it would be unfair to sentence Luna–Acosta based on the offense level in the PSR because Luna–Acosta had relied on the government's representation when he entered into the plea agreement. Id. at 10–11.

After reciting the calculations in the PSR and the departure from the plea agreement, the district court said it would impose a sentence of thirty-three months' imprisonment and two years' supervised release. The court did not address Luna–Acosta's argument regarding the higher than anticipated offense level. Id. at 13–14. Defense counsel then noted that new sentencing guidelines would go into effect on November 1, 2011, and they would no longer recommend supervised release in illegal re-entry cases. Id. at 14. Counsel requested that the district court either eliminate the term of supervised release, or “continue the sentencing until after November 1 [, 2011].” Id. The district court immediately agreed: “All right. We'll continue it until after November 1.” Id. at 15.

The court held a second sentencing hearing on November 16, 2011. Id. at 17. Defense counsel reminded the court that it had continued the hearing until after the new sentencing guidelines went into effect, and that the new guidelines no longer recommended supervised release in illegal re-entry cases. Id. at 19. In addition, while acknowledging that the court “had previously indicated that it was going to sentence my client to 33 months,” counsel asked the court to reconsider that sentence “for the reasons in [her] sentencing memo.” Id. at 19. Although she used the term “sentencing memo,” counsel was actually referring to the informal objection she had sent to the probation office. Aplt. Br. at 10 n. 5.

When asked by the court to restate Luna–Acosta's arguments, counsel explained how the government had calculated a higher offense level in the PSR than was represented when it offered the plea agreement. R. Vol. III at 20. Counsel also reiterated that the guidelines no longer recommended supervised release in reentry cases. Id. at 20–21. The court then asked the prosecutor, “Does the government have anything you want to say.” Id. at 21. The prosecutor said, “No, Your Honor.” Id.

The court then proceeded to sentence Luna–Acosta, saying it had considered the factual findings in the PSR and the 18 U.S.C. § 3553(a) factors. Id. This time, though, the court reduced the sentencing range from thirty-three to forty-one months' imprisonment to twelve to eighteen months' imprisonment. Id. The district court then imposed a sentence of twelve months' imprisonment, without any term of supervised release.

More than five months later, the district court reversed course. Without warning to either party, the district court entered on April 26, 2012, a written judgment imposing a sentence of thirty-three months' imprisonment without supervised release.³ R. Vol. I at 30–31. In an accompanying sentencing memorandum, the court explained that it lacked jurisdiction at the November 16 hearing to impose the twelve-month sentence. The court reasoned that it had continued sentencing only for the purposes of setting the term of supervised release, and that the thirty-three month sentence imposed on October 19 was a final sentence. Id. at 20–21. The court concluded that Fed.R.Crim.P. 35 was its only potential authority for modifying that sentence, but that by November 16 any sentence modification was time barred under Rule 35(a). The court also said that Luna–Acosta's request for a lower sentence violated the plea agreement. Id. at 21.

The court went on to state that it had always intended to imposed a thirty-three month sentence, although it noted this intention was irrelevant when deciding the question of whether it had jurisdiction to subsequently modify that sentence. Id. at 26. While the court said it was “acknowledg [ing]” its error in re-sentencing the defendant to twelve months' imprisonment, it also noted its large sentencing caseload, the defense attorney's imprecise reference to the “sentencing memorandum,” and the fact that “neither attorney adequately apprised [the court] of the circumstances in the Second Hearing [on November 16].” Id. at 21 & n. 2.

After Luna–Acosta filed his notice of appeal, the government filed a motion to enforce the appellate waiver in the plea agreement. In response, Luna–Acosta argued that his plea agreement allowed him to pursue his appeal because the district court acted without jurisdiction in filing its April 2012 written judgment memorializing a thirty-three month sentence. A three-judge panel of our court denied the government's motion without prejudice in a per curiam order, because “[t]o our knowledge, this court has not addressed whether a defendant can waive in a plea agreement a district court's alleged unauthorized modification of a sentence in violation of Rule 35(a).” United States v. Luna–Acosta, No. 12–2089, at 5 (10th Cir. Sept. 25, 2012).

The government now contends that the entire sentencing was final at the end of the first hearing on October 19, 2011. The government argues that the district court lacked jurisdiction to change any part of the sentence after that date unless the court made corrections that fell within the limited circumstances permitted by Rule 35(a). Therefore, the district court acted without jurisdiction when it reduced Luna–Acosta's term of imprisonment and removed the term of supervised release at the November 16 hearing. However, we note that the government does not cross appeal the district court's failure to include the two years of supervised release in its written judgment. Aplee. at 26 n. 8. It only asks that we affirm the district court's written judgment imposing thirty-three months' imprisonment.

II

As a threshold matter, we conclude Luna–Acosta did not waive his right to appeal. Under United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir.2004), we must determine “if the disputed appeal falls within the scope of the appellate waiver.” A district court's ability to modify a sentence under Rule 35(a) is jurisdictional. See United States v. McGaughy, 670 F.3d 1149, 1158 (10th Cir.2012). When Luna–Acosta waived the right to appeal his “sentence,” he did not waive his right to appeal a judgment entered without jurisdiction. As the Seventh Circuit explained in a similar case:

The terms of a plea agreement are interpreted according to the parties' reasonable expectations at the time they entered it, and here it seems clear that the parties expected the term ‘sentence’ to include only the events of the January 24 sentencing hearing, during which the court had jurisdiction to sentence Vega, and not any later attempt by the court to amend Vega's sentence absent jurisdiction.

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