United States v. Montes-Ruiz, 12–50398.

• Citation: 745 F.3d 1286
• Decision Date: 21 March 2014
• Docket Number: No. 12–50398.,12–50398.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Javier MONTES–RUIZ, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

745 F.3d 1286

UNITED STATES of America, Plaintiff–Appellee,

v.Javier MONTES–RUIZ, Defendant–Appellant.

No. 12–50398.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Aug. 26, 2013.

Filed March 21, 2014.

Devin Burstein, Warren & Burstein, San Diego, CA, for Defendant–Appellant.

Laura E. Duffy, United States Attorney, Bruce R. Castetter, Chief, Appellate Section, Criminal Division, James P. Melendres (argued), Assistant United States Attorney, San Diego, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Southern District of California, Larry A. Burns, District Judge, Presiding. D.C. No. 3:07–cr–01164–LAB–1.

Before: RONALD M. GOULD and JOHNNIE B. RAWLINSON, Circuit Judges, and IVAN L.R. LEMELLE, District Judge.^*

OPINION

RAWLINSON, Circuit Judge:

Javier Montes–Ruiz appeals the district court's decision to impose its sentence to run consecutively to an anticipated, but not-yet-imposed, federal sentence in a separate case. The United States (Government) counters that the appeal was rendered moot when the second sentencing court independently ordered that its sentence run consecutively to the first sentence. Montes–Ruiz also argues that the district court erred by sentencing him to a term of twenty-four months' incarceration for his violation of supervised release, without crediting the time he served for a prior revocation. We vacate and remand the first sentence imposed to ensure compliancewith the provisions of 18 U.S.C. § 3584.

I. BACKGROUND

In 2007, Montes–Ruiz pled guilty to attempted entry after a prior deportation in violation of 8 U.S.C. § 1326. His fast-track plea agreement limited supervised release to “not more than three years.” During the plea colloquy, the court informed Montes–Ruiz that he would face “up to three years of supervised release,” and that any violation of a release condition could result in “custody for up to the full amount of the supervised release term without any credit for time that you may have been in jail or that—the time that you were following the rules up to that point....” The court imposed two special conditions of release: (1) that Montes–Ruiz not violate federal, state, or local law, and (2) that Montes–Ruiz not reenter the United States illegally. The district court sentenced Montes–Ruiz to twenty-one months in custody and three years of supervised release.

Montes–Ruiz was released from custody and deported to Mexico on October 17, 2008. Four months later, in February, 2009, Montes–Ruiz attempted to reenter the United States at the San Ysidro Port of Entry, presenting false entry documents. Two persons were concealed in the trunk of his vehicle. The court revoked Montes–Ruiz's supervised release based on this reentry violation. He was sentenced to eighteen months in custody, with eighteen months of supervised release to follow.¹ The court imposed the same special conditions as it had imposed in 2007. Montes–Ruiz was released from custody for this conviction and removed to Mexico on March 6, 2012.

Two weeks later, on March 21, 2012, Montes–Ruiz attempted once more to enter the United States at the San Ysidro Port of Entry, again presenting false documents. Multiple individuals were concealed in the trunk of his vehicle. This attempted reentry resulted in two parallel proceedings: (1) prosecution for a substantive violation of 8 U.S.C. § 1326 (attempted reentry after a prior deportation), and (2) revocation of supervised release for violation of the release condition that Montes–Ruiz refrain from committing a crime. The illegal reentry and revocation cases proceeded before two different district court judges in the Southern District of California.

Judge Burns presided over the revocation proceeding. Based on Montes–Ruiz's admission, Judge Burns found Montes–Ruiz in violation of the condition that he not commit a crime. When asked whether Montes–Ruiz had been sentenced for the substantive violation of § 1326, Montes–Ruiz's counsel replied that Montes–Ruiz had pled guilty, but had not yet been sentenced. Judge Burns expressed reluctance to proceed with sentencing because he wanted to “take into consideration what sentence he [Montes–Ruiz] gets [on the § 1326 conviction] as part of the total sentence.” Montes–Ruiz agreed to continue the sentencing to a later date.

At the continued sentencing hearing, Montes–Ruiz informed Judge Burns that Judge Lorenz still had not imposed a sentence for the substantive § 1326 conviction. Again, Judge Burns recommended postponing Montes–Ruiz's sentencing because the sentence in the substantive case “implicates some factors under 3553 that I cannot consider” and “ordinarily [would cause] me to temper the amount of time I put into the breach of trust.” Montes–Ruiz responded that he nevertheless wished to proceed with sentencing before Judge Burns. When Judge Burns inquired about the Government's sentencing recommendation in the case pending before Judge Lorenz, Montes–Ruiz's counsel replied that the Government would be recommending twenty-four months in custody and “[he did not] expect that Judge Lorenz will give him less than that.”

In light of the severe nature of Montes–Ruiz's breach of trust and his repeated alien smuggling and use of false documents, Judge Burns reasoned that a high-end Guidelines sentence was warranted. Judge Burns imposed a sentence of twenty-four months in custody, to be served consecutively to the anticipated sentence to be imposed by Judge Lorenz for the substantive offense.² No objection was raised to the length of the sentence. Montes–Ruiz did, however, object to the imposition of a sentence that would run consecutively to a “nonexisting sentence.” Judge Burns responded with his belief that he had the authority to have the sentence run consecutively, but noted that he would “look at everything anew and impose an appropriate sentence” if he proved to be mistaken.

Montes–Ruiz subsequently appeared before Judge Lorenz to be sentenced for the substantive violation of § 1326. Montes–Ruiz requested an eighteen-month sentence to run concurrently with the sentence imposed by Judge Burns. The Government recommended a twenty-month sentence to be served consecutively to the sentence imposed by Judge Burns. Judge Lorenz correctly calculated a sentencing range of eighteen to twenty-four months, and imposed a low-end sentence of eighteen months' imprisonment to run consecutively to the sentence imposed by Judge Burns.

Montes–Ruiz timely appealed the sentence imposed by Judge Burns.

II. STANDARDS OF REVIEW

“We review ... mootness de novo....” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1286 (9th Cir.2013) (citations omitted).

We also review de novo the district court's conclusion that it possessed authority under 18 U.S.C. § 3584 to order that its sentence run consecutively to an anticipated, but not-yet-imposed federal sentence. See Miranda v. Anchondo, 684 F.3d 844, 849 (9th Cir.2012) (holding that questions of statutory construction and interpretation are reviewed de novo ).

We review a sentence imposed on revocation of supervised release “under the Booker reasonableness standard.” United States v. Hammons, 558 F.3d 1100, 1103 (9th Cir.2009) (citations omitted). If a defendant does not object to his sentence before the district court, we apply “plain error” review. Id. (citation omitted). “Plain error is: (1) error, (2) that is plain, and (3) that affects substantial rights.” Id. (citation omitted). If these conditions are met, relief is discretionary by this court if the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (citation omitted).

III. DISCUSSIONA. Mootness

Our jurisdiction is limited to cases involving live controversies. See Foster v. Carson, 347 F.3d 742, 745 (9th Cir.2003). The Government argues that there is no case or controversy because “regardless of [our] ruling concerning the district court's authority under § 3584 to impose a prospectively consecutive sentence, [Montes–Ruiz] will serve an aggregate sentence of 42 months in custody.” Montes–Ruiz counters that the appeal is not moot. If he prevails on appeal, “his sentence is not a foregone conclusion” because Judge Burns stated that he would “look at everything anew and impose an appropriate sentence.”

We have held that:

[I]f a district court errs in sentencing, we will remand for resentencing on an open record—that is, without limitation on the evidence that the district court may consider. On remand, the district court generally should be free to consider any matters relevant to sentencing, even those that may not have been raised at the first sentencing hearing, as if it were sentencing de novo.

United States v. Matthews, 278 F.3d 880, 885–86 (9th Cir.2002) (en banc) (citations omitted). The Government's mootness argument fails because if this case is remanded, Judge Burns is free to consider the sentence imposed by Judge Lorenz, which Judge Burns stated his inclination to do, and he may impose a lesser sentence. See id.

B. 18 U.S.C. § 3584

“The statute that governs the manner in which multiple sentences of imprisonment may be imposed is 18 U.S.C. § 3584 ...” Taylor v. Sawyer, 284 F.3d 1143, 1148 (9th Cir.2002). That statute provides in relevant part:

If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively ... Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.

18 U.S.C. § 3584(a).

We have interpreted this language to mean that “district courts cannot order a sentence to run either concurrently or...