946 F.3d 622 (2nd Cir. 2020), 18-1839, United States v. Ojeda
|Docket Nº:||18-1839, August Term 2019|
|Citation:||946 F.3d 622|
|Opinion Judge:||Dennis Jacobs, Circuit Judge:|
|Party Name:||UNITED STATES of America, Appellee, v. Rafael OJEDA, aka Papi, Calvin Ojeda, aka Killa, Jonathan Ojeda, aka Shorty, aka Chorty, Servando Jose Gomez, aka June, Hector Tirado, aka Hec, Travis Profit, aka Trap, Angel Sepulveda, aka A-plus, Eduardo Vasquez, aka Spider, Jason Perez, aka Santana, Trevis Bowens, aka T-money, Jhovy Dionizio, Christian ...|
|Attorney:||ROBERT A. CULP, Garrison, NY, for Defendant-Appellant Dwight Anderson. GEOFFREY S. BERMAN, United States Attorney for the Southern District of New York (Anden Chow, Samson Enzer, Jared Lenow, Daniel B. Tehrani, on the brief), for Appellee United States of America.|
|Judge Panel:||Before: JACOBS, SACK, HALL, Circuit Judges.|
|Case Date:||January 09, 2020|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued: September 26, 2019
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Southern District of New York (Daniels, J. )
ROBERT A. CULP, Garrison, NY, for Defendant-Appellant Dwight Anderson.
GEOFFREY S. BERMAN, United States Attorney for the Southern District of New York (Anden Chow, Samson Enzer, Jared Lenow, Daniel B. Tehrani, on the brief), for Appellee United States of America.
Before: JACOBS, SACK, HALL, Circuit Judges.
Dennis Jacobs, Circuit Judge:
When Dwight Anderson was sentenced to 120 months for federal drug offenses, the United States District Court for the Southern District of New York (Daniels, J. ) "recommend[ed]" to the Bureau of Prisons that Andersons federal sentence run concurrently with a yet-to-be-imposed state sentence for a parole violation. Anderson argues that the court acted on the erroneous assumption that it lacked the authority to impose a sentence that is concurrent or consecutive to a yet-to-be imposed state sentence (the "Concurrency Issue"). The government has consented to a limited remand on the Concurrency Issue. However, the government opposes Andersons appeal of a related Guidelines issue: whether the district court misunderstood its authority to reduce Andersons sentence below the statutory mandatory minimum to account for time served on his state sentence for a related offense (the "Mandatory Minimum Issue").
Opposing remand on the Mandatory Minimum Issue, the government cites Andersons plea waiver of the right to appeal any sentence below 188 months imprisonment. We conclude that in this case, in which the government has waived the appeal waiver for the limited purpose of correcting an error that does not reopen the many component sentencing decisions, it will not impair the efficacy of appeal waivers to exercise our control over our mandate to allow consideration on remand of a closely linked issue that likewise can be decided without unwinding the sentence as a whole.
Accordingly, as we remand pursuant to the governments waiver of the appeal waiver to permit the district court to impose concurrency (or not) with a state sentence for violation of parole, we likewise remand to the district court to clarify whether, in view of its authority to impose
a sentence below the mandatory minimum to account for time served on a related state sentence, such a sentence is warranted here.
This case, and the complexities the district court was required to unwind, arise from Andersons busy career as a drug trafficker, and the ensuing criminal proceedings against him in multiple jurisdictions. The sequencing of those proceedings--from Andersons March 2016 arrest in Pennsylvania to his June 2018 federal sentencing in New York--shows the relatedness of the two sentencing issues on appeal, and of the underlying offenses.
On March 4, 2016, while on parole for a 2013 drug conviction (the "2013 State Offense"), Anderson was arrested and detained in Pennsylvania on new state drug charges (the "2016 State Offense"). Shortly afterwards, while Anderson was incarcerated in Pennsylvania, federal prosecutors in New York charged Anderson separately, alleging that Andersons state offenses were part of a broader violent drug trafficking conspiracy based in the Bronx (the "Federal Offense"). Anderson pled guilty to both the state and federal charges.
Thus, Andersons March 2016 arrest was to lead to three separate sentencing proceedings:  an April 2016 proceeding for the 2016 State Offense in which a Pennsylvania state court sentenced Anderson to 18-36 months imprisonment;  a June 2018 proceeding before Judge Daniels, who imposed a 120-month sentence (which Anderson now appeals); and  a further Pennsylvania state court proceeding to determine Andersons sentence for violating parole, which had not yet taken place at the time of Andersons federal sentencing.
As part of his October 2017 plea agreement with the federal prosecutors (the "Plea Agreement"), Anderson stipulated to an offense level of 33 under the United States Sentencing Guidelines ("U.S.S.G." or the "Guidelines") and a mandatory minimum sentence of ten years imprisonment. The Plea Agreement further stipulated that Andersons two prior state convictions (one for the 2013 State Offense and the other for the 2016 State Offense) constituted relevant conduct for purposes of Andersons federal sentencing.
Because Anderson and the government did not agree on certain sentencing enhancements for criminal history, the applicable Guidelines range was in dispute: Anderson advocated for 135 to 168 months, while the government advocated for 151 to 188 months.2 Nevertheless, Anderson agreed that he would "not file a direct appeal ... of any sentence within or below the Stipulated Guidelines Range of 135 to 188 months imprisonment." It was further agreed that this waiver would be binding "even if the [district court] employs a Guidelines analysis different from that stipulated to" in the Plea Agreement; and that it would apply "regardless of whether the term of imprisonment is imposed to run consecutively or concurrently" with the undischarged portion of any other sentence that had been imposed on Anderson at the time of sentencing.
Defense counsels sentencing memorandum emphasized Andersons abandonment by his father, exposure to drugs at a tender age, and desire to leave drug dealing behind. Counsel argued that 120 months--the mandatory minimum, and the sentence imposed on several of Andersons co-defendants--would be an appropriate sentence.
The sentencing memorandum also urged the court to adjust Andersons federal sentence to account for his state sentences, both for the 2016 State Offense (which had already been imposed) and his parole violation (which had not). Counsel explained that, when his federal sentencing took place, Anderson would be approximately two years into his state sentence of 18-36 months imprisonment for the 2016 State Offense, which the parties agreed was relevant conduct with respect to his Federal Offense. Accordingly, Counsel argued that the court should:  order that Andersons federal sentence run concurrently with the remainder of his term of imprisonment for the 2016 State Offense, pursuant to U.S.S.G. § 5G1.3(b)(2); and  adjust his federal sentence downward for time already served for the 2016 State Offense, pursuant to § 5G1.3(b)(1). Counsel noted that when U.S.S.G. § 5G1.3(b)(1) applies, the sentencing court has authority to adjust a federal sentence below the statutory mandatory minimum, citing United States v. Rivers, 329 F.3d 119 (2d Cir. 2003). Finally, counsel argued that, pursuant to § 5G1.3(c), Andersons federal sentence should likewise run concurrently with his yet-to-be imposed state sentence for violation of parole.
The Governments submission recommended a Guidelines sentence (135 to 168 months, per the PSR) but agreed with Andersons position that his federal sentence should be adjusted downward to account for time served on his state sentence, and "set to run concurrently with his prior and anticipated state sentences." At the sentencing hearing, the government again recommended that the court impose a sentence of 135 to 168 months, minus time served. Defense counsel again requested the mandatory minimum (120 months), with a further reduction for time served.
Ultimately, the district court imposed a 120-month sentence--the mandatory minimum. The court stated that this was "the appropriate sentence," (Sentencing Transcript ("Tr.") 9:5), having "already taken ... into consideration" Andersons time served, (Tr. 9:16-17). However, there is evidence of confusion about the courts authority to impose a sentence below the mandatory minimum. In dialogue with defense counsel (who argued for a 120-month sentence minus 27 months for time served) the court responded: "I cant subtract 27 months from the 120. There is a mandatory minimum sentence of 120." (Tr. 7:9-10.) Defense counsel referred the court to his submission, which cited authority holding that, in a case like Andersons, a sentence can indeed be reduced below the mandatory minimum to account for time served for relevant conduct.
The following colloquy ensued between the district court, defense counsel (Mr. Pittell) and the government (Mr. Chow), indicating that the district court remained uncertain about its authority to reduce the sentence below the mandatory minimum: THE COURT: You are asking me to impose what sentence?
MR. PITTELL: 120 minus 27, so it would be 93 months.
THE COURT: I understand. Mr. Chow, is that your position, also, that thats what the statute permits? Because my understanding -
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