United States v. Reyes-Santiago

Decision Date23 September 2015
Docket NumberNos. 12–2372,12–2381.,s. 12–2372
Citation804 F.3d 453
PartiesUNITED STATES of America, Appellee, v. Jorge REYES–SANTIAGO, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

804 F.3d 453

UNITED STATES of America, Appellee
Jorge REYES–SANTIAGO, Defendant, Appellant.

Nos. 12–2372

United States Court of Appeals, First Circuit.

Sept. 23, 2015.

804 F.3d 456

Vivianne M. Marrero–Torres, Assistant Federal Public Defender, with whom Hector E. Guzman–Silva, Federal Public Defender, and Hector L. Ramos–Vega, Assistant Federal Public Defender, Supervisor, Appeals Section, were on brief, for appellant.

Luke Cass, Assistant United States Attorney, with whom Rosa Emilia Rodriquez–Velez, United States Attorney, and Nelson Perez–Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before TORRUELLA, LIPEZ, and BARRON, Circuit Judges.


LIPEZ, Circuit Judge.

Appellant Jorge Reyes–Santiago (“Reyes”) was among 110 defendants charged in a two-count indictment with drug and firearms offenses arising from a massive drug ring operating in public housing projects in Bayamón, Puerto Rico. Most of the high-level members of the conspiracy, Reyes among them, pled guilty pursuant to plea agreements. Other than for Reyes, the sentences imposed on Count One, the drug count, ranged from 78 months to 324 months,1 the latter imposed on the chieftain of the enterprise. Reyes received the stiffest Count One sentence: 360 months. In this appeal, he seeks resentencing on Count One on three grounds: the government's alleged breach of his plea agreement, the sentencing court's alleged inappropriate conduct in demanding witness testimony, and the disparity between his sentence and those of similarly situated co-defendants. Reyes also claims the district court erred in ordering a 24–month consecutive sentence for his violation of supervised release conditions imposed in an earlier case.

We find merit in the disparity argument. Ultimately,2 in sentencing the lead conspirators, the district court refused to accept stipulated drug amounts only for Reyes, listed as Defendant # 9 in the indictment, and for the conspiracy's kingpin, Defendant # 1. Although sentencing courts have the discretion to reject recommendations made in plea agreements, and need not uniformly accept or reject such stipulations for co-defendants, they nonetheless must impose sentences along a spectrum that makes sense, given the co-defendants' criminal conduct and other individual circumstances. In this case, after reviewing Presentence Investigation Reports

804 F.3d 457

(“PSRs”) and sentencing transcripts for the leaders in the conspiracy, we conclude that the rationale offered by the district court for the substantial disparity between Reyes's sentence and the sentences of others above him in the conspiracy's hierarchy is unsupported by the record. We therefore must remand this case to the district court for reconsideration of Reyes's sentence.

Given that resentencing must occur, we need not decide whether the government breached Reyes's plea agreement in the prior sentencing proceedings. However, we discuss certain aspects of the government's performance to provide guidance for the proceedings on remand. Finally, as explained below, resentencing also is necessary for Reyes's violation of his conditions of supervised release.


Before delving into the substance of this case, we address the government's motion to dismiss the appeal on the ground that it was not timely filed.3 Under Federal Rule of Appellate Procedure 4(b), with exceptions inapplicable here, a notice of appeal in a criminal case must be filed within fourteen days of the entry of judgment. In United States v. Gonzalez–Rodriguez, 777 F.3d 37 (1st Cir.2015), we explained that the filing of a motion seeking reconsideration of a criminal sentence does not extend Rule 4(b)'s filing period. Id. at 41. Reyes properly recognizes that his appeal is untimely under Gonzalez–Rodriguez, as he filed his notice of appeal more than five months after judgment entered.4 He argues, however, that the government both waived and forfeited its untimeliness challenge. As explained below, we agree that the time limit set by Rule 4(b) may be waived and that the government did so in this case.

A. The Consequence of Untimely Filing

Although we previously have described the time limits in Rule 4(b) as “mandatory and jurisdictional,” United States v. Rapoport, 159 F.3d 1, 3 (1st Cir.1998) (internal quotation marks omitted); see also Gonzalez–Rodriguez, 777 F.3d at 40 n. 4, more recent Supreme Court cases have pointed out the difference between “ ‘a rule governing subject-matter jurisdiction and an inflexible claim-processing rule,’ ” Eberhart v. United States, 546 U.S. 12, 13, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) (per curiam) (quoting Kontrick v. Ryan, 540 U.S. 443, 456, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) ). In the latter instance, a failure to adhere to prescribed time limits does not foreclose jurisdiction, but may bar the tardy litigant from securing the relief sought if the opposing party properly objects. See Kontrick, 540 U.S. at 456, 124 S.Ct. 906 (noting that “a claim-processing rule, ... even if unalterable on a party's application, can nonetheless be forfeited if the party asserting the rule waits too long to raise the point”); see also Eberhart, 546 U.S. at 19, 126 S.Ct. 403.5

804 F.3d 458

We have not had occasion to revisit our earlier precedent describing Rule 4(b) as jurisdictional, but every circuit to decide the issue since Kontrick and Eberhart has concluded that Rule 4(b) is a claims-processing rule and, hence, may be waived or forfeited. See United States v. Gaytan–Garza, 652 F.3d 680, 681 (6th Cir.2011) (per curiam) (citing cases). As the other circuits have interpreted the Supreme Court's cases, the distinction rests on whether the time-bar at issue originated in a statute. Id. We see merit in that view, which draws support from the Court's comparison in Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007), between the “longstanding treatment of statutory time limits for taking an appeal as jurisdictional,” and the conclusion in Kontrick that the limitations period at issue was a claims-processing rule. Bowles, 551 U.S. at 210–11, 127 S.Ct. 2360. In Bowles, the Court observed that critical to the Kontrick holding was “the fact that ‘[n]o statute ... specifies a time limit for filing a complaint objecting to the debtor's discharge.’ ” (quoting Kontrick, 540 U.S. at 448, 124 S.Ct. 906 ) (alteration and omission in original). Id. at 211, 127 S.Ct. 2360 ; see also id. at 211–12, 127 S.Ct. 2360 (referring to “the jurisdictional distinction between court-promulgated rules and limits enacted by Congress”).

Rule 4(b) does not arise from a statutorily imposed time constraint,6 and we see no rationale for crossing the line the Supreme Court seemingly has drawn between statute-based time limits and those without legislative origin.7 Hence, we hold that Rule 4(b)'s time limits are not “mandatory and jurisdictional” in the absence of a timely objection from the government. We thus must consider whether the government waived or forfeited its challenge to appellant's tardiness.

804 F.3d 459

B. Waiver or Forfeiture

The government's motion to dismiss reflected a belief that it may object to a late filing under Rule 4(b) at any time, and, once it does, the court is obliged to enforce the rule. It therefore asserted that its motion—filed three months after this case was submitted for decision following oral argument—required us to dismiss Reyes's appeal. In so arguing, the government relied on the statement in Gonzalez–Rodriguez that the time limits in Rule 4(b), “even if not jurisdictional, are mandatory when raised by the government.” 777 F.3d at 40 n. 4. In Gonzalez–Rodriguez, however, the government had contended in its original response brief that the court had no jurisdiction to consider the defendant's sentencing appeal. Here, by contrast, the government suggested in a footnote in its original brief that Reyes's appeal was timely because the fourteen-day clock for filing a notice of appeal did not begin to run until after the district court denied Reyes's motion for reconsideration. In pertinent part, the footnote states:

“[T]he Supreme Court has held that the timely filing of such a motion [for reconsideration] in a criminal action tolls the time for filing a notice of appeal and the time begins to run anew following disposition of the motion.” United States v. Vicaria, 963 F.2d 1412, 1413–14 (11th Cir.1992 [ ) ] (citing United States v. Dieter, 429 U.S. 6, 8–9[, 97 S.Ct. 18, 50 L.Ed.2d 8] (1976[ ) ]; see also United States v. Ortiz, [741 F.3d 288], at [239], n. 2 (1st Cir.[]2014) (“motions for reconsideration in criminal cases are not specifically authorized either by statute or by rule”); United States v. Healy, 376 U.S. 75, 84[, 84 S.Ct. 553, 11 L.Ed.2d 527] (1964[ ) ]. “A motion for reconsideration in a criminal case must be filed within the period of time allotted for filing a notice of appeal in order to extend the time for filing the notice of appeal.” See United States v. Russo, 760 F.2d 1229, 1230 (11th Cir.1985).

Gov't Br. at 3 n.2.


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