US v. Torres-Otero

• Decision Date: 09 April 2000
• Docket Number: TORRES-OTERO,No. 98-1832,TORRES-OTER,P,N,98-1832
• Citation: 232 F.3d 24
• Parties: (1st Cir. 2000) UNITED STATES, Appellee, v. LUIS ANGEL, a/k/a EL ENAMO, a/k/a LITTLE LUIS, a/k/a PRIMO, Defendant, Appellant, LUIS A., Plaintiff, Appellant, v. UNITED STATES, Defendant, Appellee. o. 98-2012. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 24

232 F.3d 24 (1st Cir. 2000)

UNITED STATES, Appellee, v. LUIS ANGEL TORRES-OTERO, a/k/a EL ENAMO, a/k/a LITTLE LUIS, a/k/a PRIMO, Defendant, Appellant, LUIS A. TORRES-OTERO, Plaintiff, Appellant, v. UNITED STATES, Defendant, Appellee.

No. 98-1832, No. 98-2012.

UNITED STATES COURT OF APPEALS, FOR THE FIRST CIRCUIT.

Heard April 9, 2000.

Decided November 14, 2000.

Peter Goldberger, with whom Pamela A. Wilk was on brief, for appellant.

Grace Chung Becker, Trial Attorney, United States Department of Justice, on brief for appellee.

Before Stahl, Circuit Judge, Bownes, Senior Circuit Judge, and Lipez, Circuit Judge.

STAHL, Circuit Judge.

Before us are two separate appeals. In the first, Luis Angel Torres-Otero appeals a district court order directing, as a remedy under 28 U.S.C. 2255, the issuance of an out-of-time notice of appeal from his original criminal conviction. The district court ordered this relief to rectify its failure to advise Torres-Otero at sentencing that he had a right to appeal his sentence. Torres-Otero contends that the district court's reinstatement of the right wrongfully denied him at sentencing - the right to pursue a timely appeal - is not enough, and that he is entitled instead to vacatur of his sentence and de novo resentencing. For the reasons stated below, we do not agree and thus affirm the district court's 2255 order. We then reach his direct criminal appeal, the second appeal before us by virtue of the district court's order, and rule that the district court did not improperly impose a fine on Torres-Otero at sentencing. We therefore affirm the criminal judgment imposed by the district court.

I. Background

In July 1992, Torres-Otero pled guilty to conspiracy to possess heroin with intent to distribute, see 21 U.S.C. 841(a)(1), 846, and participation in monetary transactions in criminally derived property, see 18 U.S.C. 1957. The district court sentenced him to 168 months in prison, five years' supervised release, and a $ 25,000 fine. The court failed, however, to apprise him of his right to appeal his sentence, as was required under Fed. R. Crim. P. 32(a)(2).¹ Torres-Otero did not file a direct appeal from the guilty plea.

On August 13, 1996, Torres-Otero filed a pro se 2255 motion, claiming that the district court's imposition of the $ 25,000 fine violated the Eighth Amendment and that his lawyer had provided constitutionally ineffective assistance in failing to object to the district court's Rule 32(a)(2) error. The district court summarily denied this motion and Torres-Otero did not appeal. Eight months later Torres-Otero, this time represented by counsel, filed a motion requesting leave to file a second 2255 motion on the same ground as that advanced in the first motion. The district court denied the motion for lack of jurisdiction because, under the Antiterrorism and Effective Death Penalty Act, Pub. L. 104-132, 110 Stat. 1214 (Apr. 24, 1996) (AEDPA), permission to file a second or successive 2255 motion must be sought and obtained from the court of appeals, see 28 U.S.C. 2244(b)(3)(A), and Torres-Otero had not received such authorization.

Nine months later, on January 26, 1998, Torres-Otero moved the district court for relief from the order and judgment entered in the first 2255 action. This motion, styled as a motion for reconsideration under Federal Rule of Civil Procedure 60(b) or, alternatively, as a writ of coram nobis under the All-Writs Act, see 28 U.S.C. 1651, squarely focused for the first time on the court's failure to inform him of his right to appeal his sentence. Torres-Otero noted that the issue had been indirectly raised in his first 2255 motion but had been couched in the context of a Sixth Amendment claim,² and argued that the district court's failure to consider its own error in denying the original 2255 motion warranted reconsideration of the matter. Rather than asking for the opportunity to pursue an out-of-time appeal, however, Torres-Otero requested vacatur of his original sentence and a full resentencing proceeding. The government opposed all relief.

Determining that it had no power to award relief under Rule 60(b), the court found nonetheless that Torres-Otero had met the "exacting standard" for issuance of a writ of coram nobis. Accordingly, the district court granted Torres-Otero's motion for relief from judgment, reasoning that it had erred six years earlier in neglecting to inform Torres-Otero of his right to appeal. Turning to the issue of the most appropriate remedy for its earlier error, the district court denied Torres-Otero's request that it vacate his sentence and resentence him afresh. Instead, the district court directed that a notice of appeal be filed on Torres-Otero's behalf. It explained its reasoning as follows:

First, the only defect of which Torres-Otero complains in his motion is the Court's failure to notify him of his right to appeal. The order to file a notice of appeal is the simplest and quickest way to correct this defect. Torres-Otero complains that he was denied his right to appeal. An order that a notice of appeal be filed will immediately reinstate this right.

Additionally, in this motion he does not challenge other elements of his sentence, and the Court finds nothing in the record constituting error, other than the failure to advise Torres-Otero of his right to appeal. A full resentencing - with its concomitant expenditures of time and money - which would impose the same sentence and which would be held merely for the purpose of allowing the Court to go through the formal process of advising Torres-Otero of his right to appeal would therefore be an "empty exercise." The Court finds that the same ends may be achieved more expeditiously and more inexpensively by ordering that a notice of appeal be filed. A resentencing is therefore unnecessary.

D. Ct. Op. at 4-5 (internal citations omitted).

The government initially appealed this order, then apparently thought better of it and dismissed its appeal. Torres-Otero, meanwhile, pursued his own appeal, assigning error to the district court's decision not to begin the sentencing process anew.³ Four business days before this court was to hear oral argument on Torres-Otero's appeal, the government moved to dismiss for lack of subject-matter jurisdiction. The motion asked us to treat Torres-Otero's motion for reconsideration as an unauthorized successive 2255 motion. We declined to do so, instead construing the order in question as a "final decision on Torres's first 2255 motion, albeit a decision issued as a result of a motion to reconsider." United States v. Torres-Otero, 192 F.3d 12, 13 (1st Cir. 1999) (per curiam).⁴ Following Peguero v. United States, 526 U.S. 23, 29-30, 143 L. Ed. 2d 18, 119 S. Ct. 961 (1999), in which the Supreme Court held that Rule 32(a)(2) errors are harmless where the defendant had independent knowledge of his right to appeal, we then remanded the case to the district court for a factual hearing on whether Torres-Otero did, in fact, know he had a right to appeal, notwithstanding the district court's failure to tell him so. See Torres-Otero, 192 F.3d at 14.

At the post-remand hearing, Torres-Otero testified that he had no independent knowledge of his right to appeal, and his trial attorney testified that she could not recall advising him of that right. The government offered no evidence to the contrary. Accordingly, the district court found that reversible error had been committed at sentencing and returned the case to us to consider the remaining issues.

II. Jurisdiction

As an initial matter, Torres-Otero claims that we lack jurisdiction over his direct criminal appeal because, when the district court ordered the issuance of the notice of appeal as a 2255 remedy, it failed to vacate the judgment from his criminal conviction and enter a new one. The upshot, according to Torres-Otero, is that the appeal is untimely because it was not taken within ten days of entry of judgment. See Fed. R. App. P. 4(b)(1)(A).

It is true that no such judgment was entered; as mentioned above, the 1996 memorandum and order merely instructed the Clerk to file a notice of appeal on Torres-Otero's behalf. And it is also true that the notice of appeal must be deemed untimely if it was taken from the 1992 sentencing judgment. Given the substance of the district court's remarks in the memorandum and order regarding restoration of Torres-Otero's right to appeal, however, we think it fair to infer that the district court intended to follow the "standard practice among federal courts" in this situation: vacatur of the sentence and summary imposition of a new sentencing judgment identical in all respects to the earlier one except for the date of entry. Pratt v. United States, 129 F.3d 54, 62 (1st Cir. 1997). In contrast, a narrow reading of the order - the one Torres-Otero urges upon us - would lead to the conclusion that the district court ordered a remedy that it was powerless to impose. There is no practical reason to engage in such myopic formalism.

Of course, apart from construing what the district court meant to do in this case, the fact remains that no independent sentencing judgment was entered in Torres-Otero's direct criminal appeal (No. 98-1832). Given the nature of the district court's order, it is certainly understandable that the Clerk's Office for the District of Puerto Rico never actually performed the ministerial act of vacating the old sentencing judgment and replacing it with a judgment identical in all respects save the date of entry. The effect of the district court's order, however, is identical to the one that is brought about by the more formal approach prescribed in Pratt. In the analogous context of timely appeals taken from orders never reduced to a separate final judgment, as Fed. R. Civ. P. 58 requires, we have rejected the proposition that appellate jurisdiction necessarily depends on the ministerial entry of a separate...