United States, Appellee, v. Carlos Ramirez, Defendant, Appellant, 252 F.3d 516 (1st Cir. 2001)

The government argues that: (1) Ramirez has waived his right to appeal by signing a plea agreement that generally waived the right to appeal his sentence provided it was within the guidelines range; and (2) there was, on the merits, no authority which permitted the district court to provide the credit requested.

Waiver of Appeal

In the plea agreement, Ramirez expressly waived the right to appeal his sentence "unless the court impose[d] a custodial sentence greater than the high end of the guideline range and (of [the] statutory minimum term, if applicable) recommended by the government." Ordinarily we would reach the waiver issue first. Under the circumstances of this case, we believe it more prudent not to resolve the waiver issue. At Ramirez's change of plea hearing, the magistrate judge did not inquire whether the waiver of appeal was knowing and voluntary. Further, when asked by the magistrate judge to outline the plea agreement, the government said nothing about the waiver of appellate rights. The magistrate judge also advised Ramirez: "You have a right to appeal sentences that are high or low, you always have the right to appeal." (emphasis added). The government then failed to offer a correction to the Magistrate Judge's statement. Because of the problematic nature of these events, we turn to the merits.

Credit for State Sentence

The district court's interpretation of the guidelines as a matter of law is reviewed de novo. United States v. Caraballo, 200 F.3d 20, 24 (1st Cir. 1999). Determinations of fact are reviewed for clear error. United States v. Santos Batista, 239 F.3d 16, 21 (1st Cir. 2001).

Ramirez argues, based on commentary to U.S.S.G. § 5G1.3(b), that the district court should have credited his six month sentence for the related offense toward the statutory mandatory minimum sentence. For sentencing guidelines cases, U.S.S.G. § 5G1.3(b) requires that when an undischarged term of imprisonment "'resulted from offense(s) that have been fully taken into account in the determination of the offense level for the instant offense,' the new sentence must run concurrently with the undischarged term." United States v. Austin, 239 F.3d 1, 5 (1st Cir. 2001) (quoting U.S.S.G. § 5G1.3(b)). Further, the guidelines commentary advises a sentencing court imposing a concurrent sentence pursuant to section 5G1.3(b) to adjust the sentence for the instant offense by crediting any period of imprisonment already served for the underlying conduct "if the court determines that period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons." U.S.S.G. § 5G1.3 cmt. n.2. Section 5G1.3 was designed to prevent duplicative punishment by coordinating sentences, in certain circumstances, for related crimes. See Austin, 239 F.3d at 5.

There are two problems with Ramirez's reliance on section 5G1.3(b) and its commentary. First, the sentence involved here is a statutory mandatory minimum sentence, not a guidelines sentence, and so case law concerning the granting of credit for guidelines purposes does not necessarily govern. Except in limited circumstances,²  sentencing guidelines cannot be employed to impose a sentence below an applicable statutory mandatory minimum. Melendez v. United States, 518 U.S. 120, 126-27 (1996).

Some courts of appeal have nonetheless applied § 5G1.3 and Application Note 2 to cases involving statutory mandatory minimum sentences, crediting a defendant for time served in an undischarged, concurrent term of imprisonment, so long as the total of the time served and the reduced federal sentence equals or exceeds the statutory mandatory minimum period. See, e.g., United States v. Ross, 219 F.3d 592, 594-95 (7th Cir. 2000); United States v. Drake, 49 F.3d 1438, 1440-41 (9th Cir. 1995); United States v. Kiefer, 20 F.3d 874, 876-77 (8th Cir. 1994).³  The theory is that the federal mandatory minimum statute does not specify any particular way in which that minimum term is to be achieved. This court has not ruled on the issue. And we need not reach it here, as Ramirez's argument faces a different, and ultimately insurmountable, hurdle. Ramirez's second problem is that even if an analogy to the guidelines were accepted, it would do Ramirez no good. The issue here involves the giving of credit when the defendant has already completed his state sentence for the related conduct. Application note 2 to § 5G1.3 allows for a credit adjustment "[w]hen a sentence is imposed pursuant to subsection (b)." And the concurrent sentencing requirement of § 5G1.3(b), in turn, is only triggered when there is an undischarged term of imprisonment at the time of sentencing. See United States v. Rizzo, 121 F.3d 794, 800 (1st Cir. 1997). A defendant's eligibility for credit is derivative of his eligibility for a concurrent sentence. As a result, even if we extended the principle of § 5G1.3 to this case, Ramirez would not be entitled to credit because his state sentence was not undischarged (rather, it was discharged) at the time he was sentenced on the federal counts. See United States v. Cofske, 157 F.3d 1, 1-2 (1st Cir. 1998) (per curiam) (defendant not entitled to credit under § 5G1.3 for discharged state prison term, despite undischarged term of probation); Rizzo, 121 F.3d at 800 (§ 5G1.3 does not apply where term of imprisonment for prior conviction was discharged before sentencing for new indictment).

Our sister circuit courts have also held that § 5G1.3 is inapplicable to a discharged term of imprisonment. See, e.g., United States v. Turnipseed, 159 F.3d 383, 386-87 (9th Cir. 1998); United States v. McHan, 101 F.3d 1027, 1040 (4th Cir. 1996); United States v. Ogg, 992 F.2d 265, 266 (10th Cir. 1993). As held by the Second Circuit:

[T]he predicate is that the defendant's prior prison term remains "undischarged." There is no provision, either in the [Sentencing Reform] Act or in the Guidelines, stating that the court may order that the sentence it imposes be deemed to have been served concurrently with a prior prison term that has been fully discharged. If the defendant has completed his state prison term before the federal sentence is imposed, § 5G1.3 does not apply, and his federal prison term cannot be imposed concurrently.

United States v. Labeille-Soto, 163 F.3d 93, 99 (2d Cir. 1998) (emphasis added); cf. United States v. Parkinson, 44 F.3d 6, 8 (1st Cir. 1994) ("Section 5G1.3 is designed to achieve an incremental punishment for a defendant who, at the time of sentencing for the instant offense, is subject to an undischarged term of imprisonment."). By the time Ramirez was sentenced on the federal counts on August 28, 2000, a full year had passed since his state sentence was discharged.

Ramirez makes a second argument that the district court must have sentencing discretion because the government compromised his ability to seek credit under § 5G1.3 by waiting to arrest him until the day he discharged his state sentence.⁴  This is like the argument presented by the defendant in Rizzo, supra, who accused the government of delaying his federal indictment until he had served his state sentence so as to render him ineligible for a concurrent sentence. This court has recognized that deliberate government manipulation of some sentencing factors might give a defendant grounds for relief, but it has set a high threshold. "[D]eliberate tampering to increase a sentence would be a concern, but the ordinary accidents of acceleration or delay are part of the fabric of criminal proceedings." United States v. Saldana, 109 F.3d 100, 104 (1st Cir. 1997). Ramirez does not come close.

In sum, even if we were to apply guidelines analysis to a statutory mandatory minimum sentence case, it does not help Ramirez. The only avenue for relief available to Ramirez in the district court from the applicable statutory mandatory minimum sentence was to provide the government "all information and evidence" he had about the offenses at issue, 18 U.S.C. § 3553(f) (the "safety valve" provision). But Ramirez declined to do so.

The judgment of the district court is affirmed.