United States v. Ramon

958 F.3d 919

UNITED STATES of America, Plaintiff-Appellee,

v.Charles RAMON, III, Defendant-Appellant.

No. 19-1221

United States Court of Appeals, Tenth Circuit.

FILED May 1, 2020

Rebekah A. Gallegos (Mark T. Baker and J. Walker Boyd on the briefs), of Peifer, Hanson, Mullins & Baker, P.A., Albuquerque, New Mexico, for Defendant-Appellant.

Michael C. Johnson, Assistant U.S. Attorney (Jason R. Dunn, U.S. Attorney, with him on the brief), Denver, Colorado for Plaintiff-Appellee.

Before PHILLIPS, McKAY^* , and MORITZ, Circuit Judges.

PHILLIPS, Circuit Judge.

In this appeal, we consider whether the district court erred by ordering its sentence to run consecutively to future federal sentences. By the terms of 18 U.S.C. § 3584(a), we hold that it did err. But the defendant failed to object to this and on appeal he has failed to show that the error was plain. We affirm.¹

BACKGROUND

In 2016, after serving his federal prison sentence for having possessed a firearm after a felony conviction, see 18 U.S.C. § 922(g)(1), Charles Ramon III began serving a mandatory term of supervised release. Before Ramon completed the term, his probation officer filed a petition, soon followed by two superseding petitions, to revoke Ramon's supervised release. At the revocation hearing on the petitions, the district court found three violations—two for possessing a controlled substance and one for again illegally possessing a firearm. Of these, the most serious was Ramon's illegal possession of a firearm—a Grade B violation. See U.S. Sentencing Guidelines Manual (U.S.S.G.) § 7B1.1 cmt. n.5 (U.S. Sentencing Comm'n 2002). For this violation, the court imposed the statutory maximum sentence, twenty-four months' imprisonment.²

During the revocation hearing, the government mentioned that it might seek to indict Ramon for illegally possessing a firearm (the conduct in part underlying the revocation). Mindful of this, the district court did something unusual—it ordered that Ramon's twenty-four-month sentence run "consecutively to any sentences imposed previously or prospectively in federal or state court." R. vol. 3 at 81:24–25 (sentencing hearing) (emphasis added); see also R. vol. 1 at 61 (final judgment). At the hearing, Ramon did not object to the district court's running his sentence consecutively to future federal sentences.

DISCUSSION

On appeal, Ramon argues that the district court exceeded its sentencing authority under 18 U.S.C. § 3584(a) by ordering that Ramon's sentence run consecutively to future federal sentences. Because Ramon did not object in the district court, we review his argument under the plain-error standard.³ Under this standard, we must find "(1) an error, (2) that is plain, which means clear or obvious under current law, and (3) that affects substantial rights." United States v. Rosales-Miranda , 755 F.3d 1253, 1258 (10th Cir. 2014) (quoting United States v. McGehee , 672 F.3d 860, 876 (10th Cir. 2012) ). If these three criteria are satisfied, "this Court may exercise discretion to correct the error if (4) it seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. (citation omitted). Here, though we agree with Ramon that the district court erred, we conclude that its error was not plain. Accordingly, we affirm the district court's sentence.

I. Prong One: The District Court Erred.

As do the parties, we direct our attention to 18 U.S.C. § 3584(a). We review de novo questions of statutory interpretation. See United States v. Porter , 745 F.3d 1035, 1040 (10th Cir. 2014). The key statutory subsection reads as follows:

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, except that the terms may not run consecutively for an attempt and for another offense that was the sole objective of the attempt. 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.

§ 3584(a). The subsection sets out "the most common situations in which the decision between concurrent and consecutive sentences must be made: where two sentences are imposed at the same time, and where a sentence is imposed subsequent to a prior sentence that has not yet been fully served." Setser v. United States , 566 U.S. 231, 239, 132 S.Ct. 1463, 182 L.Ed.2d 455 (2012).⁴

Ramon's case fits neither situation. The district court did not sentence Ramon on multiple convictions. Nor did it sentence him while he was subject to an undischarged term of imprisonment. In this circumstance, the government argues, the district court has discretion to impose its sentence consecutively to future federal sentences. Ramon disagrees, arguing that § 3584(a)'s text bars the district court from running its sentence consecutively to future federal sentences.

We agree with Ramon. After careful review, we hold that § 3584(a)'s text disallows a district court from a preemptive strike dictating how its sentence will run in relation to later federal sentences. Given this, the district court exceeded its authority by ordering that its sentence run consecutively to later federal sentences. If allowed, the first federal court sentencing a defendant could usurp the sentencing discretion that § 3584(a) reserves exclusively to later sentencing federal courts.

Section 3584(a) sets the procedure that applies when a district court sentences a defendant "already subject to an undischarged term of imprisonment." In such an instance, this subsection provides that "[m]ultiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently." Id. So § 3584(a) declares that "the court" has full authority and discretion to run its sentence consecutively or concurrently to an undischarged term of imprisonment. Importantly, "the court" as used here must refer to the second court imposing a term of imprisonment. After all, "the court" is singular and § 3584(a)'s consecutive-versus-concurrent decision arises only after the "multiple terms of imprisonment imposed at different times" have been imposed . Id. By this, Congress requires that these "terms of imprisonment" already exist in real life before a court can run another sentence to them, whether consecutively or concurrently. Obviously, the first court, which imposed the sentence to which the defendant is "already subject to," could not have imposed its sentence before the second court imposed its sentence—by definition the second court had not yet then imposed its sentence.⁵ In that instance, the first court would be usurping sentencing authority that § 3584(a) declares belongs exclusively to the second court.

The first district court cannot circumvent Congress's procedure by deciding the consecutive-versus-concurrent issue before the second court has even sentenced the defendant. Allowing that would violate Congress's command that the second court impose its sentence concurrently or consecutively to any undischarged terms of imprisonment.

We also note that the other federal circuit courts ruling on this issue have reached the same conclusion. See United States v. Almonte-Reyes , 814 F.3d 24, 27–29 (1st Cir. 2016) (concluding that § 3584(a) impliedly prohibits an earlier federal sentencing court from imposing its sentence consecutively or concurrently to a future federal sentence); United States v. Obey , 790 F.3d 545, 549–50 (4th Cir. 2015) (relying on circuit precedent to reach this conclusion); United States v. Montes-Ruiz , 745 F.3d 1286, 1290–93 (9th Cir. 2014) (reaching this conclusion based on both circuit precedent and § 3584(a) implicitly reserving this decision to the later-sentencing court). For all these reasons, we conclude that the district court erred by ordering its sentence run consecutively with future federal sentences.

II. Prong Two: The District Court's Error Was Not Plain.

An error is plain when it is "clear or obvious under current law[.]" United States v. Rivera-Oros , 590 F.3d 1123, 1126 (10th Cir. 2009) (internal quotation marks omitted) (quoting United States v. Goode , 483 F.3d 676, 681 (10th Cir. 2007) ). Ramon must "demonstrate either that this court or the Supreme Court has resolved these matters in his favor, or that the language of the relevant statutes is ‘clearly and obviously’ limited to the interpretation [he] advances[.]" United States v. Fagatele , 944 F.3d 1230, 1239 (10th Cir. 2019) (citations omitted); see also United States v. Brown , 316 F.3d 1151, 1158 (10th Cir. 2003) ("[T]he absence of circuit precedent [does not] prevent[ ] the clearly erroneous application of statutory law from being plain error." (second and third alterations in original) (quoting United States v. Evans , 155 F.3d 245, 252 (3d Cir. 1998) )).

Here, Ramon acknowledges that no Supreme Court or Tenth Circuit case has ruled on the issue he presents. So to show the error is plain, he rests on § 3584(a)'s text. In support of this statutory-text argument, his best case is Brown , 316 F.3d at 1158. In Brown , our court concluded that the district court had erred by allowing a one-offense-level reduction for acceptance-of-responsibility. We ruled that the text of U.S.S.G. § 3E1.1 presented a binary choice—two levels or none. Id. Next addressing the second prong of plain-error review, we deemed it a close question whether the district court's error was sufficiently clear or obvious. Id. Ultimately, we ruled that the error was indeed plain based on the Guidelines' clearly and obviously having limited a district court's choice to two levels or none. Id. But the Guidelines provision at issue in Brown presented a stronger case for plain...