APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. José Antonio Fusté, U.S. District Judge.
Camille Lizarrí bar-Buxó and Lizarrí bar Law Office, on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, on brief for appellee.
Before Kayatta, Selya, and Barron, Circuit Judges.
This appeal requires us to make clear the procedure that a district court should follow when a defendant moves to modify a sentence during the pendency of an appeal of that sentence. As we explain, in a case like this, that procedure is set forth in Federal Rule of Appellate Procedure 12.1, which provides for the use of an indicative ruling by the district court in such circumstance. Here, however, lacking any direct guidance from this Court as to the procedure it should follow, the District Court did not issue an indicative ruling but instead simply issued a modification order. We hold that the District Court lacked jurisdiction to issue that order while this appeal was pending. We thus remand the case in accordance with the procedure that Rule 12.1 sets forth so that the District Court may enter the modification order.
In December of 2013, the appellant, Jorge E. Maldonado-Rios, pled guilty to possession with intent to distribute more than five kilograms of cocaine. That offense carries a statutory minimum sentence of 120 months' imprisonment. See 21 U.S.C. § 841(b)(1)(A)(ii). At the time of Maldonado's sentencing, the sentencing guidelines recommended a higher sentence, of 135 to 168 months. Consistent with those guidelines, the District Court imposed a sentence of 135 months. Maldonado then appealed. He argued that the District Court had committed procedural error by inadequately explaining its reasons for choosing a 135-month sentence rather than the 120-month mandatory minimum.
While Maldonado's appeal was pending, the U.S. Sentencing Commission passed Amendment 782 to the sentencing guidelines. See United States Sentencing Commission, Guidelines Manual, App. C Supp., Amendment 782 (Nov. 1, 2014). That amendment lowered by two levels the " base offense level" -- the baseline from which recommended sentencing ranges are calculated under the guidelines -- for most drug offenses. See id. The Sentencing Commission made that amendment retroactive. See U.S.S.G. § 1B1.10(d).
As a result, in November of 2014, Maldonado moved to have the District Court modify his sentence under 18 U.S.C. § 3582(c)(2). That statute allows a district court to reduce a defendant's sentence that was " based on a sentencing range that has subsequently been lowered by the Sentencing Commission" in a retroactive amendment. 18 U.S.C. § 3582(c)(2). Several months later, on February 25, 2015, the government informed the District
Court that it agreed that Maldonado's sentence should be reduced to the 120-month mandatory minimum in consequence of Amendment 782. And then, on March 31, 2015, the District Court issued an order that purported to reduce Maldonado's sentence to the 120-month minimum, even though this appeal was still pending.
Neither Maldonado nor the government informed this Court of those developments in the District Court. We became aware of them only from a review ...