FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Daniel R. Domínguez, U.S. District
Ramos-Grateroles for appellant.
Michael A. Rotker, Attorney, U.S. Department of Justice, with
whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, John P. Cronan, Acting Assistant Attorney General,
Criminal Division, and Normary Figueroa-Ruiz, Assistant
United States Attorney, were on brief, for appellee.
Torruella, Lipez, and Barron, Circuit Judges.
Jose Luis Lopez-Pastrana, who was sentenced on drug and
firearms charges pursuant to a plea agreement, claims that
the district court erred by ordering a twelve-month term of
home detention on the drug count to be served after his
mandatory minimum five-year term of imprisonment on the
firearms count. We agree that the home-detention condition
was imposed improperly and, accordingly, remand the case for
resentencing. We do not reach appellant's pro se
appellate claims, as they are either waived or not properly
was charged in a four-count indictment with two drug crimes
and two weapons crimes. He entered into a plea agreement in
which he agreed to plead guilty to Count III, possession with
intent to distribute marijuana, and Count IV, possession of a
firearm in furtherance of a drug trafficking crime, in
exchange for dismissal of the remaining two counts. The plea
agreement set forth the parties' non-binding
recommendation that the court impose a sentence at the lower
end of the Guidelines range of zero to six months'
imprisonment for Count III, and a sixty-month sentence (the
mandatory minimum) for Count IV. As part of the agreement,
Lopez-Pastrana waived the right to appeal the judgment and
sentence if the sentence imposed was consistent with the
outset of the sentencing hearing in July 2015, the district
court commented on the portion of Lopez-Pastrana's
sentencing memorandum stating that he has a severe pulmonary
illness and a limited life expectancy. Defense counsel
reaffirmed the memorandum's assertion that
Lopez-Pastrana, who was fifty-nine at the time of sentencing,
had a twenty percent chance of surviving the next four years.
The government responded that Lopez-Pastrana's health had
improved during the roughly four months that he had been
incarcerated. The prosecutor reported that the medical
director of the correctional facility where appellant was
housed had concluded that "his medical condition is not
an end-stage disease."
the undisputed fact that Lopez-Pastrana faced a sixty-month
mandatory sentence on the firearms count, defense counsel
explained that he had brought up appellant's limited life
span for two reasons. First, counsel asked the court to
recommend that Lopez-Pastrana serve his time in a prison
medical facility. Second, counsel urged the court to support
any recommendation made by the Bureau of Prisons for
compassionate release based on appellant's health.
See infra note 7 (discussing 18 U.S.C. §
3582(c)(1)(A)). The court acknowledged the requests, assuring
counsel he would order appellant's placement in a
clinical facility, and continued with the sentencing process.
Count III, the drug offense, the court calculated the
Sentencing Guidelines punishment to be imprisonment from zero
to six months, a fine of $250 to $5, 000, and a two-year term
of supervised release. For Count IV, the firearms offense, the
court observed that the Guidelines sentence is the statutory
minimum --sixty months -- to be followed by a supervised
release period of two to five years. After noting that it had
considered the sentencing factors prescribed by 18 U.S.C.
§ 3553 -- including, "above all, "
Lopez-Pastrana's medical condition -- the court
announced, as to Count III, that it would "perform . . .
a variance as to him and . . . sentence him for the drug at
zero months." On Count IV, the court explained that it
was imposing the statutory minimum "due to his medical
history." The court specified that, as required by
statute, "[b]oth sentences shall be served consecutively
to each other for a total of 60 months of imprisonment."
court also imposed a two-year term of supervised release on
Count III and a five-year term of supervised release on Count
IV, to be served concurrently. It then announced the
conditions of release, including a twelve-month period of
home confinement that would be monitored with an electronic
device. The court declined to impose fines, but ordered the
mandatory monetary assessment of $100 on each count.
pronouncing the sentence and terms of release, the court
noted that Lopez-Pastrana's waiver of his right to appeal
was triggered "because this Court has sentenced the
defendant below what he agreed -- not what he agreed, but
below what he agreed." The court concluded its
pronouncements by directing that Lopez-Pastrana "be
placed in a clinical medical facility, a hospital-type
facility, due to his Chronic Obstructive Pulmonary
Disease" and instructing the Bureau of Prisons to ensure
a medical evaluation and "proper medication for the
pulmonary obstructive emphysema disease."
government then moved to dismiss the other two counts and --
"just to clarify the record" -- pointed out that
the zero months' sentence was not a variance, but fell at
the lower end of the applicable guidelines range. The court
accepted the correction and invited defense counsel to raise
any objections to the conditions of supervised release.
point, a colloquy ensued between the court and defense
counsel concerning the twelve-month period of home detention.
Counsel objected to the substantial restraint that the
monitoring device would pose for his seriously ill client
after his release from prison, pointing out that
appellant's activities would in any event be limited for
five years by the requirements of supervised release. For its
part, the court observed that it had anticipated that
Lopez-Pastrana might "applaud this condition"
because he would be able to obtain medical treatment at the
government's expense during the home detention.
exchange between court and counsel included the following:
COURT: [T]his is what I thought would be a negotiation to
going to zero [months]. . . . So you are saying that most
probably he will not live this sentence. Fine.
. . . .
[T]his is the reason why the Court gave him no sentence as to
a drug conviction. Zero. But I thought that if he lived, that
he should be in his house in home detention, as an alternate
sentence to the zero. There are many defendants that would
break my arm for that.
DEFENSE COUNSEL: I understand, Your Honor.
COURT: You know, it's easier to serve it in your house
with all the monitoring medical equipment that is going to be
placed in ...