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United States v. Lopez-Pastrana

United States Court of Appeals, First Circuit

May 4, 2018

UNITED STATES OF AMERICA, Appellee,
v.
JOSE LUIS LOPEZ-PASTRANA, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Daniel R. Domínguez, U.S. District Judge]

          Miriam 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.

          Before Torruella, Lipez, and Barron, Circuit Judges.

          LIPEZ, Circuit Judge.

         Appellant 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 before us.

         I.

         Lopez-Pastrana 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 parties' recommendation.[1]

         At 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."

         Noting 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.

         For 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.[2] 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."

         The 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.

         After 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."

         The 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.

         At that 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.

         The 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 ...

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