Argued and Submitted August 26, 2013 Pasadena, California
Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding D.C. No. 3:07-cr-01164-LAB-1
Devin Burstein, Warren & Burstein, San Diego, California, for Defendant-Appellant.
Laura E. Duffy, United States Attorney, Bruce R. Castetter, Chief, Appellate Section, Criminal Division, James P. Melendres (argued), Assistant United States Attorney, San Diego, California, for Plaintiff-Appellee.
Before: Ronald M. Gould and Johnnie B. Rawlinson, Circuit Judges, and Ivan L.R. Lemelle, District Judge. [*]
The panel affirmed in part and vacated in part a criminal judgment, and remanded for resentencing, in a case in which the district court ordered a sentence, imposed upon revocation of supervised release, to run consecutively to an anticipated, but not-yet-imposed, federal sentence in a separate case.
Because the district court may impose a lesser sentence if the case is remanded, the panel rejected the government's argument that the appeal is moot.
The panel held that 18 U.S.C. § 3584 does not permit a federal sentencing court to impose a sentence to run consecutively to another federal sentence that has yet to be imposed, and that the district court is free to consider on remand all issues relevant to sentencing, including the sentence subsequently imposed in the other case.
Reviewing for plain error, the panel rejected the defendant's argument that the district court erred by sentencing him to a term of twenty-four months' incarceration for his violation of supervised release, without crediting the time he served for a prior revocation.
RAWLINSON, Circuit Judge:
Javier Montes-Ruiz appeals the district court's decision to impose its sentence to run consecutively to an anticipated, but not-yet-imposed, federal sentence in a separate case. The United States (Government) counters that the appeal was rendered moot when the second sentencing court independently ordered that its sentence run consecutively to the first sentence. Montes-Ruiz also argues that the district court erred by sentencing him to a term of twenty-four months' incarceration for his violation of supervised release, without crediting the time he served for a prior revocation. We vacate and remand the first sentence imposed to ensure compliance with the provisions of 18 U.S.C. § 3584.
In 2007, Montes-Ruiz pled guilty to attempted entry after a prior deportation in violation of 8 U.S.C. § 1326. His fast-track plea agreement limited supervised release to "not more than three years." During the plea colloquy, the court informed Montes-Ruiz that he would face "up to three years of supervised release, " and that any violation of a release condition could result in "custody for up to the full amount of supervised release term without any credit for time that you may have been in jail or that – the time that you were following the rules up to that point . . . . " The court imposed two special conditions of release: (1) that Montes-Ruiz not violate federal, state, or local law, and (2) that ...