First Circuit Announces It Has Authority to Raise Claim of Error Sua Sponte for Violation of ‘Mandate Rule’ by Sentenc-ing Court on Remand
by Richard Resch
In a case of first impression, the U.S. Court of Appeals for the First Circuit held that it may raise sua sponte on appeal a claim of error not timely raised by the defendant where there was “a violation of the mandate rule.” The Court further held that the U.S. District Court for the District of Puerto Rico’s use, upon resentencing on remand, of convictions and sentences that took place after the defendant’s original sentencing to increase his Guidelines sentencing range constituted plain error.
José Xavier Cheveres-Morales was indicted in February 2017 by a federal grand jury sitting in the District of Puerto Rico in a superseding indictment. It charged Cheveres-Morales with one count of attempted carjacking; one count of carjacking; and two counts of using, carrying, and brandishing a firearm during and in relation to a crime of violence. Pursuant to a plea agreement, one firearm count was dismissed, and the District Court accepted Cheveres-Morales’ guilty plea to the other three counts. A presentence investigation report (“PSI Report”) was completed. It cited two arrests and no other criminal history.
At sentencing, the District Court noted the two arrests and a pending case in a Puerto Rico court involving two aggravated robberies and two firearm violations. The District Court declared that Cheveres-Morales had “shown a pattern of committing the same type of violent crime for which he had been arrested several times,” which supported an upward variance. The District Court imposed concurrent 87-month sentences on each carjacking count and a consecutive sentence of 108 months on the firearm count.
Cheveres-Morales timely appealed. The Government filed an unopposed motion to remand to the District Court for resentencing. It conceded error when the sentencing court “considered the mere fact that [the defendant] had prior arrests in order to impose an upward[ly] variant sentence” and when it “considered alleged pending state charges which were never included in the [PSI Report] … or any motions.” The First Circuit granted the motion with an unpublished order.
By the time of the remand, Puerto Rico had prevailed in reversing dismissal of six counts related to Cheveres-Morales’ 2017 arrest, resulting in convictions and sentences in a Puerto Rico court. The second PSI Report cited the two prior arrests but assessed no points. However, it added three points on the criminal history score for the six convictions, elevating Cheveres-Morales to a level II range of 70 to 87 months’ imprisonment on the carjacking counts.
While both parties sought a new sentence at the lower range of the Sentencing Guidelines, the District Court relied upon the arrest history and the new convictions to support an upward variance. It imposed concurrent sentences of 132 months’ imprisonment on the carjacking counts and 108 months’ imprisonment on the firearm counts. Cheveres-Morales did not object to the court’s use of the intervening, post-sentencing convictions and sentences to increase the Guidelines sentencing range. Again, Cheveres-Morales timely appealed.
He asserted two claims for relief. First, he argued the District Court erred by repeating “its earlier mistake by again considering arrests that had not resulted in conviction.” The second argument contended that the District Court imposed a substantively unreasonable sentence. He did not, however, challenge the resentencing court’s use of intervening, post-sentencing convictions and sentences to increase his Guidelines sentencing range.
Sua Sponte Claim of Error
The Court ordered briefing on that issue. It began its analysis by observing that this was an issue of first impression, that is: whether an appellate tribunal “may consider sua sponte a claim of error that was not raised by the defendant either in the court below or in his opening brief in this court.” The Court ruled that because the “claim of error involves a violation of the mandate rule,” it may consider the claim.
The Court noted that ordinarily a party waives a claim of error when it fails to raise it in the court below. See Teamsters Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17 (1st Cir. 1992). Likewise, a party waives a claim of error by not raising it in the opening brief on appeal. See Sandstrom v. ChemLawn Corp., 904 F.2d 83 (1st Cir. 1990). But waiver is excused “under exceptional circumstances … to forestall a miscarriage of justice.” Sindi v. El-Moslimany, 896 F.3d 1 (2018). In determining whether to invoke the exception, the First Circuit evaluates the equities in the case. See Sindi (listing factors that may be “given substantial weight” in the analysis).
The Court then observed that the circumstances of the current case are unusual because the claimed error involves the Court’s previous mandate, and it is the Court itself, not a party, that seeks to raise it sua sponte. The issue is whether the Court may do so. Although this is an issue of first impression in the First Circuit, the Court noted that the First Circuit has stated in dictum that “a court may raise law of the case issues sua sponte.” United States v. Matthews, 643 F.3d 9 (1st Cir. 2011). Additionally, other circuits that have addressed the issue have concluded that the appellate court may do so. See United States v. Anderson, 772 F.3d 662 (11th Cir. 2014) (holding that “the law-of-the-case doctrine may be raised by the court sua sponte”); Maxfield v. Cintas Corp., No. 2, 487 F.3d 1132 (8th Cir. 2007) (same); see also DiLaura v. Power Auth. of State of N.Y., 982 F.2d 73 (2d Cir. 1992) (raising law of the case issue sua sponte).
The law of the case doctrine holds that when a court determines a rule of law, that determination governs the same issues in subsequent stages of the same case. Arizona v. California, 460 U.S. 605 (1983). There are two branches of the doctrine. See United States v. Genao-Sanchez, 525 F.3d 67 (1st Cir. 2008). The branch at issue in the present case is the mandate rule, which “prevents relitigation in the trial court of matters that were explicitly or implicitly decided by an earlier appellate decision in the same case.” United States v. Moran, 393 F.3d 1 (1st Cir. 2004). That is, the mandate rule “requires that the trial court conform with the direction of the appellate court on remand.” United States v. Davila-Felix, 763 F.3 105 (1st Cir. 2014). The Court explained that because the “mandate rule is embedded within the law of the case doctrine, it follows that [the Court] may raise an abridgement of the mandate rule sua sponte.”
To determine the scope of a remand, the District Court must “consider carefully ‘both the letter and the spirit of the mandate, taking into account the appellate court’s opinion and the circumstances it embraces.’” Davila-Felix. The Court stated that its remand order “was designed to clear the decks by throwing overboard the arrests on which the sentencing court had erroneously relied.” The record “makes plain that the district court did not conform its resentencing to the limitations of the remand. Instead, the court doubled down on its error by using a prior arrest (which by then had ripened into two convictions and sentences) to jack up the defendant’s criminal history score and inflate his guideline sentencing range. This freewheeling approach violated the mandate rule,” according to the Court.
While Cheveres-Morales reasonably “anticipated a reduced sentence … the remand—as implemented by the resentencing court—proved to be a killing ground, not only dashing the defendant’s hopes for a reduced sentence but also saddling him with a substantially greater term of imprisonment,” the Court stated.
Plain Error Standard of Review
The Court explained that simply because it may review the claim of error sua sponte—that is, it is cognizable—does not automatically mean that the claim of error “carries the day.” Because the claim of error was not raised below, the Court proceeded under a plain error standard of review. See United States v. Duarte, 246 F.3d 56 (1st Cir. 2001). Although the plain error standard is “rigorous,” it is “not insurmountable.” United States v. Ortiz, 741 F.3d 288 (1st Cir. 2014). To prevail under plain error review, the defendant must make “four showings: (1) that an error occurred (2) which was clear or obvious and which not only (3) affected the [defendant’s] substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” Duarte.
The Court had no difficulty concluding that Cheveres-Morales satisfied his burden. First, the District Court erred by using intervening, post-sentencing convictions and sentences to increase his criminal history score and thus boost his Guidelines sentencing range.
Second, the Court explained that in calculating a defendant’s criminal history score, the sentencing court is required to assess criminal history points for sentences that qualify as a “prior sentence.” See U.S.S.G. § 4A1.1. A “prior sentence” means “a sentence which is prior to the original sentence which was vacated and remanded only for resentencing.” United States v. Ticchiarelli, 171 F.3d 24 (1st Cir. 1999). The District Court violated Ticchiarelli by counting the intervening, post-sentencing sentences as “prior sentences,” which inappropriately added three points to Cheveres-Morales’ criminal history score, the Court explained. The District Court’s error was “contrary to existing law.” United States v. Rabb, 5 F.4th 95 (1st Cir. 2021). Thus, the Court concluded that the error was “clear and obvious.”
Third, the Court determined that the error undoubtedly affected Cheveres-Morales’ substantial rights because the inappropriately increased Guidelines sentencing range served as the initial benchmark in the sentencing proceeding. Gall v. United States, 552 U.S. 38 (2007). A sentencing court that relies upon an erroneously high Guidelines sentencing range infringes upon the defendant’s substantial rights. See Molina-Martinez v. United States, 578 U.S. 189 (2016).
Finally, the Court stated that the error satisfied the fourth part of the plain error standard. The Government previously asked the Court to vacate the Cheveres-Morales’ sentence due to errors made by the sentencing court during the first sentencing, and Cheveres-Morales did not object reasonably believing that rectifying the error would result in a more lenient sentence. But that turned out not to be the case because the sentencing court “doubled down” on its error and imposed an even harsher sentence. The Court chided: “Sandbagging is not in fashion in this circuit. Given that the government and the resentencing court converted what was meant to be a path toward a reduced sentence into a costly trap for an unwary defendant, letting that outcome stand would put the judicial system in a poor light.” Thus, the Court held Cheveres-Morales satisfied his burden under the plain error standard of review.
Accordingly, the Court vacated Cheveres-Morales’ sentence and remanded for resentencing consistent with the Court’s opinion. See: United States v. Cheveres-Morales, 83 F.4th 34 (1st Cir. 2023).
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