United States Court of Appeals

For the First Circuit 

No. 14-1357 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

JORGE E. MALDONADO-RIOS, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. José Antonio Fusté, U.S. District Judge] 

Before 

Kayatta, Selya, and Barron, 

Circuit Judges. 

Camille Lizarríbar-Buxó and Lizarríbar 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. 

June 15, 2105 
- 2 - 

Per Curiam. 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. 

I. 

In December of 2013, the appellant, Jorge E. MaldonadoRios, 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 
- 3 - 

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 
- 4 - 

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 of the District Court's public docket. 

II. 

Because Maldonado's appeal was pending at the time the 

District Court ruled on his motion to modify the sentence under 

§ 3582(c)(2), we hold that the District Court lacked jurisdiction 

to enter the order reducing the sentence. See United States v. 

Torres-Oliveras, 583 F.3d 37, 44 (1st Cir. 2009) (explaining the 

"general rule that . . . 'a notice of appeal . . . divests the 

district court of its control over those aspects of the case 

involved in the appeal'" (quoting Griggs v. Provident Consumer 

Discount Co., 459 U.S. 56, 58 (1982))); United States v. Distasio, 

820 F.2d 20, 23 (1st Cir. 1987) ("[A] docketed notice of appeal 

suspends the sentencing court's power to modify a defendant's 

sentence."). For while we have not previously held that a district 

court lacks the power to order a sentence modification under 18 

U.S.C. § 3582(c) while an appeal of that sentence is pending, see 

Torres-Oliveras, 583 F.3d at 44, we have held that a district court 
- 5 - 

lacks jurisdiction to do so under Federal Rule of Criminal 

Procedure 35(b), see Distasio, 820 F.2d at 23-24. And we see no 

basis for distinguishing between these two types of modifications 

for jurisdictional purposes. 

Moreover, while we have noted that there are "limited 

exceptions" to the "general rule" that an appeal ends a district 

court's jurisdiction, Torres-Oliveras, 583 F.3d at 44, those 

exceptions relate to district court orders that concern matters 

unrelated to the "substance of the decision" being appealed, 16A 

Charles A. Wright, et al., Federal Practice & Procedure § 3949.1, 

at 59 (4th ed. 2008); see also United States v. Ortega, 859 F.2d 

327, 334-35 (5th Cir. 1988).1 Those exceptions are thus not 

applicable here, given the nature of the District Court's order. 

That the District Court lacked the power to issue the 

March 31 order -- which otherwise would give Maldonado the relief 

he seeks and thus seemingly moot this appeal -- does not mean that 

we must proceed to the merits of the appeal. Instead, Federal 

Rule of Appellate Procedure 12.1 offers us an alternative, and 

 1 Ortega upheld a district court's jurisdiction to modify a 

sentence despite a pending appeal under the then-in-force version 

of Fed. R. Crim. P. 35(a), which allowed courts to "correct an 

illegal sentence at any time." 859 F.2d at 334 n.11 (quoting Fed. 

R. Crim. P. 35(a)). 
- 6 - 

more efficient, means of proceeding. In fact, the Advisory 

Committee Notes to Rule 12.1 expressly anticipate that Rule's use 

for "motions under 18 U.S.C. § 3582(c)" made during the pendency 

of an appeal. Fed. R. App. P. Rule 12.1 advisory committee's note. 

Rule 12.1 states that a district court faced with a 

motion that it "lacks authority to grant because of an appeal that 

has been docketed and is pending" may "state[] either that it would 

grant the motion or that the motion raises a substantial issue." 

Fed. R. App. P. 12.1(a). And, the Rule further provides, the 

movant must then "promptly notify" the Court of Appeals' clerk of 

the district court's ruling. Id. This Court then has the option 

of "remand[ing] for further proceedings but retain[ing] 

jurisdiction," dismissing the appeal, or continuing to hear the 

appeal. Fed. R. App. P. 12.1(b). 

This procedure makes much practical sense. It is both 

the procedure that the District Court -- and the parties -- should 

have followed in this case, and the one that district courts and 

parties should follow in like cases in the future. The Rule 12.1 

procedure ensures that the district court and the appellate court 

are not simultaneously analyzing the same issue. The procedure 

also avoids the confusion that may result if the appellate court 

issues an order inconsistent with the relief that the defendant 
- 7 - 

believes the district court has already provided. And, finally, 

the procedure provides an efficient means of resolving an issue on 

appeal that the district court is willing to render moot. 

Of course, in this case, the District Court did not 

actually issue an indicative ruling. But the District Court could 

hardly have more clearly stated "that it would grant the motion," 

as Rule 12.1 requires, given that the District Court purported to 

grant the requested relief directly. Thus, to facilitate the 

operation of the procedure that Rule 12.1 contemplates, we will 

treat the District Court's March 31, 2015, order as though it were 

an indicative ruling under Rule 12.1. 

Having done so, in accord with the procedure set forth 

in Rule 12.1, we retain jurisdiction and remand this case to the 

District Court. That way it may enter an order modifying 

Maldonado's sentence, as that court has indicated Amendment 782 to 

the sentencing guidelines warrants. Once the District Court enters 

its modification order, the government and the defendant shall 

notify this Court within 14 days as to whether the pending appeal 

may be dismissed. If either party does not believe that the appeal 

should be dismissed, that party shall state its reasons fully in 

its notice to this Court. 

So ordered.