United States Court of Appeals

For the First Circuit

No. 00-1429

No. 00-1513

UNITED STATES OF AMERICA,

Appellee/Cross-Appellant,

v.

GUILLERMO MALDONADO,

Defendant, Appellant/Cross-Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

Before

 Torruella, Chief Judge,

Boudin and Lipez, Circuit Judges.

Mark B. Laroche, by appointment of the court, for defendant.

Donald C. Lockhart, Assistant United States Attorney, with

whom Margaret E. Curran, United States Attorney, and Kenneth P.

Madden, Assistant United States Attorney, were on consolidated

brief for the United States.

February 23, 2001
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BOUDIN, Circuit Judge. The question is whether a

district court may depart downward to save taxpayers the expense

of imprisoning a defendant who is likely to be deported after

completing his sentence. In this instance, Guillermo Maldonado

(who says his real name is Miguel Angel Soto) pled guilty, in

August 1997, to federal charges of possession with intent to

distribute cocaine and heroin. 21 U.S.C. § 841(a)(1)(1994). In

March 1998, Maldonado was sentenced to 210 months in prison, the

minimum prescribed by the Sentencing Guidelines as computed by

the district court.

Maldonado's counsel filed a timely notice of appeal but

did not pursue the appeal, and this court dismissed the appeal

for want of prosecution in July 1998. Maldonado then filed a

section 2255 petition, 28 U.S.C. § 2255 (Supp. II 1996),

alleging ineffectiveness of counsel in allowing the appeal to

lapse; and, with the government's agreement, the district court

granted the petition and ordered resentencing to permit

Maldonado to take a direct appeal. See Bonneau v. United

States, 961 F.2d 17, 23 (1st Cir. 1992). However, the court did

not mechanically impose the same sentence, as it could have

done.
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Instead, on the day of the resentencing hearing (March

20, 2000), Maldonado filed a motion seeking a downward departure

based on evidence of rehabilitation. U.S.S.G. § 5K2.0.

Attached were copies of a high school equivalency diploma and

certificates evidencing completion of a number of courses

Maldonado had taken in 1998 and 1999 while in prison. The

government opposed the downward departure, saying that the

evidence did not show extraordinary post-sentencing

rehabilitation. Maldonado's counsel argued in favor of the

departure, adding that a downward departure might also address

a concern mentioned by the court at the first sentencing,

namely, that taxpayers would be paying for 17 years of

imprisonment.

The district court then sentenced Maldonado to 120

months' imprisonment, a downward departure of 90 months,

stating:

What troubles me about these cases is that

210 months in federal prison for someone

who's going to be deported is a waste of

taxpayer money, some $20,000 a year just to

keep him in federal prison. Recently, I

have been departing downward when the

sentence of a deportable felon is in the

higher ranges because of the concern I have

for the taxpayers paying for someone in a

federal prison when that person will be

deported. Obviously the defendant has been

doing some things to help himself while he's

in prison, and that's commendable. But the

real reason I'm going to depart downward
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here is because I don't want the taxpayers

to pay for him unnecessarily.

Maldonado now appeals, arguing that the guideline

calculation originally adopted by the district court (and

effectively reaffirmed on resentencing) was mistaken in several

respects, and that Maldonado's guilty plea was defective. The

government cross-appeals, arguing that the district court had no

authority to consider a downward departure after the

resentencing and, in any event, erred in granting the departure

on the basis of expense to the taxpayer.

We start with the government's appeal. Its first claim

is that the district court had no right after granting the

section 2255 motion to do anything more than to reimpose the

original sentence. The government is correct that reimposing

the original sentence without more would remedy the assumed

constitutional defect, so the district court could have declined

to reexamine the sentence. See United States v. Torres-Otero,

232 F.3d 24, 30-31 (1st Cir. 2000). The more difficult question

is whether, as the government now urges, the district court was

forbidden from sentencing the defendant afresh and imposing a

different sentence.

The government first argues that the plain language of

section 2255 requires that the "error" to which the petition is

addressed must fit in one of the pigeonholes in the first
1Namely, that the sentence was unlawful or the court was

without jurisdiction to impose it, or "that the sentence was in

excess of the maximum authorized by law, or is otherwise subject

to collateral attack . . . ." 28 U.S.C. § 2255.

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sentence of section 2255.1 Perhaps so; but if this is the case,

the petition--which the government agreed should be granted--can

be taken to claim that the sentence was "otherwise subject to

collateral attack" because the negligence of counsel thwarted an

appeal from the original conviction. Cf. Bonneau, 961 F.2d at

23. On this premise, section 2255 gave the district court power

"to vacate, set aside or correct the sentence." 28 U.S.C. §

2255.

Nothing in the statute's language resolves the question

whether the district court in such a situation is precluded from

calculating the proper sentence anew. The choice resembles that

presented where, on direct appeal, a court of appeals sets aside

a sentence for some defect in the calculation but neither

explicitly nor implicitly limits the district court in the scope

of its resentencing. Once again, the district court is not

ordinarily required to go beyond correcting the error identified

by the court of appeals, e.g., United States v. RiveraMaldonado, 124 F. Supp. 2d 788, 791 (D.P.R. 2000), but that does

not answer the question whether it may do so if it wishes.
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In both situations, it is a windfall to a defendant if

in resentencing the district court goes beyond correction of the

original error and gives the defendant a lower sentence by

virtue of a new calculation on an unrelated aspect of the

sentence. The tension is between an idiosyncratic benefit for

one defendant not available to others and a desire to sentence

properly even if this involves giving the lucky defendant a

break. Since circumstances vary, one might well think that this

is a choice that should be left to the district judge unless

Congress or an appellate court directs otherwise. Cf. TorresOtero, 232 F.2d at 30; United States v. Rodriguez, 112 F.3d 26,

29 (1st Cir.), cert. denied, 522 U.S. 895 (1997).

The government points out that there are severe

restrictions on the district court's right to revisit a sentence

previously imposed. See 18 U.S.C. § 3582(c) (1994 & Supp. II

1996) (retroactive application of guideline changes limited);

Fed. R. Crim. P. 35 (seven-day limit on correction errors; oneyear limit on substantial assistance reductions). This is quite

true where a sentence has become final; but we are concerned

with a resentencing where the original sentence was invalidated.

The issue here is not whether there will be a resentencing--

section 2255 permits it, as does a remand, see Fed. R. Crim. P.

35(a)--but rather of its permissible scope.
2In two cases, somewhat surprisingly, the Second Circuit has

required resentencing de novo. United States v. Harris, 209

F.3d 156, 162-63 (2d Cir. 2000); Soto v. United States, 185 F.3d

48, 54 (2d Cir. 1999).

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The government suggests that existing precedent

prohibits de novo resentencing, but we read the authorities

differently. The more common case--that of a remand for

resentencing after an appeal--is handled variously in different

circuits. In some, it appears the district judge may go beyond

correcting the error but is not required to do so. E.g., United

States v. Whren, 111 F.3d 956, 958-60 (D.C. Cir. 1997), cert.

denied, 522 U.S. 1119 (1998).2 But it is hard to find an appeals

court forbidding de novo resentencing, unless the mandate has

affirmatively restricted the remand, e.g., United States v.

Parker, 101 F.3d 527, 528 (7th Cir. 1996); cf. Fed. R. Crim. P.

35(a)(1).

Criminal procedure, like the rest of life, is filled

with situations in which fortuities work to the benefit or

disadvantage of a prosecutor or defendant. For example, where

a retrial is ordered because of some mistake in the

instructions, witnesses may have died in the interval or new

ones been discovered, so that the evidence at the new trial is

quite different, sometimes favoring the prosecution and

sometimes the defense. Section 2255 being silent, it seems to
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us that the best approach is to retain some flexibility. See

United States v. Handa, 122 F.3d 690, 691 (9th Cir. 1997), cert.

denied, 522 U.S. 1083 (1998).

Although the district court was thus free to consider

a downward departure for any legitimate reason, we think that it

erred in granting a departure on the grounds given. The court

said that it was "a waste of taxpayer money" to impose a lengthy

prison term on "someone who's going to be deported." The court

did not say why, perhaps deeming it to be obvious. It is not;

there are several possibilities, and the most likely turn out to

depend very much on particular circumstances.

One rationale is that deportation is additional

punishment added on to the term of imprisonment. If so, one

might think that adequate deterrence of drug crimes by aliens,

where deportation is quite likely, is provided by threatening

aliens with a shorter sentence. The argument assumes, however,

that the alien knows before committing the crime that

deportation will follow if he is caught and convicted and,

further, that he knows that deportation will be highly

disadvantageous to him. One might expect these factors to vary

from case to case, and the absence of either defeats the

argument.
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Alternatively, and perhaps more likely, the district

court may have been assuming that deportation would at least

protect the public against future crimes by the defendant after

his shortened term of imprisonment. But even if the interest of

foreign citizens is disregarded, the premise that the deported

alien is gone for good is somewhat doubtful. American borders

remain fairly porous. There are already many prosecutions for

illegal reentry after deportation, e.g., United States v. LunaDiaz, 222 F.3d 1, 2 (1st Cir. 2000), and, even more troubling,

for criminal acts committed after illegal entry following

deportation, e.g., United States v. Cuevas, 75 F.3d 778, 779

(1st Cir. 1996). 

Strictly speaking, nothing in the guidelines addresses-

-let alone forbids--consideration of the general approach taken

by the district court or shows that the Sentencing Commission

considered and rejected it. Cf. United States v. AlvarezCardenas, 902 F.2d 734, 737 (9th Cir. 1990). In fact, in

"extraordinary" cases, the guidelines themselves indicate that

expense may be considered, U.S.S.G. § 5H1.1 ("elderly and

infirm"); id. § 5H1.4 ("extraordinary physical impairment"); and

while hedging the matter, some courts have said that
3See, e.g., United States v. Tejeda, 146 F.3d 84, 88 (2d

Cir. 1998) (per curiam); United States v. Farouil, 124 F.3d 838,

847 (7th Cir. 1997) (cited with approval in United States v.

DeBeir, 186 F.3d 561, 569 (4th Cir. 1999)); United States

v. Restrepo, 999 F.2d 640, 644 (2d Cir.), cert. denied, 510 U.S.

954 (1993); cf. also United States v. Smith, 27 F.3d 649, 655

(D.C. Cir. 1994). 

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deportability might, in some situations and for varying reasons,

be pertinent to a decision to depart.3

This juxtaposition of the "general" with the

"extraordinary" is the key to our own problem. Although the

Commission did not proscribe the district court's approach

("[r]ecently, I have been departing downward when . . ."), it

obviously knew that deportable aliens commit crimes, that drug

sentences are lengthy and that prisons are expensive. It is

thus hard to avoid treating the Commission's failure to provide

a discount as equivalent to rejecting a discount as a matter of

course. Cf. United States v. Clase-Espinal, 115 F.3d 1054,

1057-59 (1st Cir.), cert. denied, 522 U.S. 957 (1997).

In short, a deportable alien who commits a crime is

still within the "heartland" of the guidelines, absent something

more. See United States v. Garay, 235 F.3d 230, 233-34 (5th

Cir. 2000); United States v. Farouil, 124 F.3d 838, 847 (7th

Cir. 1997). If deportability, expense, or some combination of

the two justifies a departure, it would have to be based on

case-specific findings that made the case unusual. Cf. United
4Accord United States v. Rudolph, 190 F.3d 720, 723 (6th

Cir. 1999); United States v. Green, 152 F.3d 1202, 1207 (9th

Cir. 1998); United States v. Rhodes, 145 F.3d 1375, 1379 (D.C.

Cir. 1998); United States v. Sally, 116 F.3d 76, 80 (3d Cir.

1997); United States v. Core, 125 F.3d 74, 75 (2d Cir. 1997),

cert. denied, 522 U.S. 1067 (1998). But see United States v.

Sims, 174 F.3d 911, 912-13 (8th Cir. 1999); Rhodes, 145 F.3d at

1384 (Silberman, J., dissenting).

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States v. Wong, 127 F.3d 725, 728 (8th Cir. 1997). Under Koons

v. United States, 518 U.S. 81, 96 (1996), the Sentencing

Commission's silence might give the district court latitude in

the extraordinary case; but the common facts of a long sentence

and likely deportation are not by themselves extraordinary.

Accord United States v. Tejeda, 146 F.3d 84, 88 (2d Cir. 1998)

(per curiam). And that is all that was present here.

Because the departure was impermissible, we must remand

for resentencing. The district judge did not formally rule on

Maldonado's original request for a downward departure based on

post-sentence rehabilitation. In the past, this circuit and

others have held that a district court may depart downward in

resentencing because of extraordinary circumstances reflecting

rehabilitation after an earlier (now vacated) sentence for the

same crime. See United States v. Bradstreet, 207 F.3d 76, 78

(1st Cir. 2000).4

The Commission has recently precluded this practice

precisely because it does give previously sentenced prisoners a
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windfall. U.S.S.G. § 5K2.19 (Appendix X, amendment 602,

effective November 1, 2000). This is a judgment that the

Commission is entitled to make, but we ordinarily employ the

guidelines in effect at sentencing only where they are as

lenient as those in effect at the time of the offense; when the

guidelines have been made more severe in the interim, the

version in effect at the time of the crime is normally used, as

a matter of policy and to avoid any hint of ex post facto

increase in penalty. See United States v. Harotunian, 920 F.2d

1040, 1041-42 (1st Cir. 1990).

Here, the Commission's's more recent change does not

persuade us that we erred in our original decision, Bradstreet,

207 F.3d at 78--to allow departures for extraordinary postsentence rehabilitation--but only that the guidelines have been

changed prospectively. Thus, on remand, Maldonado may argue to

the district judge that such a departure is justified. It is

far from clear that anything urged by Maldonado constituted

extraordinary circumstances; but we decline to anticipate the

issue since it has not been briefed by either side and may never

be presented to us.

Finally, Maldonado says that his original guilty plea

was rendered ineffective by defects in the colloquy and that his

original guideline sentence was miscomputed. As to the guilty
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plea, there was no effort before or at either of the sentencings

to withdraw the plea, which means that review even on direct

appeal is limited to plain error, United States v. GandiaMaysonet, 227 F.3d 1, 5 (1st Cir. 2000). The gist of the claim

of error, which is not well developed, concerns the government's

charge that Maldonado possessed heroin that was found in a car

in a rolled up T-shirt.

At the plea colloquy, the government proffered that a

police officer had seen Maldonado place the T-shirt in the car

and shortly after the police stopped the car, discovered two

packages of heroin in the T-shirt. When these facts were

adduced at the plea hearing, Maldonado agreed with this summary

of evidence, objecting only to the characterization of cocaine

later found in his apartment as crack. Although counsel says

that the court should have explained the alleged facts further

because they were filtered through an interpreter, there is no

indication that they were inadequately explained or that

Maldonado misunderstood.

Maldonado also objects to the sentencing calculations

on several grounds: to the inclusion of the drugs found in the

T-shirt, to treating as crack cocaine some of the drugs later

found in his apartment, to the addition of two levels for

obstruction of justice for giving a false name to the Probation
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Department and lying to the court, U.S.S.G. § 3C1.1, and to the

failure to give Maldonado a two-level reduction for acceptance

of responsibility, id. § 3E1.1(a). The government's able brief

refutes each of these claims in detail.

The sentence is vacated and the matter remanded to the

district court for resentencing in accordance with this opinion.

It is so ordered.