NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No: 15-2326

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UNITED STATES OF AMERICA

v. 

JOSEPH RAGNOLI,

Appellant

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Appeal from the United States District Court

for the Eastern District of Pennsylvania

(Crim. No. 2-05-cr-00375-3)

District Judge: The Honorable Juan R. Sánchez

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Submitted Under Third Circuit LAR 34.1(a)

April 5, 2016

Before: AMBRO and KRAUSE, Circuit Judges, and THOMPSON,* District Judge 

(Opinion Filed: April 15, 2016)

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OPINION **

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THOMPSON, District Judge.

 

* The Honorable Anne E. Thompson, District Judge for the United States District Court 

for the District of New Jersey, sitting by designation.

** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
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Joseph Ragnoli (“Ragnoli”) appeals the May 7, 2015 letter communication of the 

United States District Court for the Eastern District of Pennsylvania stating that Ragnoli’s 

60-month term of confinement is to run consecutive to his state court term of 

imprisonment. For the reasons that follow, we conclude that we lack jurisdiction to 

consider Ragnoli’s appeal.

I. BACKGROUND

On April 29, 2005, law enforcement agents searched Ragnoli’s home pursuant to a 

search warrant and found over two kilograms of methamphetamine. On August 12, 2005, 

Ragnoli pled guilty to one count of possession of methamphetamine with intent to 

distribute, and one count of conspiracy to distribute methamphetamine. The District 

Court sentenced him to 84 months’ imprisonment and 10 years of supervised release. 

After serving his term of imprisonment, Ragnoli was released and began serving his term 

of supervised release on January 26, 2011.

Three months later, the Pennsylvania State Police learned Ragnoli was engaging in 

multiple methamphetamine transactions via wiretaps that were part of a larger 

methamphetamine trafficking investigation. Ragnoli was arrested on November 27, 

2012. On January 30, 2013, Ragnoli and 27 other individuals were charged with multiple 

offenses related to the distribution of methamphetamine.

On April 25, 2013, while Ragnoli was in state custody on his pending state 

charges, he was brought before the District Court pursuant to a writ of habeas corpus ad 

prosequendum for violating his supervised release. Ragnoli stipulated that he had 

violated his supervised release and was sentenced to the maximum statutory penalty of 60 
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months’ imprisonment. The Court did not specify if the 60-month term was to run 

consecutively or concurrently with the sentence that would be imposed in Ragnoli’s 

pending state case, nor did Ragnoli’s counsel raise the issue. Ragnoli did not appeal the 

District Court’s judgment. He was immediately returned to state custody, and the federal 

judgment was filed as a detainer.

On May 30, 2013, Ragnoli pled guilty to two of his pending state charges. He was 

sentenced to 24 to 48 months’ incarceration, which the State Court ordered “to be served 

concurrent and coterminous to the Federal Sentence he is currently serving.” App. 73. 

Ragnoli served his state sentence, and was released to federal custody on December 3, 

2014.

In a letter dated March 26, 2015, Jose A. Santana, the Bureau of Prisons (“BOP”) 

Regional Inmate Systems Administrator, sent a letter to the District Court regarding 

Ragnoli. App. 79. The letter explained that Ragnoli had requested that the BOP run his 

federal sentence concurrently with his state sentence. The BOP could accomplish this by 

retroactively designating the state prison as the institution for service of Ragnoli’s federal 

sentence. This retroactive designation would reduce the total amount of time Ragnoli 

spent in custody, as the State Court had ordered. The letter indicated that it is the BOP’s 

“preference” to obtain the federal sentencing court’s position on any such retroactive 

designations, but that the BOP would make its own decision if it had not heard back from 

the District Court within 60 days. If the District Court stated its position within 60 days, 

the BOP would designate Ragnoli’s place of imprisonment according to the District 

Court’s position.
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On May 7, 2015, the District Court held a conference call with counsel for the 

government, Ragnoli’s counsel, and a probation officer. Ragnoli was not present on the 

call, and no one objected to his absence. Later that day, the District Court issued a letter 

that read:

Joseph Ragnoli’s sentence by this Court on April 25, 2013, to a 60-month 

term of confinement for violation of his supervised release is to run 

consecutive with his state term of imprisonment. See U.S.S.G. § 7B1.3, 

comment. Nn. 3, 4.

App. 58. Once Ragnoli learned of the District Court’s letter, he filed an appeal, which is 

presently before us.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had subject matter jurisdiction over Ragnoli’s sentencing 

pursuant to 18 § U.S.C. 3231. We exercise plenary review over the question of whether 

we have jurisdiction to consider Ragnoli’s appeal. In re Blatstein, 192 F.3d 88, 94 (3d 

Cir. 1999). 

III. DISCUSSION

Ragnoli contends that the District Court’s May 7, 2015 letter impermissibly 

modified his sentence outside of his presence. See Fed. R. Crim. P. 35 (permitting 

sentencing courts to modify sentences under specific circumstances not present in this 

case); Fed. R. Crim. P. 43(a)(3) (requiring defendant’s presence at sentencing). The 

government argues that the May 7, 2015 letter was not a court order, but merely an 

advisory letter to the BOP, and therefore cannot form the basis for an appeal before this 

Court. The government does not argue that Ragnoli’s appeal of the letter was untimely; 
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therefore this issue is waived. United States v. Muhammud, 701 F.3d 109, 111 (3d Cir. 

2012) (stating that the time limits under Fed. R. App. P. 4(b) are waived if the 

government does not invoke them). 

Ragnoli’s arguments depend upon a finding that the May 7, 2015 letter was an 

appealable court order. However, when the District Court wrote the letter, it lacked the 

authority to issue an order modifying Ragnoli’s sentence. Dillon v. United States, 560 

U.S. 817, 819 (2010) (observing that federal courts generally are not able to modify 

sentences at a later date); 18 U.S.C. § 3582(c) (listing the exceptional circumstances

when a court may modify a sentence at a later date, none of which are applicable here). 

In May 2015, approximately two years after the District Court had sentenced Ragnoli, 

only the BOP had the authority to credit Ragnoli for his time in state custody by

retroactively designating his state institution for service of his federal sentence.1 See 

Barden v. Keohane, 921 F.2d 476, 478 (3d Cir. 1990); 18 U.S.C § 3621(b) (granting the 

BOP authority to “designate the place of the prisoner’s imprisonment.”). 

Since the District Court had no authority to modify its earlier sentencing order, 

and the BOP had independent authority to decide whether to credit Ragnoli for his time 

in state custody, the District Court’s letter was only a non-binding recommendation to the

BOP, not an appealable order. This reasoning is in accord with our own case law, and the 

law of multiple other circuits. United States v. Serafini, 233 F.3d 758, 778 (3d Cir. 2000) 

(holding that the portion of a district court’s order that included a specific place of 

 

1 The District Court could have ordered Ragnoli’s sentence to run consecutively or 

concurrently with his anticipated state sentence at Ragnoli’s 2013 sentencing hearing. 

Setser v. United States, 132 S. Ct. 1463, 1468 (2012).
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imprisonment was only a non-binding recommendation to the BOP, and therefore not 

appealable); United States v. Ceballos, 671 F.3d 852, 856 (9th Cir. 2011) (holding that 

district courts’ non-binding recommendations to the BOP are not appealable); United 

States v. Kerr, 472 F.3d 517, 520 (8th Cir. 2006) (holding that a “non-binding 

recommendation to the BOP is not reviewable as it is not a final decision of the district 

court”); United States v. Melendez, 279 F.3d 16, 18 (1st Cir. 2002) (holding that nonbinding recommendations to the BOP are not reviewable orders); United States v. 

Pineyro, 112 F.3d 43, 45 (2d Cir. 1997) (holding that a district court’s recommendation 

that the BOP not credit the defendant for his time in state custody was not appealable 

because the district court’s recommendation was not binding on the BOP). 

Since the District Court’s letter was not an appealable order, we lack jurisdiction 

over Ragnoli’s appeal. 28 U.S.C. § 1291 (limiting our jurisdiction to appeals of “final

decisions” from lower courts, except when direct review may be had before the Supreme 

Court). However, there is an avenue for Ragnoli to appeal the BOP’s decision. The BOP 

Administrative Remedy Program, 28 C.F.R. § 542.10 et seq., sets forth a formal review 

process that Ragnoli can pursue in challenging the BOP’s decision. Ragnoli has not yet 

utilized this process. Ragnoli must exhaust his administrative remedies before seeking 

judicial review, which he may seek thereafter by filing a petition for a writ of habeas 

corpus under 28 U.S.C. § 2241, if his administrative appeal is unsuccessful. Setser, 132 

S. Ct. at 1473; Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996). We 

express no view as to whether those proceedings would be successful.

IV. CONCLUSION
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When “we determine that we do not have jurisdiction over this appeal, our ‘only 

function remaining [will be] that of announcing the fact and dismissing the cause.’” 

Elliott v. Archdiocese of New York, 682 F.3d 213, 219 (3d Cir. 2012) (alteration in 

original) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)). 

Therefore, this case will be dismissed for lack of jurisdiction.