United States Court of Appeals

For the First Circuit

No. 08-1499

UNITED STATES OF AMERICA,

Appellee,

v.

ROLANDO SANTIAGO-RIVERA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Torruella, Selya and Howard,

Circuit Judges.

Irma R. Valldejuli on brief for appellant.

Nelson Pérez-Sosa, Assistant United States Attorney, Thomas F.

Klumper, Assistant United States Attorney, and Rosa Emilia

Rodríguez-Vélez, United States Attorney, on brief for appellee.

February 5, 2010
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SELYA, Circuit Judge. Defendant-appellant Rolando

Santiago-Rivera challenges as unreasonable the sentence imposed upon

him in connection with the revocation of a term of supervised

release. The circumstances of this case are unusual and the

question presented -- which involves the extent to which a federal

judge may shape a sentence for a violation of supervised release to

affect an unrelated state sentence -- is one of first impression.

After careful consideration of this conundrum, we conclude that the

district court committed a procedural error by relying upon an

impermissible factor in fashioning its sentence. Accordingly, we

vacate the appellant's sentence and remand for further proceedings.

I. BACKGROUND

In the United States District Court for the District of

Puerto Rico, the appellant entered a plea of guilty, on February 21,

2006, to a charge of being a felon in possession of a firearm, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The court

sentenced him to serve a 30-month incarcerative term, to be followed

by a three-year period of supervised release. 

While the firearms case was pending in federal court, the

appellant was tried and convicted for a double murder in the Puerto

Rico trial court. That court sentenced him to serve a 99-year term

of imprisonment, to be followed by a five-year consecutive term of

imprisonment.
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The appellant was released from federal prison on June

11, 2007. On October 3 of that year, a federal probation officer

requested a warrant for the appellant's arrest, stating that the

appellant had violated the general condition that he report to the

probation officer within 72 hours of his release from the custody

of the federal Bureau of Prisons (BOP). 

II. REVOCATION HEARING

At the revocation hearing, the appellant admitted the

violation and the government requested a 12-month prison sentence.

This recommendation came within the applicable advisory guideline

range, which called for 6-12 months of imprisonment. The district

court accepted the government's recommendation as to the

suitability of a 12-month period of immurement but tacked on a twoyear term of supervised release. It explained its rationale in

clear terms:

The Court recommends to the Bureau of

Prisons that Mr. Santiago be turned over to

the state authorities so that he may continue

serving the time that he has to do in state

court and that a detainer be lodged in the

state court so that, subsequently, this

federal sentence is served.

Basically, the reason I do this is because

I am skeptical on the state system, the way

that they calculate the sentences. And who

knows, he may be out of prison in a very

reasonable future date and, therefore, this

federal sentence would start to apply.

Defense counsel argued against the sentence on the ground that:
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[W]ith supervised release term pending, he

will not get any credit or benefits, because

he will have the detainer for the supervised

release term. So no benefits will be given to

him. And that means that he might have to

serve the whole 30, 40, 50 years, maybe the

whole 99 years, under the new penal code of

Puerto Rico, without any benefits because of

the detainer pending.

The court repeated its reasoning and made pellucid its intention to

affect the state sentence:

COURT: Well, he has a 99-year sentence, plus a

consecutive five-year sentence. And but for

the detainer, he could be out in eight years.

That's what you're saying. 

* * *

That's why I am sentencing the way I'm

sentencing him.

It appears from BOP records that the appellant already

has served the 12-month sentence of imprisonment. The record on

appeal and the parties' briefs provide no information as to whether

the BOP followed the recommendation to lodge a detainer in the

commonwealth court to ensure that the supervised release portion of

the revocation sentence would be served after the appellant's

release (if one occurred) from the Puerto Rico prison system.

III. DISCUSSION

Two well-established principles of law cabin our inquiry.

To begin, a non-binding recommendation by a district court to the

BOP is not a reviewable order. United States v. Meléndez, 279 F.3d
 In this context, Puerto Rico is the functional equivalent of 1

a state. Cf. United States v. Acosta-Martinez, 252 F.3d 13, 19 n.5

(1st Cir. 2001).

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16, 18 (1st Cir. 2002). Therefore, we do not focus on the district

court's recommendation to the BOP anent the lodging of a detainer.

The next principle is that a revocation sentence is

reviewed for abuse of discretion under 18 U.S.C. § 3583(e)(3).

United States v. McInnis, 429 F.3d 1, 4 (1st Cir. 2005). A

material mistake of law is, perforce, an abuse of discretion.

United States v. Caraballo, 552 F.3d 6, 8-9 (1st Cir. 2008).

The appellant does not challenge the length of the prison

sentence imposed upon revocation of supervised release; instead, he

challenges only the imposition of yet another term of supervised

release. Under the advisory sentencing guidelines, a reviewing

court must look at both the procedural and the substantive

propriety of a challenged sentence. See, e.g., United States v.

Carrasco-De-Jesus, 589 F.3d 22, 26 (1st Cir. 2009). If a concern

that a state will fail adequately to punish a defendant on an

unrelated charge is an impermissible sentencing factor, the

sentence must be vacated as a matter of law.1

The relevant statute, 18 U.S.C. § 3583(e)(3), permits

imposition of a term of imprisonment upon revocation of a term of

supervised release; a different subsection of the statute, 18

U.S.C. § 3583(h), permits a term of supervised release to be

imposed in addition to the term of imprisonment. As subsection (h)
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does not list the factors to be considered in imposing a term of

supervised release as part of a revocation sentence, it is a

reasonable inference that the factors are the same as those to be

considered in imposing an initial term of supervised release. See

18 U.S.C. § 3583(c), cross-referencing to 18 U.S.C. § 3553(a)

(listing factors to be considered in imposing a sentence). 

The factors to be considered under 18 U.S.C. § 3583(c)

include the nature and circumstances of the offense; the history

and characteristics of the offender; the need to afford adequate

deterrence; the need to protect the public from further crimes; the

need to provide the offender with training, care, or treatment; the

guidelines and any pertinent policy statement(s); the need to avoid

unwarranted sentencing disparity; and the need to effect

restitution. These statutes provide guidance -- but not absolute

certitude -- as to what factors should be considered. 

It is clear from the transcript of the sentencing hearing

in the case at hand that most of the enumerated factors were not

considered. The district court did consider the advisory guideline

range to the extent that the sentence did not exceed it.

Nonetheless, Chapter Seven of the guidelines expresses the

Sentencing Commission's view that sentences upon revocation of

supervised release are intended to punish the breach of trust that

the violation represents. Here, the nature of the violation -- a

breach of trust signified by failure to report -- was not even
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mentioned by the sentencing court. Instead, the focus of the

hearing was strictly and solely on condign punishment for the

appellant's murder case. Had the murders been committed during the

original period of supervised release, these crimes would

appropriately have factored into the revocation sentence. But, the

murders were committed before the appellant was imprisoned on the

federal firearms charge and, a fortiori, before the imposition of

the first supervised release term occurred. Thus, the revocation

of supervised release bore no conceivable relationship to the

murders, and vice-versa.

As we noted above, this case presents a question of first

impression. Most likely, the paucity of cases on point stands as

a testament to the fact that the federal district courts, when

faced with the need to sentence a defendant upon revocation of

supervised release, seldom rely upon impermissible factors in

reaching sentencing decisions. We have, however, found a handful

of cases addressing impermissible sentencing factors. 

The most notable is United States v. Velasquez Velaquez,

524 F.3d 1248 (11th Cir. 2008). There, the court of appeals noted

that it was appropriate to "review de novo, as a question of law,

whether a factor considered by the district court in sentencing a

defendant is impermissible." Id. at 1252. A sentence imposed upon

revocation of supervised release was vacated on the ground that the

district court was motivated to lengthen the sentence by its
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disapproval of the fact that an immigration judge had released

Velasquez on bond pending his appeal of the denial of his request

for asylum. Id.

By way of analogy, sentences also have been vacated when

a district court stumbles over the concept of "disparity." The

decisions in United States v. Williams, 524 F.3d 209 (2d Cir.

2008), United States v. Jeremiah, 446 F.3d 805 (8th Cir. 2006), and

United States v. Clark, 434 F.3d 684 (4th Cir. 2006), all involved

sentences for substantive offenses rather than sentences imposed

upon revocation of supervised release. In each case, the court of

appeals held that it was procedural error for a district court to

consider the disparity between federal sentences and local

sentences for similar offenses. Williams, 524 F.3d at 215,

Jeremiah, 446 F.3d at 808, and Clark, 434 F.3d at 686. Cf. United

States v. Snyder, 136 F.3d 65, 69 (1st Cir. 1998)(under then

mandatory guidelines, federal/state sentencing disparity

impermissible basis for downward departure). The courts in

Williams, Jeremiah, and Clark agree that the advisory guidelines

are there to aid district courts in achieving a level of nationwide

consistency in federal sentencing, a goal to which consistency

between federal and state sentencing has to be subordinated.

The district court in the case at bar went beyond

considering the disparity between federal and state sentences.

Rather, the district court explicitly fashioned a federal sentence
 Although it does not affect the outcome of this appeal, we 2

note that the court, the assistant United States attorney, and

defense counsel all lacked reliable information regarding the

question of how the Commonwealth of Puerto Rico would implement the

sentence imposed by its court. They variously estimated that the

appellant might serve eight years, 40 years, or 99 years; among

other things, it was not clear whether the appellant had been

sentenced as a minor, or whether, under the Commonwealth's new

penal code, the lodging of a detainer would affect the credits and

benefits afforded him during his state incarceration. Many

ambiguities pervade other aspects of the record.

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in order to influence the manner in which a sentence imposed by a

local court was implemented. The murders for which the appellant

was convicted and sentenced in the Puerto Rico trial court were

unrelated to either the federal firearms offense (the offense of

conviction) or the appellant's violation of the conditions of his

term of supervised release.2

There are two loose ends. First, we reject the

government's assertion that the appellant's claim of sentencing

error was either forfeited or waived because he argued too

generally in the district court. It is sufficient that the

appellant objected to the sentence on the precise contention that

the court's proposed course of action would impermissibly affect

his state sentence. Second, the government for its part has

forfeited any argument that the district court's bevue did not

prejudice the appellant.

IV. CONCLUSION

We need go no further. For the reasons elucidated above,

we conclude that the district court committed procedural error by
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selecting a sentence for the sole purpose of controlling the

running of an unrelated local sentence. 

This leaves the question of a remedy. In the unusual

circumstances of this case, we think that the appropriate remedy is

to vacate the sentence (which, after all, was based at least in

part on an impermissible sentencing factor) and to remand the case

for further proceedings, including resentencing, consistent with

this opinion. We take no view as to the appropriate sentence to be

imposed on remand; our concern here is with procedural error.

 So ordered.