18‐1839‐cr United States v. Anderson
United States Court of Appeals for the Second Circuit AUGUST TERM 2019 No. 18‐1839
UNITED STATES OF AMERICA, Appellee,
v.
RAFAEL OJEDA, AKA Papi, CALVIN OJEDA, AKA Killa, JONATHAN OJEDA, AKA Shorty, AKA Chorty, SERVANDO JOSE GOMEZ, AKA June, HECTOR TIRADO, AKA Hec, TRAVIS PROFIT, AKA Trap, ANGEL SEPULVEDA, AKA A‐Plus, EDUARDO VASQUEZ, AKA Spider, JASON PEREZ, AKA Santana, TREVIS BOWENS, AKA T‐Money, JHOVY DIONIZIO, CHRISTIAN DUMES, AKA Gordo, CHRISTIAN RAMOS, AKA Fatboy, PAQUITO RODRIGUEZ, AKA Frank, GISETTE RIVERA, SAMUEL PALMER, AKA Junior, JOSE COLON, ANTOINE HENDERSON, AKA Will, ADRIEL PONCE, AKA A., CHRISTOPHER RICHARDSON, AKA C., ROBERT MATOS, AKA Rob, AKA Smooth Baller, DARIEL ALVAREZ, AKA Dynasty, AKA D., LOUIS DAVILA, AKA Bam, AKA Bam Bam, WILBERT LEWIS, AKA Lil Bill, AKA LB., JAY CAPODIFERRO, Defendants,
DWIGHT ANDERSON, Defendant‐Appellant.
ARGUED: SEPTEMBER 26, 2019
DECIDED: JANUARY 9, 2020
Before: JACOBS, SACK, HALL, Circuit Judges.
In this sentencing appeal, the government has consented to a partial
remand to the United States District Court for the Southern District of New York
(Daniels, J.) because the district court erroneously assumed that it lacked
authority to impose rather than merely recommend concurrent or consecutive
sentences with respect to a yet‐to‐be‐imposed state sentence. However, the
government does not consent to a remand for the district court to reconsider a
related Guidelines issue, arguing that the defendant waived his right to appeal
procedural sentencing errors as part of his plea agreement.
Because the issues raised on appeal are closely related, and it is within our
discretion to control the scope of our mandate, we direct the district court to
examine both issues on remand.
We VACATE the sentence and REMAND for further proceedings.
____________________
ROBERT A. CULP, Garrison, NY, for Defendant‐ Appellant Dwight Anderson.
GEOFFREY S. BERMAN, United States Attorney for the Southern District of New York (Anden Chow, Samson Enzer, Jared Lenow, Daniel B. Tehrani, on the brief), for Appellee United States of America.
DENNIS JACOBS, Circuit Judge:
When Dwight Anderson was sentenced to 120 months for federal drug
offenses, the United States District Court for the Southern District of New York
(Daniels, J.) "recommend[ed]" to the Bureau of Prisons that Anderson's federal
sentence run concurrently with a yet‐to‐be‐imposed state sentence for a parole
violation. Anderson argues that the court acted on the erroneous assumption
that it lacked the authority to impose a sentence that is concurrent or consecutive
to a yet‐to‐be imposed state sentence (the "Concurrency Issue"). The
government has consented to a limited remand on the Concurrency Issue.
However, the government opposes Anderson's appeal of a related Guidelines
issue: whether the district court misunderstood its authority to reduce
Anderson's sentence below the statutory mandatory minimum to account for
time served on his state sentence for a related offense (the "Mandatory Minimum
Issue").
Opposing remand on the Mandatory Minimum Issue, the government
cites Anderson's plea waiver of the right to appeal any sentence below 188
months' imprisonment. We conclude that in this case, in which the government
has waived