The First Circuit’s decision in United States v. Lopez-Pastrana, 15-1894 (1st. Cir. May 4, 2018) is long, but can be summed up simply: federal courts can’t impose a term of supervised release on a charge that resulted in no prison time, even if the sentencing court is trying to help the defendant obtain federally-subsidized medical care for a serious condition. Here’s what happened in Lopez-Pastrana:
The Government charged Mr. Lopez-Pastrana with two drug crimes and two weapons crimes. He entered into a plea agreement. Mr. Lopez-Pastrana would plead guilty to possession of marijuana with intent to distribute (Count III) and possession of a firearm in furtherance of drug trafficking (Count IV). In exchange, the Government would dismiss Counts I and II. The agreed-upon (but non-binding) sentencing range was zero to six months imprisonment for Count III, and a 60 month mandatory-minimum on Count IV. Of course, there was an appeal waiver in the plea agreement.
At sentencing, Mr. Lopez-Pastrana explained he has Chronic Obstructive Pulmonary Disease (“COPD”), which, if you believe the commercial, makes you feel like an elephant or some other large animal is sitting on your chest. His sentencing attorney told the district court that Mr. Lopez-Pastrana had a 20% chance of surviving the next four years. The Government thought he was overstating the matter. According to the Government, the Bureau of Prisons represented that “his medical condition is not an end-stage disease” and that his condition had improved during the four months he was incarcerated and awaiting sentencing. (Aside: BOP has a very high opinion of its ability to care for sick people. Check out the 11th Circuit’s opinion in United States v. Seecharan, where a defendant’s doctor opined the defendant would die of infection if he went to prison, and the district court ordered incarceration based on BOP’s response was that it “could handle anything.” Happily, the 11th Circuit reversed for resentencing).
Back to Mr. Lopez-Pastrana. The district court sentenced him to 60 months in a prison medical facility on Count IV, with 5 years of supervised release. But the sentence on Count III engendered some debate. The district court basically gave Mr. Lopez-Pastrana an ultimatum. Option 1: 12 months of home confinement with federally funded medical care as a condition of supervised release, and no time in prison. Option 2: 6 months in prison. Mr. Lopez-Pastrana took the 12 months of home confinement and appealed.
Michael Brownlee is board-certified as an appellate expert by the Florida Bar. He practices in federal appellate courts around the country and is the founding member of The Brownlee Law Firm. To learn more visit appealattorney.com or email Mike at firstname.lastname@example.org.
The First Circuit’s opinion begins with a lengthy analysis and ultimate rejection of the Government’s appeal waiver argument. The First Circuit also discusses at great length, and ultimately rejects, the Government’s argument that Mr. Lopez-Pastrana invited the error he complained of on appeal by taking the deal offered by the district court. On page 15 of the opinion, the First Circuit reaches the merits of Mr. Lopez-Pastrana’s argument.
The Lopez-Pastrana Court held that the sentence on Count III was improper. First, the home confinement was imposed as a condition of supervised release, but Mr. Lopez-Pastrana did not receive any prison time on Count III. This arrangement violates 18 U.S.C. § 3583(a), which states that a term of supervised release is appropriate if it follows a term of imprisonment. In other words, you can’t get supervised release on a count that did not result in prison time. The Government argued harmless error, contending that the district court had discretion to impose home detention as an alternative to confinement under 18 U.S.C. § 3563(b)(19). The First Circuit rejected that argument because section 3563(b)(19) afforded the district court discretion to impose home detention as an alternative to confinement only as part of a sentence of probation. Mr. Lopez-Pastrana’s PSR stated he was ineligible for probation on Count III because he was sentenced at the same time to a mandatory prison term on Count IV.
The First Circuit reversed for resentencing, but it’s hard to say whether it will benefit Mr. Lopez-Pastrana. There is also a possibility he’ll be worse off after resentencing. As the First Circuit noted in the opinion, the district court could simply sentence Mr. Lopez-Pastrana to prison on Count III. But the First Circuit also noted that the district could (and probably should if you’re reading the opinion’s tea leaves) simply tack the year of home confinement onto the sentence for Count IV as a term of supervised release, and give Mr. Lopez-Pastrana a zero-month sentence on Count III. The end of the opinion is a cautionary tale: the First Circuit invited the district court to reevaluate Mr. Lopez-Pastrana’s health at the time of resentencing to (channeling Kenny Rogers here) see what condition his condition is in. If Mr. Lopez-Pastrana’s health improved while the First Circuit pondered his case, he may be in for a harsher sentence. Then again, if he’s worse, perhaps he gets a break.
This opinion is a good reminder that if a district court gives your client a decent result at sentencing, there is risk associated with upsetting upsetting the apple cart, even if you have the best legal argument in the world.