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United States v. Gonzalez-Murillo

United States Court of Appeals, Eleventh Circuit

April 4, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,

         Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:10-cr-00507-SCB-MAP-1

          Before ROSENBAUM, JULIE CARNES, and GILMAN, [*] Circuit Judges.

          PER CURIAM.

         Two sentencing guidelines diverge in how they treat time spent in state custody on relevant conduct that is accounted for in a defendant's federal sentence, and that makes all the difference in this case.[1] U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 5G1.3(b) requires the district court to "adjust" a defendant's sentence to credit him for time served in state custody on relevant conduct covered by his federal sentence-but only when the defendant has undischarged time remaining on his state sentence. Meanwhile, U.S.S.G. § 5K2.23 allows a district court to exercise discretion to "depart[]" from a guidelines sentence to reflect credit for time served in state custody on relevant conduct covered by his federal sentence when the related state sentence is completely discharged at the time of federal sentencing.

         Because the guidelines contemplate an "adjustment" under Part G of Chapter 5, when a district court exercises its discretion to reduce a defendant's sentence under 18 U.S.C. § 3582(c)(2) after a guideline amendment, the court must also credit the defendant for time served on an undischarged state sentence. But since the guidelines envision a "departure" under Part K of Chapter 5, a district court is prohibited in § 3582(c)(2) proceedings from crediting the defendant for time served on a discharged state sentence.

         Here, at Defendant-Appellant Jose Antonio Gonzalez-Murillo's original sentencing, he moved for credit under U.S.S.G. § 5G1.3(b) for thirteen months' imprisonment he served in Mississippi custody on relevant conduct covered by his federal sentence. Though the district court purported to credit Gonzalez-Murillo under § 5G1.3(b) for that time against his federal sentence, it referred to what it did as a "departure." So when Gonzalez-Murillo sought a reduced sentence under 18 U.S.C. § 3582(c)(2) following a guideline amendment, the district court granted his motion and sentenced him to the low end of the amended guidelines range, but it determined that it lacked the authority to adjust his sentence to reflect credit for time served in Mississippi custody on relevant conduct.

         We have independently reviewed the record, and it is not clear to us whether, at the time of Gonzalez-Murillo's original sentencing, Gonzalez-Murillo's state sentence of imprisonment was entirely discharged or whether, instead, Gonzalez-Murillo had additional state time remaining to be completed. Since the answer to that question drives the answer to whether, in Gonzalez-Murillo's § 3582(c)(2) proceeding, the district court was required to credit or prohibited from crediting Gonzalez-Murillo's Mississippi time, we remand this case to the district court to resolve that question and, if appropriate, modify Gonzalez-Murillo's reduced sentence accordingly.


         A. The Offense Conduct

         The United States began investigating Jose Antonio Gonzalez-Murillo for drug-trafficking activities in 2008. On April 13, 2010, while Gonzalez-Murillo was under federal investigation in Florida, local law-enforcement officers stopped him as he rode through Richland, Mississippi, on his way from California to Florida. In the car, officers found more than 4.6 kilograms of methamphetamine.

         Based on this discovery, Mississippi charged Gonzalez-Murillo with possession of a controlled substance, and he remained in the custody of Mississippi authorities pending resolution of those charges. He pled guilty on April 4, 2011, and, based on the presentence report ("PSR") in the federal case before us now, was purportedly sentenced to ten years' imprisonment, with six years suspended.

         In the meantime, on December 2, 2010, in the Middle District of Florida, the United States obtained an indictment against Gonzalez-Murillo, stemming in part from his arrest in Mississippi. As relevant here, the indictment charged conspiracy to possess with intent to distribute methamphetamine.

         On April 13, 2011, for the purposes of obtaining Gonzalez-Murillo's presence at his initial appearance on the federal charge, the United States filed a petition in the Middle District of Florida for a writ of habeas corpus ad prosequendum directing the United States Marshal to take custody of Gonzalez- Murillo, who was then confined in the Rankin County Jail in Brandon, Mississippi, into federal custody from the state of Mississippi. The writ was issued on April 14, 2011. In its summary of disposition of the Mississippi conviction, the PSR indicates that Gonzalez-Murillo was "released to United States Marshals Service" on April 19, 2011.

         Notwithstanding the earlier issuance of a writ, however, the Middle District of Florida court docket indicates that Gonzalez-Murillo was arrested in the Southern District of Mississippi on April 21, 2011. Gonzalez-Murillo made his initial appearance on the federal charges before a Southern District of Mississippi magistrate judge, pursuant to Fed. R. Crim. P. 5(c)(2). At this proceeding, counsel for the government moved that Gonzalez-Murillo be detained. After Gonzalez-Murillo waived his right to a detention hearing, the magistrate judge remanded the defendant to the Marshal to await transfer to the Middle District of Florida.[2]

         On May 11, 2011, Gonzalez-Murillo was arraigned in the Middle District of Florida on the federal indictment. At this arraignment, the magistrate judge stated that it appeared that Gonzalez-Murillo was potentially eligible for bail, based on an April 19, 2011, federal Pretrial Services report indicating that Gonzalez-Murillo had been released from his Mississippi sentence. The Assistant United States Attorney confirmed his understanding that the Mississippi sentences had "ultimately resulted in time served" and argued that Gonzalez-Murillo should be detained. Counsel for Gonzalez-Murillo indicated his belief that the court could set reasonable conditions of release but stated that he would make any argument for release by a later motion.

         Ultimately, Gonzalez-Murillo entered a guilty plea to the conspiracy count. In his plea agreement, Gonzalez-Murillo admitted, as part of the factual basis for his guilty plea, that he was "in the process of transporting approximately 12 pounds of methamphetamine" on April 13, 2010, when he was arrested in Mississippi.

         B. Gonzalez-Murillo's 2011 Sentencing

         At Gonzalez-Murillo's federal sentencing, the district court used the Sentencing Guidelines Manual in effect as of November 1, 2011, to determine an offense level of 31 and an advisory guidelines range of 108 to 135 months' imprisonment. In calculating that range, the court held Gonzalez-Murillo responsible for offense conduct involving at least five, but less than fifteen, kilograms of methamphetamine, corresponding to a base offense level of 36 at that time.[3] As part of this determination, the district court included the Mississippi events as relevant conduct under U.S.S.G. § 1B1.3.

         During the sentencing, it became clear that the district court thought that a total sentence at the low end of the guidelines range would be appropriate to punish Gonzalez-Murillo for all of his relevant conduct, including the Mississippi events. The government agreed.

         Gonzalez-Murillo noted that he had served roughly thirteen months in state custody for the Mississippi events and sought credit under U.S.S.G. § 5G1.3(b)(1) for that state custody on his federal sentence. Though the government did not object, it recommended (without referencing U.S.S.G. § 5K2.23) that the district court impose the credit in the form of a departure or a variance to be sure that Gonzalez-Murillo received his credit. The district court agreed that Gonzalez-Murillo was entitled to credit for his time in Mississippi custody because that time was for relevant offense conduct. Describing the government's suggestion as the "safest thing, " the district court decided to grant the thirteen-month credit by calling it a "departure."

         So the district court subtracted thirteen months from the low end of the guideline range (108-135) to arrive at a sentence of 95 months' imprisonment. In pronouncing the sentence, the district court explained that it had "sentenced [Gonzalez-Murillo] at the low end of the advisory guideline range after [it had] departed." It further noted that it had "sentence[d] [Gonzalez-Murillo] to 95 months . . . based on [U.S.S.G. §] 5G1.3(b)."

         In the Statement of Reasons for Gonzalez-Murillo's sentence, the district court described itself as having imposed a "departure pursuant to U.S.S.G. [§] 5G1.3(b)(1), and adjusted the sentence for the time already served in [Mississippi], that is relevant conduct and will not be credited to the federal sentence by the Bureau of Prisons."

         At one point, the district court noted that Gonzalez-Murillo had been sentenced to ten years' imprisonment in the Mississippi case.[4] At no time during the sentencing hearing, however, did the parties indicate that Gonzalez-Murillo had any time remaining to be served on that earlier sentence. For example, defense counsel never requested that the federal sentence be made to run concurrently with the state sentence, and the court indicated that Gonzalez-Murillo would remain in the Marshal's custody pending designation of a federal facility.

         C. The Motion for Sentence Reduction

         In February 2016, Gonzalez-Murillo filed a motion for sentence reduction under 18 U.S.C. § 3582(c)(2). In support of his application, Gonzalez-Murillo argued that Amendment 782 to the Guidelines, made retroactively applicable through Amendment 788, reduced to 34 the offense level associated with the drug quantity for which he was held responsible. As a result, Gonzalez-Murillo contended, the amendments had the effect of decreasing his guidelines range to 87 to 108 months' imprisonment, making him eligible for a reduction of his sentence. As Gonzalez-Murillo viewed things, the district court could choose to reduce his sentence as low as 74 months' imprisonment, since the low end of the guidelines range was 87 months, and the district court had previously found that, under U.S.S.G. § 5G1.3(b)(1), he was entitled to 13 months' credit for time served in Mississippi.

         Though the government did not oppose Gonzalez-Murillo's request to be resentenced at the low end of the amended guidelines range-87 months' imprisonment-it argued that the district court lacked the power to grant any further reduction. In particular, the government described the thirteen-month credit that the district court had applied at the original sentencing as a "departure" under § 5G1.3 and argued that since, in its view, § 5G1.3 authorizes departures only, a district court may not reapply a sentencing credit on resentencing under § 3582(c)(2).

         The district court agreed with the government.[5] It reduced Gonzalez-Murillo's sentence to 87 months. But it concluded that it was not authorized to impose a sentence below 87 months. Like the United States, the court characterized itself as, at the original sentencing, having credited Gonzalez-Murillo under § 5G1.3(b)(1) for the thirteen months in Mississippi. Yet the district court described what it had done as a "departure." And since a district court may not apply a departure, other than one based on substantial assistance, in § 3582(c)(2) reduced-sentencing proceedings, the district court did not credit Gonzalez-Murillo for the thirteen months in Mississippi. Gonzalez-Murillo now appeals.


         In considering on appeal a proceeding to modify a sentence under 18 U.S.C. § 3582(c)(2), we review de novo the district court's legal conclusions regarding the scope of its authority under the Sentencing ...

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