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United States v. Morales

United States District Court, D. Massachusetts

December 28, 2017

UNITED STATES OF AMERICA
v.
FELIX MORALES, Defendant.

          MEMORANDUM AND ORDER RE: APPOINTMENT OF COUNSEL REGARDING MOTION FOR RECONSIDERATION (DKT. NO. 111)

          MICHAEL A. PONSOR U.S. DISTRICT JUDGE

         The government's motion for reconsideration raises an important question: does a judge have the power to clarify an ambiguity in paperwork that threatens arbitrarily to increase a defendant's prison term beyond what was intended? Given the seriousness of this issue, the court will appoint counsel to represent Defendant in connection with the pending motion.

         The rather unusual background of this case is as follows.

         On April 17, 2005, Defendant was arrested by Massachusetts authorities for drug-related offenses and released on bail.

         On May 18, 2005, while on bail, Defendant was arrested for a separate drug-related offense. This charge was originally also brought in state court, but the state charge was dismissed after Defendant was indicted in this court on June 9, 2005. Even after his federal indictment, however, Defendant remained physically in state custody based on a probation violation.

         On February 23, 2007, on a mittimus authorizing Defendant's temporary conveyance to federal court, Defendant appeared for sentencing, and the undersigned imposed a sentence of 240 months custody of the Bureau of Prisons.

         A pause in the chronology is needed here. At the time of this sentencing, everyone was aware through the Presentence Report of the pending state court charge based on criminal conduct antedating the conduct charged federally. Nevertheless, the government never requested that this court's sentence be designated to run consecutively to any subsequently imposed state sentence, either in its written memorandum or in its oral remarks. Defense counsel never touched on the issue orally, but did request a fifteen-year sentence "to be served concurrently with his present (sic) state sentence." (Dkt. 61 at 9.) Actually, the state court sentence was still to be imposed.

         At the February 23, 2007, sentencing, the undersigned never explicitly addressed the issue of whether the twenty-year sentence was to run consecutively to, or concurrently with, the imminent state-court sentence. The topic never came up. The inference, however, is obvious. Among other things, the court described the twenty-year prison term as "a terribly long sentence" (Dkt. 72, Sentencing Transcript, at 33) and stated that "[w]hen you get out in 20 years, you will be 15 years younger than I am now." (Id. at 34.) The court added that "[y]on're going to get good time if you keep your nose clean while you're in prison and you will be out and you will be in your mid-forties." (Id. at 35.) Later, the court described the prison term as "almost a life-extinguishing sentence" because of its long-term impact, even after Defendant's release. (Id. at 38.)

         No time machine exists, as yet, to transport a judge back more than ten years into the precise cognitive landscape that formed his or her mind on the day of a sentencing. To claim this degree of exact recall would be disingenuous. Nevertheless, it is possible to say, with absolute certainty, that the court's intent on February 23, 2007, was that the twenty-year prison term would run concurrently with the still-to-be-imposed state court sentence. This is confirmed by the tenor of the court's remarks (only some of which are quoted above), the residual state of the undersigned's memory, and by the undersigned's normal sentencing practice at the time. At the risk of repetition, and to switch into the first person: I am absolutely positive that my intention at the time of sentencing was that the twenty-year prison term run concurrently with any subsequently imposed state court sentence.

         Three days after the federal sentencing proceeding, on February 26, 2007, Defendant appeared in the Hampden County Superior Court for sentencing for the criminal conduct predating the federal criminal conduct. Superior Court Judge Constance Sweeney imposed a sentence of five to seven years, with the explicit proviso that this term was to run concurrently with the already-imposed federal prison term. (See Exhibit A, attached.)

         Three days after this, on March 1, 2007, the formal judgment issued in this case. (Dkt. No. 67.) Unfortunately, this paperwork omitted any reference, one way or the other, as to whether the federal sentence imposed on February 23, 2007, should run concurrently with, or consecutive to, the state sentence imposed on February 26.

         Defendant served his state prison term and was released into federal custody on November 22, 2013. It appears now that, contrary to the intentions of both the undersigned and the state court judge, the Bureau of Prisons ("BOP") has computed Defendant's twenty-year sentence to begin from the date he was released from state court custody. The BOP's practice, apparently, is to decline to examine any state court docket in making its sentencing computation - which effectively negated Judge Sweeney's intent here - and to construe any ambiguity in the federal docket in the direction of a consecutive, rather than a concurrent, sentence. The upshot is that Defendant now faces an effective sentence substantially greater than the twenty years that was intended by both this court and the Massachusetts state court at the time of his sentencings.

         On November 2, 2017, Defendant filed a pro se letter (bearing the date August 20, 2017) inquiring about his sentence, which he contended was significantly longer than this court intended. For purposes of docketing, the letter was designated a Motion to Alter Judgment. (Dkt. No. 106.) The letter requested the court take action so that Defendant's sentence would be "consistent with your intentions at my sentencing hearing on January 23 (sic), 2007." (Id.)

         On Nov. 16, 2016, the government filed a one-page opposition to Defendant's letter motion, contending that the court lacked authority under Fed. R. Crim. P. ...


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