United States Court of Appeals For the First Circuit

No. 20-1575

UNITED STATES OF AMERICA,

Appellee,

v.

JUNITO MELENDEZ, A/K/A JUNIOR,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Kayatta, Selya, and Barron, Circuit Judges.

Nicholas D. Smith, with whom David B. Smith and David B. Smith PLLC were on brief, for appellant. Greg A. Friedholm, Assistant U.S. Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

October 22, 2021 BARRON, Circuit Judge. Junito Melendez appeals the

denial of his motion under the First Step Act to reduce his

sentence for a more than decade-old federal drug offense. The

wrinkle is that he has already served his sentence for that crime.

The District Court denied the motion on that basis, deeming it

moot. Melendez now contends on appeal that it is not, because, if

he is granted the reduction to his former sentence that he

requests, then he will be spared the 10-year mandatory minimum

prison sentence that he otherwise will have to serve if he is

convicted of the new federal drug offense for which he has been

indicted. Because we are not persuaded that the sentence reduction

that Melendez seeks under the First Step Act could have that

consequence even if it were granted, we agree with the District

Court that the motion is moot, albeit on somewhat different

grounds.

I.

The First Step Act made retroactive the Fair Sentencing

Act's changes to the mandatory minimum prison sentences for certain

federal drug offenses. First Step Act,

,

, 5222 (2018) (codified as amended in scattered

sections of 18 U.S.C., 21 U.S.C., and 34 U.S.C.). Those changes

increased the amount of cocaine base that must be involved in

cocaine-related federal offenses to trigger a 5-year mandatory

minimum prison sentence for them. See 21 U.S.C.

- 2 - § 841(b)(1)(B)(iii); Fair Sentencing Act,

, 124 Stat 2372, 2373 (2010).

The First Step Act also provides a means by which a

defendant can move under

(c)(1)(B) for a reduced

sentence consistent with the terms of the Fair Sentencing Act.

See First Step Act § 404, 132 Stat. at 5222. On December 23, 2019,

Melendez did just that, by filing the motion that is at issue in

this appeal.

Melendez's First Step Act motion concerns the sentence

that he received on December 21, 2000, in the District of

Massachusetts, for his convictions of, among other things, two

counts of possession with intent to distribute cocaine base. He

was ultimately sentenced for those convictions to 109 months'

imprisonment, followed by 5 years of supervised release.

Melendez's supervised release from prison began on March

2007, but he thereafter violated the terms of his supervised

release three times. In consequence, he was sentenced in June

2010, to six months' imprisonment, with no further term of

supervised release. Thus, as of a decade ago, he had fully served

the sentence that he received in 2000.

Despite that fact, Melendez moved in 2019, in the

District of Massachusetts, to have his by-then fully served

sentence reduced pursuant to the First Step Act. It is that motion

that is our focus here.

- 3 - Melendez's motion contends that the prison sentence that

he received in 2000 for his cocaine-related offenses should be

reduced by more than half, to a prison sentence of 51 months,

consistent with the higher amount of cocaine base necessary to

trigger the 5-year mandatory minimum prison sentence under the

Fair Sentencing Act for those offenses. He further contends that

the request for the reduction is not moot, even though he has fully

served that sentence, because he is presently under indictment on

a charge of conspiracy to distribute cocaine in violation of

, which alleges that 500 grams of the cocaine involved

in the conspiracy were "reasonably foreseeable and attributable"

to Melendez.

Melendez explains that if he is convicted of that pending

charge, then he will face a mandatory minimum sentence of 10 years

of imprisonment if he is found to have "commit[ted] such a

violation after a prior conviction for a serious drug felony or

serious violent felony."

(b)(1)(B)(ii). He further

explains that a "serious drug felony" is defined in

(57) as "an offense described in section 924(e)(2) of [T]itle 18

for which (A) the offender served a term of imprisonment of more

than 12 months; and (B) the offender's release from any term of

imprisonment was within 15 years of the commencement of the instant

offense."

- 4 - Thus, Melendez argues, he will be subject to the 10-year

mandatory minimum sentence if he is convicted of the pending

federal drug charge unless he can show that he was not "release[d]

from any term of imprisonment" that was imposed on him for his

federal drug convictions "within 15 years" of when he allegedly

committed the pending drug conspiracy offense. However, he

contends, he will only be able to make that showing if the prison

sentence that he received in 2000 is retroactively reduced pursuant

to the First Step Act to a prison sentence of 51 months. Hence,

he argues, it follows that his First Step Act motion to reduce

that sentence is not moot, because that motion is the means by

which he can ensure that the new sentence that he faces will be

shorter than it otherwise must be.

The District Court nonetheless denied Melendez's First

Step Act motion as moot, because it determined that Melendez lacked

a "continu[ing] . . . personal stake in the outcome" of the motion.

The District Court explained that, because Melendez already had

served the sentence that he sought to have reduced, his First Step

Act motion was moot unless he could show that the 10-year mandatory

minimum prison sentence that he would face if he were convicted of

his pending federal drug offense charge would be a "collateral

consequence" of that prior sentence. But, the District Court

explained, Melendez failed to do so.

- 5 - The District Court explained that the supervised release

components of his 2000 sentence are "component[s] of one unified

[2000] sentence." (quoting United States v. Ketter,

(4th Cir. 2018)). It thus reasoned that, "even if [Melendez]

w[as] entitled to First Step Act relief and a revised sentence of

51 months, he has not demonstrated that he would have completed

that sentence . . . more than 15 years before" March 2019. In so

concluding, the District Court appeared to be imagining that the

sentence, as reduced, would not be for 51 months of imprisonment

full stop, but instead would be for 51 months of imprisonment

followed by a period of supervised release of at least three years.

The District Court also found on the merits that, in the

event it did have jurisdiction, it would "in its discretion [under

the First Step Act] decline to reduce [the] defendant's sentence."

The District Court was "dissuaded from exercising its discretion

in [Melendez]'s favor" for two reasons: the defendant's

"propensity for recidivism and a lack of remorse for his unlawful

conduct" as well as the underlying policy concern of rewarding

defendants for such conduct by granting sentence reductions under

the First Step Act.

Following the District Court's ruling, Melendez filed

this timely appeal in which he asks us to vacate the District

Court's denial of his First Step Act motion on mootness grounds

and remand it to the District Court so that it may be considered

- 6 - on the merits "consistent with the[] [resentencing] principles"

Melendez contends the First Step Act advances. Our review is de

novo. See Ford v. Bender,

(1st Cir. 2014).

II.

Melendez acknowledges that the District Court addressed

the merits of his motion, notwithstanding the separate ruling on

mootness. But, he contends that the District Court's merits

ruling was at the very least "ambiguous," because we cannot know

how the District Court would rule on remand if we were to adopt

his construction of the First Step Act and thus hold that his

motion under that statute to reduce his already served sentence is

not moot. For, in that event, he argues, the District Court's

reasons for denying him his requested relief would no longer be

applicable.

We have our doubts about Melendez's contention in this

regard. But, it is true that, before we can reach the aspect of

the District Court's ruling that concerns the merits of Melendez's

First Step Act motion, we must first address whether that motion

is moot. For, if it is, then we have no jurisdiction to consider

the motion on the merits. See United States v. Duclos,

(1st Cir. 2004) (explaining that mootness is a "threshold"

jurisdictional issue).

As an initial matter, we note that the District Court

premised its ruling as to mootness on the understanding that

- 7 - Melendez, in seeking a reduction of his fully-served prior sentence

to 51 months of imprisonment, was contemplating that some period

of supervised release would be tacked on to it. It is not so clear

to us that he was. But, Melendez does not dispute on appeal the

District Court's assumption that some such period would be tacked

on even to the reduced sentence that he seeks. Thus, on appeal,

for his contention that his First Step Act motion is not moot to

have any hope, he needs to show the following. He needs to show

that even if the reduced prison sentence that he seeks were also

subject to a period of supervised release, his "release" from the

resulting "term of imprisonment" would have occurred -- in the

hypothetical world he asks us to imagine -- more than fifteen years

in advance of March 2019, the alleged start date of his newly

charged criminal conduct.

To make that case, Melendez asserts that no matter how

long a period of supervised release might be tacked on to the 51-

month prison sentence that he contends should be retroactively

"imposed" pursuant to the First Step Act, none of that period would

constitute any portion of the "term of imprisonment" referenced in

(57). Thus, he contends, the reduction that he

seeks under the First Step Act would ensure that his "term of

imprisonment" would have come to an end prior to March 2004, such

that he would not be at risk of facing the 10-year mandatory

minimum prison sentence that would be imposed if he were to be

- 8 - convicted of his pending federal drug conspiracy charge,

regardless of how long a period of supervised release were to be

tacked on to it.

In pressing this contention, Melendez acknowledges that

the Supreme Court held in Johnson v. United States that

"postrevocation sanctions," including prison time for supervised

release violations, are "part of the penalty for the initial

offense,”

(2000). He also acknowledges that

the Supreme Court then reinforced that conclusion only recently in

United States v. Haymond,

(2019), when it

explained that "[t]he defendant receives a term of supervised

release thanks to his initial offense, and whether that release is

later revoked or sustained, it constitutes a part of the final

sentence for his crime." But, he contends, those precedents have

"no purchase on the purely interpretive question of whether

Congress intended the phrase 'term of imprisonment' in

(57) to incorporate punishment for supervised release

violations.”

Here, too, we have our doubts. But, even if we were to

overlook them, and thus treat the statutory phrase "term of" as if

it were referring only to the portion of the sentence "for which"

the defendant is required to be in prison and not to include even

the portion of time a defendant serves in prison for supervised

release violations, Melendez still must show more. Specifically,

- 9 - he must show that the retroactive reduction in his already-served

prison sentence would affect the date of his "release,"

(57), from it for purposes of § 841(b)(1)(B)(ii).

The problem, though, is that the word "release" -- in

ordinary parlance -- is most naturally read to refer to the moment

that a person is freed from a "term of imprisonment" that is in

fact. It is not easily read to refer to the moment that a person

would have been released from a "term of imprisonment" had his

sentence been shorter.

Melendez resists this straightforward reading of

"release" by arguing that "the First Step Act directs courts to

address 'backward-looking questions' with contemporary answers"

thereby implicitly permitting "revisionist history." (quotations

and emphasis omitted). As a result, he contends, the fact that he

was released in March 2007 should not impact whether any of his

prior drug convictions qualify as a "serious drug felony."

Instead, he argues that it is more consistent with the retroactive

nature of the First Step Act for a court to imagine that he had

been released after serving the reduced sentence.

But, the word "release" appears in § 802(57), which

defines a "serious drug felony" as a certain category of offenses

"for which" the defendant "served a term of imprisonment for more

than 12 months" and "for which" the defendant's "release from any

term of imprisonment was within 15 years of the commencement of

- 10 - the instant offense." Id. § 802(57) (emphases added). The use of

the past tense in setting out both elements of a "serious drug

felony" accords with a focus on the historical facts of a

defendant's sentence when determining whether § 802(57)'s

definition is met. See McNeill v. United States,

(2011) (finding that the "plain text" of a sentencing

enhancement required courts to look to the state of the law at the

time of the conviction irrespective of any subsequent amendments).

Moreover, the First Step Act, in altering the

circumstances in which the mandatory minimum prison sentence that

Melendez seeks to avoid triggering applies, now specifically

requires that a prior "drug felony" conviction only triggers the

mandatory minimum if it is "serious."

(b)(1)(B)(ii). That suggests that Congress intended for the

backward-looking language of § 802(57), which defines "serious

drug felony," to apply to the 10-year mandatory minimum under

§ 841(b)(1)(B)(ii) -- at least in a case such as this, in which

the only basis for imagining that the original sentence ended much

sooner than it did is the imposition of a reduced sentence pursuant

to the First Step Act.1

We note in this regard that there is no claim that 1

Melendez's prior conviction was set aside because he received a pardon or a habeas grant based on a finding of actual innocence.

- 11 - Finally, a backward-looking reading of the word

"release" in a case like this one accords with a reasonable

understanding of the purposes of § 802(57) and the First Step Act's

amendments to § 841(b)(1)(B)(ii). Such a reading takes these

provisions to be aimed at deterring recidivism by imposing harsher

penalties on those who commit a new federal drug offense too soon

after their "release" from prison based on a sentence that was

imposed for a previous drug conviction.

Thus, because Melendez was released from imprisonment

for his prior convictions, excluding the supervised release

violations, in March 2007 regardless of what his "term of

imprisonment" for those convictions would be if he were to be

resentenced under the First Step Act, we do not see how he has a

"personal stake" in whether his First Step Act motion to reduce

his already complete, decades-old sentence is granted.

Accordingly, for these reasons, we affirm the District Court's

decision and dismiss Melendez's First Step Act motion as moot (and,

therefore, as beyond the court's jurisdiction).

III.

For the reasons given above, the decision of the District

Court is affirmed.

- 12 -