BLD-128 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 23-1015 ___________

UNITED STATES OF AMERICA

v.

ANGEL RODRIGUEZ, a/k/a SPANKY, Appellant ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Crim. Action No. 2-89-cr-00455-005) District Judge: Honorable Joseph F. Leeson, Jr. ____________________________________

Submitted for Possible Dismissal Due to a Jurisdictional Defect or Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 April 20, 2023

Before: KRAUSE, PORTER, and MONTGOMERY-REEVES, Circuit Judges

(Opinion filed: May 30, 2023) _________

OPINION * _________

PER CURIAM

Angel Rodriguez appeals from an order of the District Court responding to his

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. inquiries about his federal and state sentences. We will dismiss this appeal to the extent

that it seeks an advisory opinion and will otherwise affirm.

I.

In 1990, the District Court sentenced Rodriguez to 120 months in prison after he

pleaded guilty to conspiring to distribute cocaine. In 1998, following reinstatement of a

1990 conviction of first-degree murder, the Pennsylvania Court of Common Pleas for

Philadelphia County sentenced him to life imprisonment without parole. Rodriguez

apparently has not served any portion of his federal sentence in federal custody but is

subject to a federal detainer on which he may be taken into federal custody if he is

released from state custody.

Beginning in 2020, Rodriguez sent five letters to the District Court asking whether

his federal sentence is concurrent with his state sentence. At times he asserted his belief

that his sentences were concurrent, but at other times he asserted that he did not know

whether they were concurrent and he sought advice or documentation on that point.

Rodriguez also attached to two of his letters a memorandum from the Federal Bureau of

Prisons denying his request to run his federal sentence concurrent with his state sentence.

But Rodriguez did not seek review of that decision or otherwise ask the District Court to

rule that his federal sentence was concurrent. Instead, he merely requested information

about his federal sentence, and he claimed only that he needed that information in order

to apply for commutation of his state sentence.

The District Court responded to Rodriguez’s inquiries by order entered December

6, 2022. The Court advised him that his federal and state sentences are silent about

2 whether they are concurrent or consecutive. The Court further advised him that the BOP

will determine how his federal sentence will run, and it directed him to address any

further inquiries about his sentence to the BOP. Rodriguez appeals from that order.

II.

We address three issues. First, in his notice of appeal, Rodriguez argues that the

District Court’s advice was wrong because only the Court, and not the BOP, has the

authority to decide whether his federal sentence is concurrent with his state sentence. But

Rodriguez did not request any relief on that issue in the District Court and the Court did

not grant or deny any such relief. Thus, in asking us to correct the Court’s purportedly

wrong advice, Rodriguez asks us to render an advisory opinion rather than resolve any

actual controversy. See Donovan ex rel. Donovan v. Punxsutawney Area Sch. Bd.,

, 217 n.3 (3d Cir. 2003) (declining to render an advisory opinion on an issue

“[i]n the absence of a motion” for relief). We lack jurisdiction to render advisory

opinions, and we will dismiss this appeal to the extent Rodriguez seeks one. See Rhone-

Poulenc Surfactants & Specialties, L.P. v. Comm’r,

(3d Cir. 2001).

Second, in some of Rodriguez’s letters, he asked the District Court to provide him

or the BOP with a copy of his federal sentencing transcript. In response, the Court’s

Clerk twice advised him how to obtain records from the National Archives, and the Court

directed him to address future sentencing inquiries to the BOP. To the extent that

Rodriguez can be understood to claim that the Court should have done more, we will

affirm because courts generally are not required to provide legal assistance to pro se

litigants. See Mala v. Crown Bay Marina, Inc.,

(3d Cir. 2013).

3 Third, in his notice of appeal, Rodriguez asks that his federal sentence be ordered

to run concurrently with his state sentence. But Rodriguez did not request that relief in

the District Court. We generally do not consider requests made for the first time on

appeal, see C.H. v. Cape Henlopen Sch. Dist.,

(3d Cir. 2010), and we

will not do so here. Nor do we construe Rodriguez’s notice of appeal as a petition for

any relief within our original jurisdiction. Rodriguez can request the relief he now seeks

by filing an appropriate petition with the District Court. 1 We express no opinion on

whether relief might be available or warranted.

III.

For these reasons, we will dismiss this appeal in part and will otherwise affirm.

Rodriguez’s motion for appointment of counsel is denied. 2

1 We note that, because Rodriguez’s federal sentence was silent on whether it was concurrent with or consecutive to his subsequent state sentence, an order that the federal sentence is concurrent would be a modification of that sentence. District courts lack the authority to modify sentences once imposed except in situations that do not appear to be presented here. See United States v. Washington,

(3d Cir. 2008) (addressing

(c) and Fed. R. Crim. P. 35). Thus, as the District Court advised Rodriguez, the relief he seeks would appear to be within the purview of the BOP. It appears that Rodriguez already has asked the BOP to treat his federal sentence as concurrent with his state sentence and that the BOP has denied his request. If Rodriguez wishes to seek further review of that issue, then he should exhaust whatever remaining administrative remedies he has with the BOP and then file a habeas petition under

with the District Court. See Setser v. United States,

(2012); Barden v. Keohane,

(3d Cir. 1990). 2 The Clerk notified the parties that this appeal is subject to dismissal because Rodriguez filed his notice of appeal after the 14-day deadline to appeal under Fed. R. App. P. 4(b)(1)(A). We need not address that issue because the Rule 4(b) deadline is not jurisdictional and the Government has not sought dismissal. See United States v. Muhammud,

(3d Cir. 2012). 4