USCA1 Opinion
September 27, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1384
UNITED STATES,
Appellee,
v.
ANTHONY DIPRIZIO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Torruella and Selya, Circuit Judges.
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Annemarie Hassett on brief for appellant.
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A. John Pappalardo, United States Attorney, and Stephen A.
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Higginson, United States Attorney, on brief for appellee.
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Per Curiam. Appellant Anthony DiPrizio appeals his
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sentence of 24 months imprisonment for credit card fraud and
aiding and abetting, in violation of 18 U.S.C. 1029(a)(2)
& 2. We vacate the sentence of the district court and remand
for resentencing.
On October 27, 1992, DiPrizio pled guilty, pursuant to a
plea agreement, to one count of a three count indictment. He
was sentenced on January 25, 1993. At that time, the court
determined that the appropriate offense level was 10. The
court also found that appellant's criminal history score was
13 and that he thus had a criminal history category of VI.
The court sentenced DiPrizio at the low end of the 24-30
month sentencing range. Appellant contends that the court
erred in its determination of the criminal history category
because (1) it relied on a conviction too old to be counted
in the criminal history score and (2) it improperly included
an enhancement, pursuant to U.S.S.G. 4A1.1(d), for
appellant's having committed the instant offense while "a
violation warrant from a prior sentence is outstanding."
U.S.S.G. 4A1.1, comment. (n.4) (Nov. 1992). The
government, noting that the government, the Presentence
Report, and the court, had inadvertently overlooked
appellant's argument made in the district court, concedes
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that appellant is correct in his first contention and that
the appropriate criminal history category is V.
In 1977 DiPrizio received a suspended sentence and two
years probation for controlled substances offenses. Section
4A1.1(c) of the United States Sentencing Guidelines instructs
that, where no sentence of imprisonment was imposed, the
court is to add one point to the criminal history score for
each prior sentence up to a total of four points. In the
instant case, the court added one point to DiPrizio's
criminal history score for this conviction. The commentary
clearly states, however, that, under 4A1.1(c), "[a]
sentence imposed more than ten years prior to the defendant's
commencement of the instant offense is not counted."
U.S.S.G. 4A1.1, comment. (n.3). Since the instant offense
commenced on August 22, 1991, more than ten years had passed
since the 1977 sentence was imposed. It thus should not have
been counted in determining DiPrizio's criminal history.
We do not reach appellant's contention that he is
entitled to a further reduction in his criminal history
score. Such a reduction would have no effect on his
sentencing range. Given the one point reduction in his
criminal history score due to the error in counting the 1977
conviction, appellant's criminal history score is twelve and
his criminal history category is V. Even if the enhancement
pursuant to 4A1.1(d) were incorrect, appellant would be
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entitled only to a one point reduction in his criminal
history score and thus his criminal history category would
still be V.1
Appellant's sentence is vacated and the case is remanded
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for resentencing.
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1. Appellant's criminal history score was increased two
points pursuant to 4A1.1(d). However, appellant concedes,
that if the enhancement were found improper, the net effect
would only be a one point reduction in criminal history score
since the deduction of these two points would require a one
point increase under 4A1.1(e).
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