USCA1 Opinion
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 95-2200
UNITED STATES,
Appellee,
v.
FRANK J. LINDIA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Edward S. MacColl with whom Thompson, McNaboe, Ashley & Bull was
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on brief for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
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whom Jay P. McCloskey, United States Attorney, and Jonathan R.
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Chapman, Assistant United States Attorney, were on brief for appellee.
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April 18, 1996
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STAHL, Circuit Judge. Pursuant to a plea agreement
STAHL, Circuit Judge.
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with the government, defendant-appellant Frank J. Lindia
pleaded guilty to a one-count indictment charging that, from
December 1994 to January 31, 1995, he and codefendants John
C. Mosby and Augustine T. Aguirre conspired to possess with
intent to distribute in excess of fifty kilograms of
marijuana, in violation of 21 U.S.C. 846, 841(a)(1) and
(b)(1)(C). On appeal, Lindia claims that the district court
erred by: including a negotiated but unconsummated sale of
150 pounds of marijuana in the sentence calculation;
sentencing him as a career offender; and refusing to depart
downward from the sentence on his claim that the career-
offender criminal history category significantly
overrepresented his past criminal conduct.
I.
I.
__
Pertinent Background and Prior Proceedings
Pertinent Background and Prior Proceedings
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A. Facts
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We accept the facts as set forth in the uncontested
portions of the Presentence Investigation Report ("PSR") and
the sentencing hearing transcript, see United States v.
___ ______________
Muniz, 49 F.3d 36, 37 (1st Cir. 1995), reciting additional
_____
facts below as necessary.
In late 1994, federal and Maine law enforcement
authorities, with the help of a cooperating individual (CI),
began investigating Lindia's activities. Soon thereafter,
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the CI (who had been the "buyer" in monitored marijuana
transactions) introduced to Lindia an "associate," undercover
DEA Special Agent Mike Cunniff, who would handle further
transactions. During the ensuing negotiations, Agent Cunniff
was introduced to Lindia's associates, Aguirre and Mosby.
On January 20, 1995, Agent Cunniff met Mosby at
Mosby's home in Jamestown, Rhode Island, where Mosby
delivered to Cunniff forty-eight pounds of marijuana. On
January 31, 1995, Lindia and Aguirre met Agent Cunniff in
Portland, Maine, to receive payment for the marijuana. The
meeting took place in a hotel room that government agents had
previously set up with videotape equipment. During the
meeting, Agent Cunniff delivered $62,400 in cash and
commented on the failure of Aguirre and Lindia to accept the
payment earlier, as they had promised. Concerned about his
customer's unhappiness, Lindia apologized for the delay and
indicated that more marijuana was available. The three men
then planned for an additional thirty pounds of marijuana to
be delivered the next day.
Also during the videotaped meeting, Lindia told
Cunniff, "We have something else . . . that we would like to
send up to you." Both Lindia and Aguirre then spoke of a
subsequent shipment of marijuana and indicated that they
could probably send Cunniff "about" 150 or 200 pounds,
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3
depending upon the capacity of the vehicle in which it would
travel.1 Lindia stated that the lot could be delivered in a
little over one week's time. After counting out the cash
payment for the forty-eight pound lot and discussing details
of the next day's thirty-pound delivery, Lindia and Aguirre
left the hotel room and were promptly arrested. Lindia
eventually pleaded guilty and cooperated with the
authorities.
B. Sentencing
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____________________
1. The transcript of this portion of the conversation
between Lindia, Aguirre and Agent Cunniff reads, in part:
Lindia: And let me ask you another question. We
have something else . . . that we would
like to send up to you. Now this is
going to be
Aguirre: What, the [shipment] that's coming
Lindia: The one that's coming with . . . Chewy
Aguirre: Are you talking about this one that's
already
Lindia Not this one, the one that's behind it
from Chewy
Aguirre: Well, we could probably get about
Lindia: We could probably get about
Aguirre: One and one half, or two even
Cunniff: I can handle three, five, or thousand
Lindia: This is contingent upon the vehicle that
we have at this point. . . . So two would
probably be the limit.
After discussing delivery matters about this shipment, the
discussion continued:
Cunniff: How much are we talking about?
Lindia: Probably one and half to two
. . . .
Aguirre: Whatever we can get [in the vehicle].
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The district court sentenced Lindia as a career
offender under 21 U.S.C. 994(h), including as a predicate
offense Lindia's Rhode Island conviction on a nolo contendere
____ __________
plea for possession with intent to deliver marijuana. Under
the Career Offender guideline, U.S.S.G. 4B1.1, the court
was required to determine the offense statutory maximum in
order to ascertain the applicable offense level. Because the
court included the negotiated 150-pound lot in the amount of
drugs attributable to Lindia, it found the offense statutory
maximum to be twenty years' imprisonment under 21 U.S.C.
841(b)(1)(C).
Pursuant to the Career Offender guideline, the
statutory maximum of twenty years yielded an offense level of
thirty-two with a criminal history category of VI. Lindia
asked the court to depart downward on the basis that the
criminal history category overrepresented his criminal
history; but the court refused, specifically ruling that it
did not have the authority to do so. The court did grant a
three-level downward adjustment in the offense level for
acceptance of responsibility, resulting in a total offense
level of twenty-nine and a guideline imprisonment range of
151 to 188 months. On the government's motion under U.S.S.G.
5K1.1, the court departed downward from the guideline range
for Lindia's substantial assistance and imposed a sentence of
108 months' incarceration.
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II.
II.
___
Discussion
Discussion
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We review the sentencing court's findings of fact
for "clear error" and generally defer to its credibility
determinations. United States v. Muniz, 49 F.3d 36, 41 (1st
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Cir. 1995); United States v. Whiting, 28 F.3d 1296, 1304 (1st
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Cir.), cert. denied, 115 S. Ct. 378, 498, 499, 532 (1994).
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We review de novo the court's interpretation of the
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guidelines and application of law. Muniz, 49 F.3d at 41.
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A. Drug Quantity Calculation
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The extent of the penalty for a controlled-
substance conviction is determined in large part by the
amount of drugs properly attributable to the defendant.
United States v. Campbell, 61 F.3d 976, 982 (1st Cir. 1995),
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petition for cert. filed, (Mar. 8, 1996) (No. 95-8348). On
________ ___ _____ _____
appeal, Lindia challenges the district court's inclusion of
the negotiated but unconsummated 150-pound lot in the
calculation of his sentence. Without this quantity, he would
have received the benefit of 21 U.S.C. 841(b)(1)(D), which
provides for a maximum imprisonment term of only five years
"[i]n the case of less than 50 kilograms of marijuana."2
Use of this penalty provision would have yielded, under the
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2. 1 kilogram is equivalent to approximately 2.2 pounds.
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Career Offender guideline, a pre-adjustment offense level of
seventeen instead of thirty-two. See U.S.S.G. 4B1.1.3
___
The PSR stated that Lindia was responsible for
103.5 kilograms of marijuana, representing a combination of
the forty-eight pound, thirty-pound, and 150-pound lots.4
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3. This challenge is somewhat perplexing in light of the
indictment and plea agreement in the record before us.
Lindia informs this court that he pleaded guilty to the
conspiracy to possess with intent to distribute marijuana but
"did not plead guilty to quantity." The indictment to which
he pleaded guilty, however, states that the conspiracy was
for "in excess of 50 kilograms." Further, both the
indictment and the plea agreement cite 21 U.S.C.
841(b)(1)(C) which sets forth a maximum sentence of 20
years as the applicable penalty provision. Indeed, the plea
agreement explicitly states that "[t]he parties agree and
understand that the maximum statutory penalty which may be
imposed upon conviction is imprisonment of not more than
twenty years."
Nonetheless, Lindia insists that at the change of
plea hearing, the court and the parties "understood" that the
issue of drug quantity would be left entirely open for
sentencing purposes. Incredibly, Lindia does not provide
this court with a transcript of the change of plea hearing
for our consideration of his claimed material change in the
indictment and plea agreement. And nothing in the record
before us hints of a superseding indictment or information
eliminating the quantity specification. Because the record
adequately supports the court's finding that, counting the
negotiated 150-pound lot, the marijuana quantity attributable
to Lindia was in excess of 50 kilograms, we do not decide
whether his plea precluded his challenge to the drug quantity
finding.
4. The government points out that, with a total quantity of
103.5 kilograms of marijuana, the five-year mandatory minimum
and 40-year maximum in 21 U.S.C. 841(b)(1)(B)(vii) might
have applied rather than the 20-year maximum in
841(b)(1)(C). The application of the lower maximum
sentence is apparently based on the understanding of the
parties and court, as evidenced in the indictment, plea
agreement, and PSR, that Lindia would be responsible for a
marijuana quantity that would trigger no more than the
penalties set for in 841(b)(1)(C).
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7
Lindia objected to this conclusion, asserting, inter alia,
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that the 150-pound lot "never existed" and was not the object
of any conspiracy, and that his statements about it
constituted mere "puffing" in an attempt to gain Agent
Cunniff's business confidence. At the sentencing hearing,
Lindia testified that the 150-pound lot had never been
previously discussed or planned and that no steps had been
taken to obtain it. Lindia repeated that the discussion was
meant to impress Agent Cunniff, and testified that only after
obtaining payment for the forty-eight and thirty-pound lots
did he intend to actually seek the additional 150 pounds of
marijuana.
The district court found, under a preponderance-of-
the-evidence standard, that the proposed delivery of the 150
pound lot had not been discussed or planned before the
videotaped meeting. The court also found, however, that
based on Lindia's and Aguirre's statements, the 150 pounds of
marijuana added to, and were part of, the charged conspiracy.
The court found that Lindia and Aguirre intended to produce
that marijuana and were reasonably capable of doing so and
thus, the 150 pounds were includable in the offense conduct
for the purposes of the statutory maximum and the Sentencing
Guidelines.
Application note 12 of U.S.S.G. 2D1.1 provides:
In an offense involving negotiation to
traffic in a controlled substance, the
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8
weight under negotiation in an
uncompleted distribution shall be used to
calculate the applicable amount.
However, where the court finds that the
defendant did not intend to produce and
was not reasonably capable of producing
the negotiated amount, the court shall
exclude from the guideline calculation
the amount that it finds the defendant
did not intend to produce and was not
reasonable capable of producing.
We have interpreted this note as requiring the sentencing
court to include the negotiated amount in the drug quantity
calculation unless it finds both that the defendant did not
have the intent to produce the amount, and that he lacked the
capacity to deliver it. United States v. Wihbey, 75 F.3d
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761, 777 (1st Cir. 1996); Muniz, 49 F.3d at 39. Application
_____
note 12 applies for the purposes of both the Sentencing
Guidelines and the statutory penalties under 21 U.S.C.
841(b). Muniz, 49 F.3d at 39-40 (indicating that five-year
_____
difference in statutory mandatory minimum was dependent upon
drug quantity calculated under application note 12); United
______
States v. Pion, 25 F.3d 18, 25 n.12 (1st Cir.) (noting that
______ ____
drug quantity finding under note 12 provides threshold
calculus for mandatory minimums), cert. denied, 115 S. Ct.
_____ ______
326 (1994).
Lindia contends that due process requires the
government to prove drug quantity beyond a reasonable doubt.
Drug quantity, however, is not an element of the offense of
conviction, 21 U.S.C. 846 and 841(a)(1), but is typically
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9
relevant only for determining the penalty. See 21 U.S.C.
___
841(b); United States v. Campbell, 61 F.3d 976, 979-80 (1st
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Cir. 1995) (citing United States v. Lam Kwong-Wah, 966 F.2d
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682, 685 (D.C. Cir.), cert. denied, 506 U.S. 901 (1992));
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United States v. Patterson, 38 F.3d 139, 143-44 (4th Cir.
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1994), cert. denied, 115 S. Ct. 1968 (1995). As such, drug
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quantity for purposes of 841(b) is determined by the
sentencing court under a preponderance-of-the-evidence
standard.5 See United States v. Barnes, 890 F.2d 545, 551
___ _____________ ______
n.6 (1st Cir. 1989) (noting that court, not jury, determines
drug quantity under 841(b)), cert. denied, 494 U.S. 1019
_____ ______
(1990); United States v. Lombard, 72 F.3d 170, 175-76 (1st
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Cir. 1995) (explaining that "once convicted, a defendant has
no right under the Due Process Clause to have his sentencing
determination be confined to facts proved beyond a reasonable
doubt," rather, applicable standard is preponderance of the
evidence); Whiting, 28 F.3d at 1304 and n.5 (reaffirming
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5. We note that, during the sentencing proceeding, Lindia
argued that the government must prove drug quantity beyond a
reasonable doubt, and that he had the right to a "jury trial
on the question of quantity." The court told Lindia, "either
you get a jury trial on the offense or not," remarked that
this request was essentially an attempt to withdraw the
guilty plea, and inquired if he sought to withdraw his plea.
After consulting with his counsel, Lindia stood by his plea.
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10
preponderant evidence standard); see also McMillan v.
___ ____ ________
Pennsylvania, 477 U.S. 79, 91-93 (1986).6
____________
Here, to assist in its determination of whether the
conspiracy included the 150-pound lot, the district court had
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6. Lindia cites McMillan v. Pennsylvania, 477 U.S. 79
________ ____________
(1986), in support of his argument that due process requires
proof of drug quantity beyond a reasonable doubt. McMillan,
________
however, expressed a due process concern where a state treats
an element of a criminal offense as a sentencing factor, thus
affording it less procedural safeguards. 477 U.S. at 84-88.
Here, the quantity of drugs in this federal offense is not
________
one of the elements of the offense, see supra, but a settled
___ _____
sentencing factor.
Moreover, this is not a case in which the drug
quantity finding is "a tail which wags the dog of the
substantive offense," McMillan, 477 U.S. at 88, thereby
________
possibly triggering a higher burden of proof on the
government. See United States v. Townley, 929 F.2d 365, 369
___ _____________ _______
(8th Cir. 1991) (suggesting but not deciding that due process
requires more than preponderant standard where inclusion of
uncharged drug amounts produced 18-level increase in base
offense level and seven-fold increase in sentencing range);
United States v. Kikumura, 918 F.2d 1084, 1102 (3d Cir. 1990)
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(holding that clear-and-convincing evidence standard applies
to justify a twelve-fold, 330-month departure from guideline
range median); cf. United States v. Lombard, 72 F.3d 170, 176
___ _____________ _______
(1st Cir. 1995) (holding that sentencing court may depart
downward where uncharged, enhancing conduct of acquitted
murder charge increased sentence from 262-327 months' to
mandatory life term).
Without expressing any opinion as to the holdings
of Townley and Kikumura, we note that, unlike those cases
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(and Lombard, as well), this case does not involve a
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sentencing enhancement or departure based on uncharged
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conduct. Here, Lindia pleaded guilty to every element of the
offense charging a marijuana conspiracy between December 1994
and January 31, 1995; and the sentence squarely punishes that
offense of conviction. See United States v. Harrison-
___ ______________ _________
Philpot, 978 F.2d 1520, 1524 (9th Cir. 1992) (holding
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inapplicable tail-wagging-dog concerns where disputed drug-
quantity pertained only to sentence for convicted conduct),
cert. denied, 508 U.S. 929 (1993). In short, this is simply
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not a case in which due process required anything more at
sentencing.
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the benefit of the videotape of the hotel meeting and
Lindia's own testimony at the sentencing hearing. The
transcript from the hotel meeting clearly reveals Lindia's
(and Aguirre's) stated desire and agreement to provide
Cunniff with 150 to 200 pounds of marijuana. The discussion
included details such as the identification of the shipment's
source, the capacity of the vehicle to transport the
marijuana, and the number of days for delivery. Thus, there
was sufficient, reliable evidence from which the court could
find, by a preponderance of the evidence, that the conspiracy
included the 150-pound lot.
To invoke the exception of application note 12, the
court needed to be persuaded that Lindia did not have the
intent and ability to produce the 150-pound lot. Wihbey, 75
______
F.3d at 777. The court was free to reject, as it did,
Lindia's claim that the discussion of the 150 pounds was mere
"puffing" to impress the buyer into future negotiations. See
___
Whiting, 28 F.3d at 1305 (refusing to disturb sentencing
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court's rejection of "puffing" claim); see also United States
___ ____ _____________
v. DeMasi, 40 F.3d 1306, 1322 n.18 (1st Cir. 1994) (noting
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that sentencing court's choice between supportable plausible
inferences cannot amount to clear error), cert. denied, 115
_____ ______
S. Ct. 947 (1995). Lindia did not prove to the court that he
lacked the intent and ability to produce the negotiated
amount; rather, based on the evidence presented, the court
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12
affirmatively found that he had both. We discern no clear
error in the court's finding that the 150 pounds of marijuana
were part of the conspiracy and, as such, were includable
under U.S.S.G. 2D1.1 to determine the offense statutory
maximum and Guideline sentencing range.7
B. Career Offender Status
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7. Lindia cites Neal v. United States, 116 S. Ct. 763
____ _____________
(1996), in support of his contention that application note 12
"is inconsistent with established law." In Neal, the court
____
held that stare decisis required it to adhere to a prior
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statutory interpretation pertaining to the sentencing
calculation of a certain drug, in the face of a newly
conflicting methodology set forth in the Guidelines. 116 S.
Ct. at 768-69. Here, Lindia cites no controlling sentencing
precedent with which application note 12 actually conflicts.
Rather, Lindia cites cases affirming the general principle
that the object of a conspiracy is an element of the offense
and must be proven beyond a reasonable doubt. See United
___ ______
States v. Bush, 70 F.3d 557, 561 (10th Cir. 1995) (holding
______ ____
that in a multiple-object conspiracy conviction, where it is
impossible to tell which controlled substance was the object
of conviction, defendant must be sentenced based on objective
yielding lowest offense level), cert. denied, 116 S. Ct. 795
_____ ______
(1996). Lindia contends that because specific intent to
effectuate the substantive offense must be proven for a
conspiracy conviction, application note 12 conflicts with
"long-established law for identifying the object of a
conspiracy" because it permits inclusion of a drug quantity
even if the defendant did not have the intent to produce that
quantity.
Here, unlike Bush, the indictment specifies only
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one controlled-substance object of the conspiracy: possession
with intent to distribute marijuana. Lindia's guilty plea
waived the government's burden to prove that object. Had the
case gone to trial, the government would not have had to
prove any specific amount of drugs for a conviction.
Campbell, 61 F.3d at 979. Thus, application note 12 is
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simply part of the Sentencing Commission's permissible
methodology for employing the penalty provisions pertaining
to quantity set forth in 841(b); it does not remove from
the government's burden an element of the conspiracy offense.
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The district court sentenced Lindia as a career
offender under 21 U.S.C. 994(h) due to two previous drug
distribution offenses and the instant offense. See U.S.S.G.
___
4B1.1. Lindia challenges this aspect of his sentence,
arguing first, that conspiracy to commit a controlled
substance offense should not trigger career offender status,
and second, that the court should not have counted as a
predicate offense a Rhode Island charge to which Lindia
pleaded nolo contendere.
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1. Conspiracy As Predicate Offense
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In 1994, this court joined a number of our sister
circuits in holding that, in U.S.S.G. 4B1.2, comment.
(n.1), the Commission properly designated conspiracy to
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commit a "crime of violence or a controlled substance
offense" as a triggering or predicate offense for career
offender purposes, even though conspiracy convictions are not
listed in the body of the pertinent guidelines or in 28
U.S.C. 994(h). United States v. Piper, 35 F.3d 611, 618-
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619 (1st Cir. 1994) (citing cases), cert. denied, 115 S. Ct.
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1118 (1995). On appeal, Lindia invites us to reconsider
Piper and join those circuits holding that conspiracies to
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commit the crimes defined in 994(h) do not fall within its
purview. See e.g., United States v. Mendoza-Figueroa, 28
___ ____ ______________ ________________
F.3d 766 (8th Cir. 1994), cert. denied, 116 S. Ct. 939
_____ ______
(1996). We decline the invitation and adhere to our
controlling precedent, thus affirming the use of the instant
conspiracy conviction to trigger the career offender
provisions.
2. The Rhode Island Nolo Contendere Plea
_________________________________________
In 1986, Lindia pleaded nolo contendere to a Rhode
____ __________
Island charge of possession with intent to deliver marijuana
("the 1986 charge"). On this plea, the state court adjudged
Lindia "guilty as charged and convicted" and gave him a
deferred sentence. Lindia argues that the 1986 charge is not
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a "conviction" under Rhode Island law and therefore cannot
constitute a predicate offense for purposes of career
offender status.
We have previously addressed the issue of whether
or not a nolo contendere plea and subsequent disposition in
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Rhode Island constitutes a "conviction" for federal
sentencing purposes. See United States v. Patrone, 948 F.2d
___ _____________ _______
813, 816-17 (1st Cir. 1991), cert. denied, 504 U.S. 978
_____ ______
(1992). Patrone involved sentencing under the armed-career-
_______
criminal statute, 18 U.S.C. 924(e), which specifically
provides that state law determines whether or not a state
_____
disposition constitutes a "conviction." Id. at 816; see 18
___ ___
U.S.C. 921(a)(20). By contrast, for purposes of the career
offender provisions, whether or not a state disposition
constitutes a "conviction" is determined by reference to
federal law and the Guidelines. See United States v. Pierce,
___ _____________ ______
60 F.3d 886, 892 (1st Cir. 1995) (analyzing Guidelines
provisions in concluding that state disposition on nolo
____
contendere plea constituted "conviction"), petition for cert.
__________ ________ ___ _____
filed, (Oct. 19, 1995) (No. 95-6474).
_____
After carefully analyzing the Guideline language
and commentary, we held in Pierce that the guilt-establishing
______
event, such as a guilty plea, trial, or plea of nolo
____
contendere, "determines whether and when there has been a
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countable `conviction'" for purposes of the Career Offender
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16
guideline. 60 F.3d at 892. We concluded that a Florida
offense, to which the defendant pleaded nolo contendere and
____ __________
that resulted in a "withheld adjudication," constituted a
countable "conviction" under the Career Offender guideline.
Id. Similarly, Lindia's nolo contendere plea, subsequent
___ ____ __________
adjudication, and deferred sentence also constitute a
"conviction" for career offender purposes. See also United
___ ____ ______
States v. Cuevas, 75 F.3d 778, 780-83 (1st Cir. 1996)
______ ______
(holding, under federal standards, that Rhode Island
disposition on nolo contendere plea is a "conviction" for
____ __________
immigration law purposes).
Moreover, there is little doubt that the 1986
charge would constitute a conviction under Rhode Island law.
In Patrone, we explained that under R.I. Gen. Laws 12-18-
_______
3(a), a nolo contendere plea will not constitute a
____ __________
"conviction for any purpose" if the court places the
defendant on probation and the defendant completes probation
without violating its terms. 948 F.2d at 816, n.1. Section
12-18-3(b) further provides, however, that subdivision (a)
"shall not apply to any person who is sentenced to serve a
term in the adult correctional institution or who is given a
suspended or deferred sentence in addition to probation." As
explained in Patrone, we interpret this provision to mean
_______
that a nolo contendere plea followed by a deferred sentence
____ __________
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(or other sentence described in 12-18-3(b)) constitutes a
"conviction" under Rhode Island law. See id.
___ ___
Lindia contends that our analysis in Patrone is
_______
inapplicable, reading much into 12-18-3(b)'s language: "or
deferred sentence in addition to probation." (emphasis
__ ________ __ _________
added). Lindia claims that he was not placed on "probation"
for the 1986 charge, rather, he "entered probationary status
based solely on an agreement with the Rhode Island Attorney
General." The record before this court is less than clear on
this issue. It is apparent, however, that although Rhode
Island law provides for a special circumstance in which a
nolo contendere plea and successful completion of probation
____ __________
will not constitute a conviction, that circumstance will not
apply where the defendant is also given a sentence of
imprisonment, or a suspended or deferred sentence. See R.I.
___
Gen. Laws 12-18-3. Thus, even assuming that Lindia was not
placed on probation, the controlling fact is that he was
given a deferred sentence, thus rendering the benefits of
12-18-3(a) inapplicable. Lindia cites to no other
applicable Rhode Island law in which a nolo contendere plea
____ __________
will not constitute a conviction.8
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8. R.I. Gen. Laws 12-19-19 provides, inter alia, that if
_____ ____
the court defers sentencing on a plea of guilty or nolo
____
contendere, it may actually impose a sentence only within a
__________
certain time period unless the defendant is otherwise
sentenced to prison during that period, in which case the
time for imposing sentence is extended. This section says
nothing about whether or not the plea, followed by the
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18
Under both federal and state law standards, the
district court properly counted Lindia's 1986 charge as a
conviction for purposes of the career offender adjudication.
C. Authority to Depart Downward Based on Overrepresentation
_____________________________________________________________
in Career-Offender Criminal History Category
____________________________________________
Lindia contends that the criminal history category
of VI, calculated pursuant to his career offender status,
significantly overrepresents his criminal history. The
district court ruled that nothing in the career-offender
statute, 28 U.S.C. 994(h), or in the Guidelines permitted a
downward departure on this basis.9 The First Circuit has
not yet decided the permissibility of such a departure in a
career offender case, see United States v. Morrison, 46 F.3d
___ _____________ ________
127, 129 (1st Cir. 1995), although many of our sister
circuits have answered this question in the affirmative, see
___
e.g., United States v. Spencer, 25 F.3d 1105 (D.C. Cir.
____ ______________ _______
1994); United States v. Rogers, 972 F.2d 489 (2d Cir. 1992);
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United States v. Bowser, 941 F.2d 1019 (10th Cir. 1991);
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United States v. Lawrence, 916 F.2d 553, 554 (9th Cir. 1990).
_____________ ________
Pursuant to the Sentencing Reform Act of 1984,
commencing at 18 U.S.C. 3551, 28 U.S.C. 991-998 (as
____________________
deferred sentence, constitutes a "conviction." Based on the
structure of 12-18-3, however, it is apparent that Rhode
Island treats nolo contendere pleas as convictions unless the
____ __________ ______
defendant meets the provisions of 12-18-3.
9. The court did not indicate in any way whether or not it
would depart if it had the authority to do so.
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amended), the United States Sentencing Commission promulgates
Sentencing Guidelines that establish presumptive sentencing
ranges for categories of defendants and offenses. Williams
________
v. United States, 503 U.S. 193, 195-96 (1992). Under 28
_____________
U.S.C. 994(h),
The Commission shall assure that the
guidelines specify a sentence to a term
of imprisonment at or near the maximum
term authorized for categories of
defendants in which the defendant is
eighteen years old or older and [has been
convicted of a violent crime or felony
drug offense and has a least two such
prior convictions].
This statute is meant to ensure that the Commission's
Guidelines provide that certain felony-recidivists receive
maximum authorized sentences. See United States v. Labonte,
___ _____________ _______
70 F.3d 1396, 1404 (1st Cir. 1995). The Career Offender
guideline, U.S.S.G. 4B1.1, is the Commission's
implementation of 994(h). See U.S.S.G. 4B1.1, comment.
___
(backg'd); Labonte, 70 F.3d at 1400-1401. The guideline
_______
establishes the career-offender presumptive sentencing range
by setting forth enhanced total offense levels -- by
reference to offense statutory maximums10 -- and provides
that "[a] career offender's criminal history category in
____________________
10. The First Circuit has upheld the Commission's
interpretation that "maximum term" in 994(h) is the
applicable unenhanced statutory maximum. See generally
___ _________
LaBonte, 70 F.3d 1396.
_______
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every case shall be Category VI," the highest category level.
U.S.S.G. 4B1.1.
The Sentencing Reform Act permits a sentencing
court to depart from a Guidelines' presumptive sentencing
range "only when it finds that `there exists an aggravating
or mitigating circumstance of a kind, or to a degree, not
adequately taken into consideration by the Sentencing
Commission in formulating the guidelines.'" Williams, 503
________
U.S. at 198 (quoting 18 U.S.C. 3553(b)); see also 28 U.S.C.
___ ____
991(b)(1)(B) (providing that the Commission's purposes
include "maintaining sufficient flexibility to permit
individualized sentences when warranted by mitigating or
aggravating factors not taken into account in the
establishment of general sentencing guidelines").
Accordingly, the Guidelines provide that "a case that falls
outside the linguistically applicable guideline's `heartland'
is a candidate for departure." United States v. Rivera, 994
_____________ ______
F.2d 942, 947 (1st Cir. 1993); see U.S.S.G. Ch.I, Pt.A,
___
intro. comment. (4)(b). Such cases are deemed "unusual,"
and, by definition, the Commission (with some exceptions) has
not "adequately" considered them within the meaning of
3553(b). Id. As Justice (then Chief Judge) Breyer
___
thoroughly explained in Rivera, the exceptions to this
______
principle are those several factors the Commission has
explicitly rejected as permissible grounds for departure.
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Id. at 948-949 (also explaining that encouraged departures
___
are likely "reasonable" while discouraged departures require
"unusual or special" circumstances); see also Williams, 503
___ ____ ________
U.S. at 200 (concluding that departure based on expressly
rejected factorconstitutesincorrect applicationofGuidelines).
The Application Instructions for the Guidelines,
set forth in U.S.S.G. 1B1.1, explain that after a
sentencing court determines the offense level, the
defendant's criminal history category, and the applicable
guideline range, it then refers to certain provisions for
"Specific Offender Characteristics and Departures" and "any
other policy statement or commentary in the guidelines that
might warrant consideration in imposing sentence." A
guidelines policy statement, U.S.S.G. 4A1.3, specifically
addresses the adequacy of a criminal-history category's
reflection of a defendant's past criminal conduct. See also,
___ ____
U.S.S.G. Ch.5, Pt.H, intro. comment. and 5H1.8 (stating
that criminal history is relevant in determining if sentence
should be outside applicable guideline range). Section 4A1.3
explicitly recognizes that a defendant's criminal history
category may "significantly over-represent[] the seriousness
of a defendant's criminal history or the likelihood that the
defendant will commit further crimes." U.S.S.G. 4A1.3,
(policy statement). In such cases, the sentencing court may
consider a downward departure. Id. We agree with our sister
___
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22
circuits (that have considered the issue) that a sentencing
court may invoke 4A1.3 to depart downward from the career-
offender category if it concludes that the category
inaccurately reflects the defendant's actual criminal
history, within the meaning of 18 U.S.C. 3553(b). See
___
e.g., United States v. Spencer, 25 F.3d 1105, 1113 (D.C. Cir.
____ _____________ _______
1994); United States v. Rogers, 972 F.2d 489, 494 (2d Cir.
______________ ______
1992); United States v. Bowser, 941 F.2d 1019, 1024 (10th
_____________ ______
Cir. 1991); United States v. Lawrence, 916 F.2d 553, 554-55
_____________ ________
(9th Cir. 1990).
The district court interpreted Congress's mandate
in 994(h) and the Commission's implementation, U.S.S.G.
4B1.1, as precluding departure on the basis of
overrepresentation in all cases in which the defendant is
assigned a criminal history category of VI under the Career
Offender guideline. Section 994(h), however, is directed to
the Commission's duty to formulate guidelines pertaining to
categories of defendants, not to sentencing courts faced with
individual defendants. As explained above, Congress and the
Commission have rejected rigid sentencing schemes by
empowering the sentencing court to consider factors that
might comprise an "unusual" case. The Commission has not
designated as a "forbidden departure" the overrepresentation
of a criminal history category in career offender cases, see
___
Rivera, 994 F.2d at 948-49, and "there is nothing unique to
______
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23
career offender status which would strip a sentencing court
of its `sensible flexibility' in considering departures."
Rogers, 972 F.2d at 493.
______
A district court that considers numerous
Guidelines cases has a "special competence" to determine the
"ordinariness" or "unusualness" of a particular case.
Rivera, 994 F.2d at 951. When faced with a departure motion
______
in a career-offender case, as in other cases, the court's
experience and unique perspective will allow it to decide if
the case before it falls outside the guideline's "heartland,"
warranting departure. See Rivera, 994 F.2d at 952 (holding
___ ______
that appellate court reviews "unusualness" determination with
"respect" for sentencing court's "superior `feel' for the
case" (citation omitted)). Because the district court in
this case did not consider whether or not the career-offender
criminal history category overrepresented Lindia's
circumstances, so as to make his case "unusual," we remand
for its determination of this issue.11
III.
III.
____
Conclusion
Conclusion
__________
For the foregoing reasons, we affirm in part,
______
vacate in part and remand for proceedings consistent with
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____________________
11. The government, both in its brief and at oral argument,
conceded that the court had the authority to depart on this
basis and stated that, should we agree, remand for
resentencing would be appropriate.
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this opinion.
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