USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 96-2159
UNITED STATES OF AMERICA,
Appellee,
v.
NELSON ROSALIO CORREA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
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Before
Selya, Circuit Judge,
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Coffin and Cyr, Senior Circuit Judges.
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Elizabeth A. Lunt, with whom Zalkind, Rodriguez, Lunt &
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Duncan were on brief, for appellant.
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Donald L. Cabell, Assistant United States Attorney, with
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whom Donald K. Stern, United States Attorney, was on brief, for
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appellee.
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May 29, 1997
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SELYA, Circuit Judge. Defendant-appellant Nelson
SELYA, Circuit Judge.
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Rosalio Correa challenges that part of his sentence which depends
upon the district court's allegedly erroneous computation of his
criminal history score. We first must resolve an issue that
divides the circuits. Once that is behind us, we detect no
miscalculation and therefore affirm the sentence.
I
I
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Background
Background
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We cull the largely undisputed facts from the plea
colloquy, the presentence investigation report, and the
transcript of the sentencing hearing. See United States v.
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Garcia, 954 F.2d 12, 14 (1st Cir. 1992); United States v. Dietz,
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950 F.2d 50, 51 (1st Cir. 1991).
A native of the Dominican Republic, Correa resided
legally in the United States for a short spell. That sojourn
ceased on January 5, 1994, when, after having been convicted of
various crimes committed between 1989 and 1993, he was deported.
We do not chronicle the complete compendium of Correa's criminal
capers, but confine ourselves to conveying the contours of
certain crimes that possess particular pertinence for present
purposes.
1. The February Offenses. On March 13, 1991, the
1. The February Offenses.
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Commonwealth of Massachusetts issued a criminal complaint (later
served by summons) which charged Correa, then 19 years of age,
with three counts of breaking and entering and one count of
larceny. See Mass. Gen. Laws ch. 266, 16A, 30 (1990). The
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2
charges arose from a spree that occurred on February 19, 1991; on
that date, Correa raided three separate automobiles parked in
Danvers, Massachusetts, and absconded with ill-gotten gain from
one.
2. The June Offenses. Some months later, Correa,
2. The June Offenses.
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still 19, was charged with falsifying his age to purchase
alcoholic beverages, in violation of Mass. Gen. Laws ch. 138,
34A (1991), and contributing to the delinquency of a child for
buying and serving alcohol to two boys, ages 12 and 15,
respectively, in violation of Mass. Gen. Laws ch. 119, 63
(1993). The infractions were alleged to have occurred on June 8,
1991, in Beverly, Massachusetts.
3. The State Court Disposition Hearing. On October
3. The State Court Disposition Hearing.
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28, 1992, Correa pled guilty in a state district court to all
charges arising from both incidents. With respect to the
February offenses, the court imposed a nine-month sentence on the
three breaking-and-entering counts and filed the larceny
conviction. With respect to the June offenses, the court filed
all the convictions.1
In due course, the government deported Correa. Little
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1In Massachusetts, after a plea of guilty in a criminal
case, "a judge, with the consent of the defendant, may place the
case on file rather than impose sentence immediately." DuPont v.
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Superior Court, 401 Mass. 122, 123 (1987). Although that is
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usually the end of the matter, the case thereafter "may at any
time be called up [by the court] and sentence may be imposed, or
some other final disposition made of it." Marks v. Wentworth,
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199 Mass. 44, 45 (1908). Hence, the defendant's right to appeal
is suspended for the length of time that the case remains on
file. See DuPont, 401 Mass. at 123; Commonwealth v. Delgado, 367
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Mass. 432, 438 (1975).
3
daunted, he reentered the United States unlawfully in 1995 and
found his way to Lynn, Massachusetts. The authorities eventually
apprehended him and pressed a charge of illegal reentry after
deportation. See 8 U.S.C. 1326 (1994). Correa pled guilty to
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this accusation in federal district court. The sentencing
proceeding that followed comprises the cynosure of this appeal.2
We set the stage. In applying the sentencing
guidelines, a nisi prius court, among other things, transposes
the defendant's criminal past into "criminal history points,"
thus obtaining a "criminal history score" which yields a
"criminal history category." See United States v. Emery, 991
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F.2d 907, 909-10 (1st Cir. 1993) (illustrating the process).
Since the guideline sentencing range (GSR) is derived from a grid
and is determined in a given case by correlating the defendant's
criminal history category with his adjusted offense level, see
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United States v. Diaz-Villafane, 874 F.2d 43, 47-48 (1st Cir.
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1989), criminal history points can profoundly affect the length
of a sentence.
This case typifies the phenomenon. In the course of
his sentencing calculations, Judge O'Toole treated the February
offenses as comprising one crime and the June offenses as
comprising another, unrelated crime. Hence, he assigned criminal
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2The district court apparently applied the November 1995
edition of the sentencing guidelines. See United States v.
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Harotunian, 920 F.2d 1040, 1041-42 & n.2 (1st Cir. 1990)
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(explaining that the guidelines in effect at the time of
sentencing control unless ex post facto considerations prohibit
their use). Thus, all references herein are to that edition.
4
history points for each. On that basis, Correa garnered a
criminal history score of 7, which placed him in criminal history
category IV. Had the judge treated the February and June
offenses as related rather than unrelated, or had he deemed the
June offenses unworthy of consideration, Correa's criminal
history score would have dropped by one point, placing him in
criminal history category III. At Correa's adjusted offense
level (19), the single criminal history point accounted for a
substantial increase in his GSR (which rose from 37-46 months to
46-57 months). See USSG ch. 5, Pt. A (sentencing table).
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Having added the disputed criminal history point and
fixed the GSR at 46-57 months, the judge then accepted the
government's recommendation, incorporated in the plea agreement,
that Correa be sentenced at the nadir of the applicable range.
Consequently, the court imposed a 46-month incarcerative
sentence. This appeal ensued. In it, the appellant contends
that the district court erred in adding the extra criminal
history point. He makes two arguments in support of this
contention. We treat these arguments sequentially.
II
II
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Related Cases
Related Cases
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The guidelines require the assessment of criminal
history points for "each prior sentence." USSG 4A1.1. But
there are exceptions. One such exception authorizes sentences
imposed in what the Sentencing Commission calls "related cases"
to be treated as a single sentence. See USSG 4A1.2(a)(2).
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5
Insofar as pertinent here, sentences are considered related "if
they resulted from offenses that . . . were consolidated for
trial or sentencing." Id., comment. (n.3). At sentencing,
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Correa argued unsuccessfully that the February and June offenses
fell within this safe harbor (and, therefore, should be deemed
related) because the state court had in effect consolidated them
for sentencing. Judge O'Toole rejected the notion that these
disparate offenses constituted a set of related cases.3 Correa
now presses this argument on appeal.
The standard of review in sentencing appeals ordinarily
is deferential. See 18 U.S.C. 3742(e) (1994); see also Dietz,
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950 F.2d at 52. Thus, "where there is more than one plausible
view of the circumstances, the sentencing court's choice among
supportable alternatives" is not clearly erroneous and a
reviewing tribunal cannot disturb it. United States v. Ruiz, 905
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F.2d 499, 508 (1st Cir. 1990). However, to the extent that an
alleged error involves the district court's interpretation of a
sentencing guideline, it presents a question of law warranting
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3In so ruling, the lower court relied on an application note
instructing that "[p]rior sentences are not considered related if
they were for offenses that were separated by an intervening
arrest (i.e., the defendant is arrested for the first offense
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prior to committing the second offense)." USSG 4A1.2, comment.
(n.3). The court repudiated United States v. Joseph, 50 F.3d 401
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(7th Cir.), cert. denied, 116 S. Ct. 139 (1995), and impliedly
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found that the summons Correa received for the February offenses,
which had been served before he committed the June offenses,
constituted the functional equivalent of an intervening arrest.
While this holding seems problematic, we need not resolve the
uncertainty. Here, the record plainly presents an alternative
ground for affirmance, and we are free to use that ground in lieu
of the trial court's rationale. See Hachikian v. FDIC, 96 F.3d
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502, 504 (1st Cir. 1996).
6
plenary review. See United States v. Santiago, 83 F.3d 20, 26
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(1st Cir. 1996); United States v. St. Cyr, 977 F.2d 698, 701 (1st
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Cir. 1992). So it is here.
In United States v. Elwell, 984 F.2d 1289 (1st Cir.
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1993), we intimated that a mere coincidence in timing, without
more, is not enough to justify treating convictions that do not
possess common antecedents as having been consolidated for
purposes of sentencing. See id. at 1296 n.7 (explaining that
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such convictions cannot be "deemed `constructively' consolidated
because of . . . [a] plea bargain and concurrent sentences")
(dictum). We now transform the Elwell adumbration into an
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express holding: at least in respect to offenses that are
temporally and factually distinct (that is, offenses which
occurred on different dates and which did not arise out of the
same course of conduct), charges based thereon should not be
regarded as having been consolidated (and, therefore, "related")
unless the original sentencing court entered an actual order of
consolidation or there is some other persuasive indicium of
formal consolidation apparent on the face of the record which is
sufficient to indicate that the offenses have some relationship
to one another beyond the sheer fortuity that sentence was
imposed by the same judge at the same time.
In so holding, we align ourselves with a number of our
sister circuits which have reached a substantially similar
conclusion. See, e.g., United States v. Patasnik, 89 F.3d 63, 74
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(2d Cir. 1996); Green v. United States, 65 F.3d 546, 548-49 (6th
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7
Cir. 1995), cert. denied, 116 S. Ct. 826 (1996); United States v.
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Allen, 50 F.3d 294, 298-99 (4th Cir.), cert. denied, 115 S. Ct.
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2630 (1995); United States v. Alberty, 40 F.3d 1132, 1134-35
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(10th Cir. 1994), cert. denied, 115 S. Ct. 1416 (1995); United
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States v. Klein, 13 F.3d 1182, 1185 (8th Cir. 1994); United
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States v. Garcia, 962 F.2d 479, 483 (5th Cir. 1992). By the same
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token, we reject the minority view embodied in United States v.
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Smith, 991 F.2d 1468, 1473 (9th Cir. 1993) (envisioning "no need
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for a formal consolidation order for cases to be `related' under
section 4A1.2").
We are cognizant that some may see insistence on a
formal indicium of consolidation, such as an order or a docket
entry, as arbitrary. But judicial inquiry into a defendant's
criminal past for sentencing purposes, properly conceived,
requires only a snapshot of the surface, not an archeological
dig. Thus, when a federal court is obliged to tabulate a
defendant's criminal history score for sentencing purposes,
limiting the requisite inquiry to the formal record the
indictment, the docket entries, the judgment of conviction, and
the like strikes the right balance. Moreover, it does so in a
manner that supplies needed uniformity while husbanding scarce
judicial resources.
This approach also is in keeping with the way in which
we have treated analogous matters. After all, when a federal
court looks to a prior state conviction in formulating its
sentencing calculus, the court most often characterizes the
8
previous conviction by means of a formal categorical approach,
restricting its examination to the legislature's definition of
the crime. See, e.g., Taylor v. United States, 495 U.S. 575,
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600-02 (1990); United States v. DeLuca, 17 F.3d 6, 8 (1st Cir.
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1994); United States v. De Jesus, 984 F.2d 21, 23 (1st Cir.
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1993). If the legislature's definition provides an inexact
construct, however, the court commonly bases its characterization
of the previous conviction on what is readily apparent from the
formal documents in the case, without delving more deeply into
the actual circumstances of the offense. See, e.g., Taylor, 495
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U.S. at 602 (permitting a sentencing court, when a categorical
approach fails, to consider the charging papers and jury
instructions to ascertain the contours of the particular prior
offense); United States v. Winter, 22 F.3d 15, 19 (1st Cir. 1994)
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(similar); United States v. Fiore, 983 F.2d 1, 3-4 & n.3 (1st
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Cir. 1992) (similar).
We are not disposed to deviate from this salutary
principle in interpreting the "related case" guideline, USSG
4A1.2(a)(2). Were we to do so, we would make criminal
sentencing already an operose task under the guidelines a
more cumbersome and time-consuming endeavor with little
corresponding benefit. Criminal history, by definition, deals
with bygone events which often happened in the distant past, or
in a remote jurisdiction, or both. Requiring a federal judge to
go behind the formal record and excavate the details of what
transpired in each instance would impose an onerous burden,
9
freighted with unusual evidentiary difficulties. We think that a
categorical rule, analogous to that sponsored by the Supreme
Court in Taylor, better serves the interests of justice.
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In the instant case, the record is pellucid that the
state court judge never entered an order consolidating the
complaints, which embodied the February and June offenses, for
sentencing or for any other purpose. To the exact contrary, the
complaints embodying these two sets of offenses were at all times
handled under separate docket numbers, and there is no indication
that the state court judge ever gave a moment's thought to
whether consolidation was (or was not) desirable. Moreover, the
appellant concedes that the offenses occurred in different places
at different times and that they arose in widely divergent
factual contexts. Last, but not least, this is not a situation
in which the court of original jurisdiction imposed a single
sentence spanning a series of discrete offenses. Rather, the
court imposed a prison sentence on the breaking-and-entering
convictions (the main component of the February offenses) but did
not include the convictions on the June offenses as part of the
underpinning for that sentence. Instead, the court filed those
charges, in effect reserving the right to call up the file and
impose a sentence at a future date. See supra note 1.
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We will not paint the lily. Because there were no
formal indicia of consolidation, the February offenses were not
"related" to the June offenses under a proper reading of the
federal sentencing guidelines. Hence, the appellant's principal
10
assignment of error fails.
III
III
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Juvenile Status Offenses
Juvenile Status Offenses
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The appellant's fallback position is that, even if the
June offenses are not "related" to the February offenses in the
requisite sense, they nonetheless are juvenile status offenses
and thus not countable in compiling his criminal history score.
See USSG 4A1.2(c) (ordaining that the sentencing court should
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"never count . . . [j]uvenile status offenses" when tabulating
criminal history points). The district court rejected this
asseveration. So do we.
The sentencing guidelines do not define the term
"juvenile status offense," although they offer illustrations of
crimes which, like juvenile status offenses, are excludable in
computing a defendant's criminal history score. See USSG
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4A1.2(c)(2). In determining whether a prior conviction falls
within the ambit of section 4A1.2(c)(2), courts traditionally
"look to the substance of the underlying state offense." United
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States v. Unger, 915 F.2d 759, 763 (1st Cir. 1990). Moreover,
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courts can derive some guidance from a mirror image provision in
the guidelines which encourages the assignment of criminal
history points for a crime committed by a defendant before
reaching the age of 18 if he or she perpetrated the crime within
the five-year period immediately preceding the occurrence of the
offense of conviction. See USSG 4A1.2(d)(2). This provision's
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primary purpose is to promote points for past crimes that predict
11
criminal proclivity.
Considering together the caselaw and the actual
guideline provisions, we conclude that a crime constitutes a
juvenile status offense only if three elements coalesce: (1) the
defendant committed the crime as a juvenile, see USSG 4A1.2,
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comment. (n.7); (2) the conduct would have been lawful if engaged
in by an adult, see United States v. Ward, 71 F.3d 262, 263-64
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(7th Cir. 1995); and (3) the offense is not serious, see United
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States v. Hardeman, 933 F.2d 278, 281-83 (5th Cir. 1991). When
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all is said and done, this third element, which necessitates the
appraisal of gravity for a given crime, is quintessentially a
judgment call. Still, the illustrations of exempted offenses
supplied by the Sentencing Commission, e.g., truancy,
hitchhiking, loitering, vagrancy, and minor traffic infractions,
USSG 4A1.2(c)(2), furnish a valid point of comparison. The
enumerated offenses all possess a bland quality that helps to
distinguish them from more substantial transgressions: for
example, one common characteristic is that they provide little,
if any, indication of a person's proclivity to commit future,
more serious crimes.
In applying this paradigm to the June offenses, we note
first that either of the two component crimes falsifying one's
age to purchase alcohol and contributing to the delinquency of a
child is, if not an exempted offense, independently sufficient
to warrant the bestowal of the challenged criminal history point.
Since contributing to the delinquency of a child is arguably the
12
more weighty of the crimes, we focus exclusively on it.
The appellant flunks the first segment of the test:
the victims may have been juveniles, but in ascertaining whether
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a crime is (or is not) a juvenile status offense, it is the
perpetrator's age, not the victim's age, that matters and
Correa was 19 years old when he committed the act. Accordingly,
he was not a juvenile. See USSG 4A1.2, comment. (n.7) (defining
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a juvenile for this purpose as a person under the age of 18). He
also fails to satisfy the second requirement: contributing to
the delinquency of a child is conduct which state law
criminalizes regardless of the perpetrator's age. See Mass. Gen.
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Laws ch. 119, 63.
Since the appellant's argument depends on his ability
to establish three factors, and the first two are lacking, we
need go no further.4 It is abundantly clear that the district
court did not err either in declining to classify the crime of
contributing to the delinquency of a child as a juvenile status
offense or in assessing an extra criminal history point for it.
Affirmed.
Affirmed.
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4Because the appellant's argument stalls at the first two
stages of the test, we need not decide whether the offense might
be written off either as youthful folly or as lacking predictive
value vis- -vis future lawlessness (and, therefore, pass muster
at the third stage of the test).
13
