UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1020
UNITED STATES OF AMERICA,
Appellee,
v.
PETER B. ROBERTS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Cyr, Boudin and Stahl,
Circuit Judges.
Diana L. Maldonado, Assistant Federal Defender, Federal Defender
Office, with whom Owen S. Walker, Chief Federal Defender, was on brief
for appellant.
Jeanne M. Kempthorne, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for the United
States.
October 27, 1994
BOUDIN, Circuit Judge. Peter C. Roberts pled guilty on
September 24, 1993, to a 16-count indictment charging him
with 15 counts of theft of mail by postal employee and one
count of access device fraud. 18 U.S.C. 1709, 1029(a)(2).
A sentencing hearing was conducted and sentence was imposed
on December 17, 1993. In the course of the hearing, the
district court computed the total offense level as 12, see
U.S.S.G. 2B1.1, 2F1.1, and found that Roberts was in
criminal history category II. The court imposed a 15-month
sentence of imprisonment, which is midway in the guideline
range of 12 to 18 months. On this appeal, Roberts does not
contest the total offense level assigned to him but does
dispute his criminal history category.
The district court determined Roberts' criminal history
category by assigning Roberts one criminal history point for
a 1992 state court guilty plea to charges of embezzlement by
a fiduciary and larceny. See U.S.S.G. 4A1.1(c). A second
point was assigned because in 1986, Roberts had been charged
in Massachusetts state court with operating a motor vehicle
under the influence of alcohol and operating to endanger;
both charges were continued by the state court without a
finding, upon Roberts' admission to sufficient facts to
sustain a finding of guilt. The second criminal history
point was sufficient to push Roberts into category II. See
U.S.S.G. Sentencing Table.
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The main dispute on this appeal centers around the
following guidelines provision contained in the paragraph
that provides definitions and instructions for computing
criminal history:
Diversion from the judicial process without a
finding of guilt (e.g., deferred prosecution) is
not counted. A diversionary disposition resulting
from a finding or admission of guilt, or a plea of
nolo contendere, in a judicial proceeding is
counted as a sentence under 4A1.1(c) even if a
conviction is not formally entered, except that
diversion from juvenile court is not counted.
U.S.S.G. 4A1.2(f). The issue is how this provision applies
to the disposition of the charges against Roberts in 1986 by
a continuance based on admission to sufficient facts to
sustain a finding of guilt.
The government has maintained throughout that Roberts'
admission to sufficient facts led to a "diversionary
disposition resulting from a finding or admission of guilt .
. . in a judicial proceeding," U.S.S.G. 4A 1.2(f), and the
district court agreed. Roberts, supported by United States
v. Kozinski, 16 F.3d 795 (7th Cir. 1994), says that there was
no finding or admission of "guilt," so that the outcome is
governed by the first sentence of the quoted paragraph or, in
any event, does not fall within the second.1 We regard the
1Roberts also argued in the district court that
operating to endanger is an offense for which no points are
awarded even if there is an admission of guilt, see U.S.S.G.
4A1.2(c)(1), but Roberts agrees that this does not matter
because driving under the influence is counted where an
admission of guilt occurs. See U.S.S.G. 4A1.2, comment.
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issue as a close one that, for reasons shortly to be
explained, cannot be settled definitively on this record.
The Massachusetts practice that gave rise to the
disputed disposition is a composite of procedures that has
been modified several times.2 As matters stood when
Roberts' case was considered in 1986, Massachusetts afforded
a defendant facing charges in the state district court with
several options; one of these options allowed the defendant
to obtain a bench trial ("the first tier") and then, if
unhappy with the outcome, to appeal to obtain a de novo trial
in the same court before a six-person jury ("the second
tier"). See Commonwealth v. Duquette, 438 N.E.2d 334 (Mass.
1982). At the first tier, the defendant could also choose to
forego a bench trial and advance to the second tier by
admitting to sufficient facts to warrant a finding of guilt.
Duquette, 438 N.E.2d at 338.
It appears that often in such instances a case was not
advanced to the second tier but instead continued without a
formal finding of guilt or innocence. In conjunction with
the continuance, the court imposed conditions, such as
supervision by a probation officer, restitution, or (as in
(n.5).
2The procedure was altered substantially in 1973 by
statute and again by case law in 1982. Commonwealth v.
Duquette, 438 N.E.2d 334 (Mass. 1982). Recently
Massachusetts has abolished the de novo system. Compare
Mass. Gen. L. ch. 278, 18 (1981) with id. (1994 supp.).
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this case) submission to an abuse treatment program.
Technically, where a case was continued without a finding,
there was no final disposition and therefore no appeal, de
novo or otherwise.3 On the other hand, it appears that a
dissatisfied defendant could insist on a formal disposition
and exercise his or her right to a trial de novo, expunging
the first-tier disposition. See Mann v. Commonwealth, 271
N.E.2d 331, 332-33 (Mass. 1971).
Roberts' argument in this case starts with the guideline
language imposing criminal history points where a
diversionary disposition results from "a finding or admission
of guilt . . . in a judicial proceeding . . . ." U.S.S.G.
4A1.2(f). There is no evidence that the judge in Roberts'
1986 proceeding made a formal finding of guilt. There is
also no indication that Roberts made an "admission of guilt"
in the sense of pleading guilty or using the word "guilty" or
saying "yes" when asked whether he admitted his guilt. This,
says Roberts, means that under the guideline language no
criminal history points can be assigned for the 1986
disposition.
This literal approach was apparently persuasive to the
Seventh Circuit in Kozinski, 16 F.3d at 811-12. Under local
3Later if the defendant satisfied the conditions, the
charge or charges would be dismissed. This is apparently
what happened in Roberts' case, but the dismissal itself is
not claimed to erase Roberts' admission.
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law, an Illinois state court may defer prosecution and impose
supervision either if the defendant pleads guilty or if he or
she stipulates to "facts supporting the charge or a finding
of guilt." Id. at 812. The Seventh Circuit said summarily
that the latter stipulation "does not in any way equate with
an admission of guilt or an adjudication of guilt" and, under
the sentencing guidelines, it amounts to diversion from the
judicial process "without a finding of guilt (e.g., deferred
prosecution)" for which no criminal history points may be
awarded. Id. Compare United States v. Hines, 802 F. Supp.
559 (D. Mass. 1992) (reaching the opposite result).
In this court, the government takes the view that
Kozinski was wrongly decided, although its brief makes a
half-hearted attempt to distinguish the case. We agree that
the phrase "admission of guilt" does not have so clear and
precise a meaning as to foreclose its extension to a
defendant's admission to sufficient facts to warrant a
finding of guilt. The guideline by its terms uses the word
"admission" and does not require a formal plea of guilty,
U.S.S.G. 4A1.2; and the commentary speaks of counting
diversionary dispositions if they involved "an admission of
guilt in open court." Id. comment. (n.9). More important,
the guideline has a purpose that helps us decide disputes
about ambiguous language.
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In determining criminal history points, the sentencing
guidelines impose points automatically where there has been
an "adjudication of guilt," U.S.S.G. 4A1.2(a)(1), but
merely permit the trial court to depart where the court
determines that the defendant's criminal history category"
does not adequately reflect the seriousness of the
defendant's past criminal conduct . . . ." U.S.S.G. 4A1.3.
This preference for adjudications of guilt presumably
reflects the desire to fasten on what can readily be proved
and the reasonable assurance that one who has pled guilty or
been found guilty did commit the prior crime in question.
Cf. Fed. R. Evid. 609 (allowing convictions to be used for
impeachment).
In Massachusetts an admission to sufficient facts is
apparently recorded with about the same formality as a plea,
see Mass. R. Crim. P. 12(a)(3), and so satisfies the readily-
proved criterion. Whether an admission to sufficient facts
adequately assures that the defendant committed the prior
crime in question may be a closer question. There are two
different reasons for concern. Both exist only where the
defendant's admission to sufficient facts occurs at the first
tier of the process, but that is where Roberts' admission did
occur.
The first concern is that a defendant who has available
a trial de novo, even after the admission to sufficient
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facts, may have so little invested in the admission as to
make it unreliable as an admission of guilt. Evidently, many
defendants use the continuance and admission procedure to see
if the condition imposed is so light as to make the matter
not worth contesting. Where the offense carries little moral
opprobrium and where the penalty is extremely light, one
might question whether a defendant's admission to sufficient
facts creates an overwhelming likelihood that the defendant
has done the deeds to which he or she admitted.
But this same doubt exists wherever a defendant plea
bargains for a light sentence and thereafter pleads guilty.
In that instance, there would be an admission of guilt within
the literal language of the guidelines, and we do not think
that a court would disregard the admission of guilt merely
because the defendant might have pled for opportunistic
reasons. The guidelines embody all manner of compromises. A
defendant who commits a new crime after creating a prior
criminal record has fair warning that the record may haunt
him or her in sentencing, absent quite extraordinary
circumstances.
The second concern, less easily overcome, relates to
process. In Duquette, the Supreme Judicial Court made clear
that an admission to sufficient facts, where it occurs at the
second tier, must be treated with a formality that makes it
almost indistinguishable from a guilty plea. There are
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required warnings: the judge must "prob[e] the defendant's
understanding," and must "satisfy himself that there is a
factual basis for a finding of guilty." 438 N.E.2d at 342.
Where such an admission to sufficient facts occurs and is
accepted at the second tier, we think that the defendant has
in substance admitted to his guilt.
But Duquette imposed these formalities because at the
second tier an admission to sufficient facts has the same
consequences as a plea of guilty and cannot be wiped out by a
de novo appeal. Id. at 342. The court said that it was not
imposing these requirements at the first tier where an
admission to sufficient facts could be treated more
informally. Id. But it did not say how much more informally
and, surprisingly, we have not discovered anything in the
briefs, the record, or the cases or treatises cited to us
that explains in any detail how a first tier admission to
sufficient facts actually works in the courtroom. How it
works matters.
Perhaps, as in a typical federal court guilty plea, the
prosecutor gives a recitation of what the government would
prove, and the defendant expressly accepts the government's
version of events (possibly with qualifications), and the
judge then determines that the admitted facts if proved would
constitute the offense. This sequence, or any other that
achieved the same effect, would give reasonable assurance
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that the defendant had confessed to certain events and that
the events constituted a crime. That, in our view, would
make the admission effectively an admission of guilt under
the guidelines.
But in the hard-pressed conditions of a busy first-
instance court, it is easy to imagine procedures that would
give far less assurance. For aught we can tell, the
prosecutor and the defendant or his counsel may do little
more than tell the judge that the parties have agreed to
dispose of the matter by a continuance, admission to
sufficient facts, and a treatment program. There would be
nothing reprehensible about such a procedure; but it would
give one little confidence that the defendant had admitted to
a crime. Indeed, it would approach the "[d]iversion from the
judicial process without a finding of guilt" that the
guidelines say is "not counted." U.S.S.G. 4A1.2(f).
It is the government that is seeking to assign the extra
criminal history point to Roberts and it therefore carries
the burden of showing whatever facts are needed to justify
the point. Here Roberts did not in formal terms admit his
"guilt," and it is the government that needs to show that
what happened in 1986 was in substance an admission of guilt.
Thus, we think that the necessary details of the
Massachusetts procedure are for the government to prove,
whether by showing what actually happened to Roberts or by
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showing a regular course of practice in first-tier
proceedings.
Whatever evidence the government may offer, Roberts is
free to contradict it. In particular, if the government
relies on evidence of general practice, Roberts should be
free in our view to offer evidence that the general practice
was not followed in his case and that what happened to him
was inadequate to constitute an admission of guilt. Our
experience with the admission to sufficient facts is too
limited to treat general practice as irrebuttable.
In this case the government has not yet carried its
initial burden. It is true that the government appended to
its brief a detailed set of state district court procedures,
adopted after Duquette, for continuances without a finding
and for admissions to sufficient facts. Massachusetts
District Court, Standards of Judicial Practice: Sentencing
and Other Dispositions, Standards 3:00 to 3:04 (September
1984). But these procedures resemble what Duquette required
for second-tier admissions and we have no idea whether or to
what extent they are designed to, or do in fact, describe
first-tier admissions. Enough may turn on this issue that we
are not willing merely to assume that these procedures do
occur in cases like Roberts.
We have noted, but do not regard as dispositive, other
case law language and analogies offered by both sides. For
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example, the government thinks that Roberts' admission would
comprise a conviction under immigration regulations, see
Molina v. INS, 981 F.2d 14, 18 (1st Cir. 1992), while Roberts
points to Massachusetts caselaw limiting the collateral
consequences of an admission to sufficient facts. E.g.,
Santos v. Director of Division of Employment Security, 498
N.E.2d 118, 119 (Mass. 1986). However, the concerns we have
already addressed are the ones we think are of primary
importance to a reasonable construction of the guideline in
question.
The government asserts that even if we hold against it
on the criminal history issue, we should still affirm
Roberts' sentence. It points out that were Roberts assigned
to criminal history category I, the 15-month sentence
actually imposed would be within the 10-to-16-month
imprisonment range provided for a defendant who has an
offense level of 12 and a criminal history category of I.
The government suggests that the district judge's choice of a
sentence above the minimum in this case and his remarks at
Roberts' sentencing strongly suggest that he would have
sentenced Roberts to 15 months' imprisonment regardless of
whether Roberts fell in category I or category II.
There are certainly occasions on which a sentencing
court's comments make it clear that the judge would impose
the same sentence even if a specific issue as to offense
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level or criminal history category were resolved differently.
Sometimes judges say so explicitly; in other instances, the
court's remarks or other circumstances may confirm that the
sentence would have been precisely the same regardless of the
finding on that issue. Where we are certain that the
sentence would have been the same, we normally treat a
dispute about such a finding as harmless, and affirm even if
we think the finding error. See generally Williams v. United
States, 112 S. Ct. 1112, 1120 (1992).
In this case, the district court might well have imposed
the same sentence whether Roberts had been assigned to
category I or category II, but we are not certain enough to
avoid a remand. The choice of sentence is usually within a
permissible guideline range based primarily on the individual
characteristics of the crime and the defendant's behavior.
But nothing prevents a sentencing judge from being influenced
by the judge's sense that the case calls for a sentence
toward the top or bottom or middle of the range, whatever
that range may be.
On remand, the district court is free to determine that
the 15-month sentence imposed on Roberts as a category II
defendant is also the proper sentence if Roberts is deemed a
category I defendant. In that event the district court can
reimpose the same sentence and the court need not determine
whether criminal history category I or II is correct.
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Nevertheless, in that situation we think that Roberts'
sentencing record could not describe him as having a criminal
history record higher than category I.
If instead the district court concludes that its
original sentence would or might be altered if Roberts were
assigned to category I, then the government may adduce facts
that would allow the district court to determine that the
first-tier admission to sufficient facts was the effective
equivalent of a guilty plea. Although the government here
did not offer such proof in the district court, we think that
it should be free to do so on remand. The interpretation of
the guideline presents a close question on which this court
has not previously spoken and the government's per se
position is by no means frivolous, see Hines, 802 F. Supp. at
564, even though we do not accept it in full. Conversely, on
remand the government is free not to offer proof and to
permit Roberts to be resentenced as a category I defendant.
The outcome in this case reflects our best reading of
the present guideline as applied to a peculiar procedure that
the guideline drafters did not expressly address. The
procedure itself may now be wholly obsolete in Massachusetts;
but the device of an admission to sufficient facts endures,
quite possibly with variations, in other jurisdictions. See
Annot., 4 A.L.R. 4th 147 (1981) (collecting cases). The
subject may be one that the Sentencing Commission could
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usefully address, either to clarify the existing guideline or
to improve it.
The sentence is vacated and the case remanded for
further proceedings consistent with this opinion.
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