United States v. Roberts

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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