United States v. Abrams

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit No. 97-2303 UNITED STATES, Appellee, v. LEON ABRAMS, A/K/A LEON L. ABRAM, A/K/A ANTHONY HALL, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. William G. Young, U.S. District Judge] Before Torruella, Chief Judge, Wellford, Senior Circuit Judge, and Lynch, Circuit Judge. Tracy A. Miner, by appointment of the Court, Michael F. Connolly, John F. Sylvia, Andrew Nathanson and Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. on brief, for appellant. Donald K. Stern, United States Attorney, and Ben T. Clements, Assistant United States Attorney, on brief, for appellee. August 3, 1998 Per Curiam. Following a jury trial, Leon Abrams was convicted of possessing with intent to distribute cocaine base in violation of 21 U.S.C. 841(a)(1), and of being a felon in possession of a firearm in violation of 18 U.S.C. 922(g). At the time of his conviction, Abrams qualified as a career offender under U.S.S.G. 4B1.1. However, Abrams sought and obtained continuances prior to his sentencing in order to collaterally attack his prior state court convictions. Eventually a Massachusetts trial court vacated Abrams' 1984 manslaughter conviction on grounds unrelated to guilt. As a result of that decision, Abrams no longer qualified as a career offender under 4B1.1 during his sentencing. Despite the fact that Abrams' underlying manslaughter conviction had been vacated, the district court departed upwards in sentencing him, from 78 to 204 months, pursuant to a U.S.S.G 4A1.3 and 5K2.0 criminal history departure. The district court concluded that Abrams' criminal history category and sentencing guideline range did not adequately reflect his status as a de factocareer offender. On appeal, Abrams argues that this departure was unwarranted because the court lacked "reliable information" that Abrams committed the 1984 manslaughter. However, after Abrams filed his brief in this court, the Massachusetts Appeals Court reversed the trial court's vacation of his 1984 manslaughter conviction, and reinstated the conviction. See Commonwealth v. Abrams, 692 N.E.2d 532 (Mass. App. Ct. 1998). That decision has not been appealed. Thus, there is now a valid and final conviction for every crime on which the district court based its upward departure. If Abrams were re-sentenced in this case, it would be under U.S.S.G. 4B1.1., because the brief window of time during which he did not technically qualify as a career criminal is now closed. The district court would be required to sentence Abrams to at least 210 months, six more than his current sentence. Thus, Abrams' appeal has been effectively mooted by the reinstatement of his 1984 manslaughter conviction. In any event, Abrams' argument that the district court lacked "reliable information" that Abrams committed the 1984 manslaughter is rejected upon our taking judicial notice of the intervening Commonwealth v. Abrams, 692 N.E.2d 532 (Mass. App. Ct. 1998). Abrams' sentence is therefore affirmed.