United States Court of Appeals
For the First Circuit
No. 00-2325
UNITED STATES OF AMERICA,
Appellee,
v.
FELIX MATEO, A/K/A JOHNNY RODRIGUES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
James Patrick Bardsley on brief for appellant.
James B. Farmer, United States Attorney, and Michael J.
Pelgro, Assistant United States Attorney, on brief for appellee.
November 9, 2001
SELYA, Circuit Judge. Relying primarily upon
developments that occurred after he had filed his notice of
appeal, defendant-appellant Felix Mateo invites us to vacate the
121-month incarcerative sentence that the district court imposed
for his admitted involvement in drug-trafficking activities.
Finding the new matter irrelevant and discerning no error in the
court's sentencing determinations, we decline the invitation.
Our standard of review in this sentencing appeal is
familiar: we scrutinize the district court's legal
determinations (including its application of the sentencing
guidelines) de novo and check its factual determinations for
clear error. United States v. St. Cyr, 977 F.2d 698, 701 (1st
Cir. 1992). In carrying out this function, we glean the
pertinent facts from the record of the change-of-plea and
disposition hearings, supplemented by the presentence
investigation report (PSI Report). See United States v. Dietz,
950 F.2d 50, 51 (1st Cir. 1991).
In the spring of 1998, the Drug Enforcement
Administration (DEA) began to ponder the appellant's role in
drug trafficking in and around Dorchester, Massachusetts. This
aspect of the DEA's investigation culminated in the appellant's
arrest on January 5, 1999. Two days later, a federal grand jury
indicted the appellant and several confederates for a wide
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variety of drug-trafficking offenses. The charges against the
appellant included possession of cocaine, cocaine base, and
heroin with intent to distribute, as well as conspiracy. See 21
U.S.C. §§ 841(a)(1), 846.
The appellant originally maintained his innocence, but
changed his plea on January 27, 2000. The probation department
prepared the PSI Report. It determined that the combination of
drugs attributable to the appellant resulted in a base offense
level of 34, and then applied a three-level credit for
acceptance of responsibility. See USSG §3E1.1. It also noted
the applicability of a ten-year minimum mandatory sentence,
given the quantity of drugs involved. See 21 U.S.C. §
841(b)(1)(A)(iii). The appellant did not challenge any of these
subsidiary determinations.
Even so, the PSI Report was not entirely
uncontroversial. It concluded that the appellant, who
previously had been convicted in a Massachusetts state court on
a narcotics charge, was still under a criminal justice sentence
related to that charge when he committed the instant offenses.
This finding dictated the assessment of two additional criminal
history points, see USSG §4A1.1(d), which not only sufficed to
move the appellant into a higher criminal history category (CHC)
but also rendered him ineligible for the so-called "safety
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valve" provision, USSG §5C1.2 (and, thus, for relief from the
mandatory minimum sentence).1
The district court convened the disposition hearing on
August 25, 2000. The appellant argued that he should be in a
lesser CHC (and, accordingly, eligible for the safety valve).
In mounting this argument, he asseverated that the supposed
basis for the additional criminal history points — the existence
of an outstanding probation violation warrant stemming from his
prior state-court conviction — was insupportable because the
warrant had been issued erroneously. The district court
rejected this reasoning; concluded that the warrant was, indeed,
outstanding; ruled that the appellant therefore had committed
the offenses of conviction while under a criminal justice
sentence; and increased the appellant's criminal history score.
The court then used the higher CHC to fix the guideline
sentencing range (121-151 months) and imposed a sentence at the
nadir of the range.
1
We have explained before how the safety valve operates.
E.g., United States v. Ortiz-Santiagó, 211 F.3d 146, 150-51 (1st
Cir. 2000). We also have explained how the addition of criminal
history points can affect the duration of a defendant's
sentence. E.g., United States v. Correa, 114 F.3d 314, 316 (1st
Cir. 1997); United States v. Diaz-Villafane, 874 F.2d 43, 47-48
(1st Cir. 1989). It would serve no useful purpose to rehearse
those explanations here.
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In this venue, the appellant concentrates his fire on
the lower court's determination that he was under a criminal
justice sentence when he committed the offenses of conviction —
a determination that adversely affected his guideline sentencing
range and, in the bargain, rendered him ineligible for relief
from the ten-year mandatory minimum. To explain the etiology of
the determination, we must retreat to April 11, 1995. On that
date, the appellant appeared before the West Roxbury District
Court on a heroin distribution charge. The court imposed a
suspended sentence, but placed him on probation for two years
(until April 11, 1997).
Despite this show of leniency, the appellant apparently
failed to meet with his probation officer after April of 1996.
This lapse interrupted the scheduled termination of his
probation and, on June 4, 1997, the state court issued a default
warrant for the appellant's apprehension. Because the
appellant's probation had not been terminated and the default
warrant was still outstanding on the date that he appeared for
sentencing in the instant case, Judge Saris treated him as being
under an unfulfilled criminal justice sentence and boosted his
criminal history score accordingly. See USSG §4A1.1(d)
(directing the district court to "[a]dd 2 points [to the
defendant's criminal history score] if the defendant committed
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the instant office while under any criminal justice sentence,
including probation, parole, supervised release, imprisonment,
work release, or escape status"); id. §4A1.2(m) (stating that an
outstanding warrant qualifies as a criminal justice sentence for
purposes of section 4A1.1(d) "even if [the underlying] sentence
would have expired absent such warrant"); see also id.
§4A1.1(d), comment. (n.4) (explaining the effect of an
outstanding probation violation warrant in language identical to
that used in section 4A1.2(m)).
Subsequent to sentencing, the appellant filed a notice
of appeal. He also moved to rearrange the legal landscape,
returning to the West Roxbury District Court and filing a motion
to terminate probation. On January 10, 2001, a state judge
granted the motion and ended the appellant's probation "nunc pro
tunc to April 11, 1997." Emphasizing this order and asserting
that the default warrant never should have issued, the appellant
assigns error to the district court's determination that he was
under a criminal justice sentence at the time he perpetrated the
offenses of conviction.
It is beyond cavil that, in the typical case, a
defendant who commits a crime while subject to an outstanding
violation warrant is deemed to be under a criminal justice
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sentence for purposes of USSG §4A1.1(d).2 See United States v.
Anderson, 184 F.3d 479, 480-81 (5th Cir. 1999), cert. denied,
528 U.S. 1091 (2000). That is true even if the underlying
sentence, as originally pronounced, would by its terms have
expired but for the violation. See United States v. Camilo, 71
F.3d 984, 986 (1st Cir. 1995); see also USSG §4A1.1(d), comment.
(n.4). The pivotal question, then, is whether the nunc pro tunc
order of the West Roxbury District Court somehow alters that
result. There are two basic reasons why it does not.
In the first place, the appellant, by resting his
argument on a matter that arose only after sentence was imposed
in the federal district court, seeks to invalidate the district
court's judgment on the basis of a proffer that he did not make
below (indeed, the nunc pro tunc order did not exist on the date
of the disposition hearing). We long have adhered to the
general principle that new matter may not be introduced for the
first time in the court of appeals, see, e.g., Smith & Wesson v.
United States, 782 F.2d 1078, 1084 (1st Cir. 1986); United
States v. Kobrosky, 711 F.2d 449, 457 (1st Cir. 1983), and we
see no reason to deviate from that general principle here.
2Of course, the prior sentence must otherwise be countable
toward the defendant's criminal history score. United States v.
Camilo, 71 F.3d 984, 987 (1st Cir. 1995). That condition does
not present a problem here.
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Indeed, the principle applies with particular force in
this instance. At the disposition hearing, defense counsel
suggested that he might attempt to secure a ruling from the West
Roxbury District Court as to the validity of the warrant, and
Judge Saris specifically invited him to return "within a year"
should anything significant occur.3 Notwithstanding this express
invitation, the appellant never brought the nunc pro tunc order
to the attention of the district court; rather, he attempted to
leap-frog that court and use the order as a weapon of appellate
advocacy. We will not honor that tactic: the checks and
balances inherent in our multi-tiered judicial system would be
set askew were we to do so.
In all events, under the federal sentencing guidelines
post-sentencing maneuvers ordinarily cannot be used as history-
altering devices. Consequently, even were we to consider the
nunc pro tunc order, the appellant would not be advantaged. A
defendant's CHC is to be calculated at the time of sentencing,
see United States v. Cox, 934 F.2d 1114, 1124 (10th Cir. 1991),
and nothing in the sentencing guidelines suggests that it should
be modified, after sentence has been pronounced, because of a
subsequent action taken by a state court.
3 The district court no doubt had in mind the filing of a
petition for post-conviction relief under 28 U.S.C. § 2255.
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We are left, then, with this scenario. When the
appellant appeared for sentencing in the instant case, his
state-court probationary term had not been concluded and a
default warrant was outstanding. On the face of things, the
appellant was under a prior unfulfilled criminal justice
sentence — a circumstance that constituted a proper predicate
for the assessment of two additional criminal history points.
See USSG §§4A1.1(d), 4A1.2(m). That ends the matter, for the
question of whether an individual is under a criminal justice
sentence for purposes of the sentencing guidelines is a question
of federal law, see Camilo, 71 F.3d at 987; United States v.
Renfrew, 957 F.2d 525, 526 (8th Cir. 1992) — and federal law
dictates that the district court take the state-court record as
it finds it.4
The appellant has a fallback position. He argues that,
leaving the nunc pro tunc order to one side, the state court
erred in issuing the default warrant, and that an erroneously
issued warrant should not be held against him. In Camilo, 71
F.3d at 987, we left open the question of whether defects in a
state warrant process might be considered by the sentencing
4While there may be exceptions for state-court convictions
obtained in violation of a defendant's Sixth Amendment right to
counsel, cf. Custis v. United States, 511 U.S. 485, 490-93
(1994), the appellant makes no such claim.
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court. Other courts, however, have held unequivocally that
(with possible exceptions not implicated here, see supra note 4)
the sentencing guidelines do not compel district courts to
inquire beyond the face of the state-court record, let alone to
make after-the-fact evaluations of the correctness vel non of
the decisions of state-court officials. See Anderson, 184 F.3d
at 481 ("In determining whether an outstanding violation warrant
triggers a two-point increase, the Guidelines do not require us
to assess the state authorities' diligence in executing a
violation warrant."); United States v. Elmore, 108 F.3d 23, 27
(3d Cir. 1997) ("The plain language of the Guidelines indicates
that two points are to be added whenever an outstanding warrant
is in existence, regardless of whether the warrant is stale
pursuant to state law at the time of sentencing, and
irrespective of whether state authorities have been lax in
attempting to execute the warrant."); see also United States v.
Correa, 114 F.3d 314, 317 (1st Cir. 1997) ("[J]udicial 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 .
. . strikes the right balance."). Based on these authorities,
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we hold that in determining whether to add criminal history
points under USSG §4A1.1(d), a sentencing court ordinarily is
not required to look beyond the face of the state-court record,
but, rather, may give weight to an outstanding warrant without
inquiring into the validity of that warrant.5
We need go no further. It is clear from the records
presented to the district court that, at the time of sentencing,
a warrant was outstanding in regard to the appellant's failure
to satisfy the terms of his state-court probation. The district
court was free to accept the state-court docket as it stood, and
the district court's determination was not undermined by the
state court's later issuance of a nunc pro tunc order vitiating
the warrant. Under these circumstances, it hardly can be said
that the district court erred either in adding points to the
appellant's criminal history score under USSG §4A1.1(d) or in
declaring him ineligible to reap the benefits of the safety
valve provision.
Affirmed.
5The government, citing cases such as Commonwealth v.
Odoardi, 489 N.E.2d 674, 678-79 (Mass. 1986), and Commonwealth
v. Sawicki, 339 N.E.2d 740, 742-44 (Mass. 1975), urges us to
find that the default warrant here was validly issued under
Massachusetts law. We have no occasion to reach this question
and, consequently, we express no opinion on it.
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