United States Court of Appeals
For the First Circuit
No. 01-1744
UNITED STATES OF AMERICA,
Appellee,
v.
RICHARD ALBANESE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Torruella and Lipez, Circuit Judges,
and McAuliffe,* District Judge.
Marcia G. Shein, on brief, for appellant.
Donald C. Lockhart and Kenneth P. Madden, Assistant U.S.
Attorneys, with whom Margaret E. Curran, United States Attorney,
were on brief, for appellee.
April 24, 2002
*
Of the District of New Hampshire, sitting by designation.
Per Curiam. Defendant Richard Albanese was convicted of
conspiracy to distribute drugs, possession of marijuana, and money
laundering. He appeals the sentence he received, alleging that the
district court erred in calculating his Criminal History Category
and that his counsel provided ineffective assistance at sentencing.
Because we find that the defendant was not prejudiced by any
alleged error, we affirm his sentence.
I.
On April 5, 2000, defendant Albanese was named in a six-
count indictment that charged him with: conspiracy to distribute
and possess with intent to distribute over 1,000 kilograms of
marijuana (Count I); possession with intent to distribute over 100
kilograms of marijuana (Counts III and IV); conspiracy to
distribute and possess with intent to distribute over 100 kilograms
of marijuana (Count V); and attempted possession with intent to
distribute over 100 kilograms of marijuana (Count VI).
Counts V and VI were severed, and the defendant proceeded
to trial on these counts. On November 17, 2000, after a three-day
trial, the jury convicted Albanese on Count VI. The district court
declared a mistrial as to Count V.
On January 31, 2001, the defendant entered into a plea
agreement to plead guilty to Counts I, III, and IV. Under the
agreement the defendant was also obligated to plead guilty to a
one-count information, to be filed by the government, charging the
defendant with money laundering, in violation of 18 U.S.C. § 1957.
All counts were consolidated for sentencing.
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The Probation Department issued a final Presentence
Report ("PSR") on April 30, 2001. In calculating the defendant's
criminal history score, the PSR included the following prior
convictions: (1) a 1992 Rhode Island conviction for forgery and
counterfeiting ("first Rhode Island conviction"); (2) 1992 Rhode
Island convictions for forgery, counterfeiting, and obtaining
property by false pretenses ("second Rhode Island conviction"); (3)
1992 Rhode Island controlled substance convictions ("third Rhode
Island conviction"); and (4) a 1995 Massachusetts conviction for
possession with intent to distribute marijuana ("1995 Massachusetts
conviction"). These prior convictions, each worth one point,
yielded a total of four criminal history points. The PSR then
added two additional criminal history points, pursuant to U.S.S.G.
§ 4A1.1(d), because the defendant had committed the instant federal
offenses while he was still serving sentences for the second Rhode
Island conviction and the 1995 Massachusetts conviction. Thus,
totaling the criminal history points for a score of six, the PSR
placed the defendant in Criminal History Category III. Combining
this with a total offense level of 30, the applicable sentencing
guideline range was 121 to 151 months' imprisonment.
The district court, accepting the PSR without objection
from either party, sentenced the defendant to concurrent sentences
of 121 months on Counts I, III, IV, and VI, and 60 months on the
money laundering charge. The defendant filed a timely appeal,
arguing that the district court erred in calculating his criminal
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history score and that his counsel was ineffective at the
sentencing hearing.
II.
We review alleged sentencing errors to which a party did
not contemporaneously object for plain error. See United States v.
Olano, 507 U.S. 725, 731-32 (1993); United States v. Torres-Rosa,
209 F.3d 4, 8 (1st Cir. 2000). To establish plain error, a
defendant must demonstrate that a clear or obvious error both
affected his substantial rights and adversely impacted the
fairness, integrity, or public reputation of judicial proceedings.
See Olano, 507 U.S. at 732-36.
III.
The defendant asserts that the district court erred in
calculating his criminal history score in two ways: (1) the court
failed to exclude the defendant's 1995 Massachusetts conviction
pursuant to U.S.S.G. § 4A1.2(a)(1); and (2) the court, contrary to
U.S.S.G. § 4A1.2(a)(2), treated the first and second Rhode Island
convictions as two separate offenses, rather than as one.
The Sentencing Guidelines dictate that criminal history
points be ascribed to a defendant for "each prior sentence" he has
received. U.S.S.G. § 4A1.1. A "prior sentence" is defined as "any
sentence previously imposed upon adjudication of guilt . . . for
conduct not part of the instant offense." Id. § 4A1.2(a)(1). The
district court, based on the PSR, attributed one point to Albanese
for each of the following "prior sentences": (1) the first Rhode
Island conviction; (2) the second Rhode Island conviction; (3) the
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third Rhode Island conviction; and (4) the 1995 Massachusetts
conviction.
Albanese contends that it was error to include the 1995
Massachusetts conviction as a "prior sentence" because such
conviction was based on conduct that is part of the instant
offense. Assuming, arguendo, that the 1995 Massachusetts
conviction should not have been counted as a "prior sentence," the
defendant would have received three, instead of four, points based
on his past sentences.
Albanese further argues that the court erred by treating
the first and second Rhode Island convictions as separate "prior
sentences" since these convictions were "related cases." The
Sentencing Guidelines stipulate: "Prior sentences imposed in
unrelated cases are to be counted separately. Prior sentences
imposed in related cases are to be treated as one sentence for
purposes of § 4A1.1(a), (b), and (c)." Id. § 4A1.2(a)(2). Again,
assuming, but not deciding, that the defendant states a valid claim
of error, the district court should have assigned one criminal
point, instead of two, for these two Rhode Island convictions.
The district court, pursuant to the PSR, assigned to the
defendant, in addition to the points for "prior sentences," two
points for "committ[ing] the instant offense while under any
criminal justice sentence." Id. § 4A1.1(d). The court determined
that Albanese was still serving his sentences for both the second
Rhode Island conviction and the 1995 Massachusetts conviction at
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the time he committed the instant federal offense. The defendant
does not contest these two criminal history points.
We need not address the merits of the alleged errors,
because even if we assume, arguendo, that the district court did
err by assigning the defendant one point for the 1995 Massachusetts
conviction and two points, instead of one, for the first and second
Rhode Island convictions, Albanese still has not demonstrated plain
error. One of the requirements of plain error is that a defendant
establish that the alleged error affected his substantial rights.
See Olano, 507 U.S. at 734; United States v. Duarte, 246 F.3d 56,
60 (1st Cir. 2001). This entails a showing that the error was
prejudicial because it affected the outcome of the case. See
Olano, 507 U.S. at 734; United States v. Hernández-Vega, 235 F.3d
705, 712 (1st Cir. 2000). Albanese fails to demonstrate any
prejudice.
If we were to credit Albanese's allegations of error, his
criminal history score would not be six points, as calculated in
the PSR, but four points. However, this point reduction would not
change Albanese's Criminal History Category, since Category III
covers criminal history scores ranging from four to six points. As
a result, since no other errors were alleged, the applicable
guideline range of 121 to 151 months' imprisonment would remain
unchanged. Thus, even assuming error occurred, it was not
prejudicial because it did not affect the defendant's sentence.1
1
Albanese further suggests that the alleged errors were
prejudicial because, if the district court had properly calculated
the criminal score to be four points, it could have found that
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Albanese also raises an ineffective assistance of counsel
claim based on his attorney's failure to object to the criminal
history calculations at the sentencing hearing. We have
steadfastly held that we will not hear these claims for the first
time on direct appeal. See United States v. Ortiz, 23 F.3d 21, 26
(1st Cir. 1994); United States v. Costa, 890 F.2d 480, 482-83 (1st
Cir. 1989) (noting that "[t]he reason for the rule is that a trial
judge is in the best position to evaluate the quality of legal
representation in the first instance"). This case presents no
reason to depart from this standard.
IV.
Accordingly, we affirm the defendant's sentence.
Criminal History Category III over-represented the seriousness of
the defendant's criminal history and chosen, sua sponte, to depart
from the applicable guideline range. See U.S.S.G. § 4A1.3(e), p.s.
A remote possibility that the outcome could have been affected is
not sufficient to fulfill the defendant's burden of proving
prejudice. See United States v. Sposito, 106 F.3d 1042, 1049-50
(1st Cir. 1997) (finding that "it is not enough, under the plain
error standard, that the error could have changed the outcome,"
rather "the error must have done so"); United States v. Procopio,
88 F.3d 21, 31 (1st Cir. 1996) (stating that "mere possibilities
are not enough" to show prejudice).
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