United States Court of Appeals
For the First Circuit
No. 04-1063
UNITED STATES OF AMERICA,
Appellee,
v.
EDDIE REYES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Torruella, Howard, Circuit Judges,
and DiClerico,* U.S. District Judge.
Edward C. Roy, Jr., with whom Office of the Federal Public
Defender was on brief, for appellant.
Donald C. Lockhart, Assistant United States Attorney with whom
Craig N. Moore, United States Attorney and Kenneth P. Madden,
Assistant United States Attorney, were on brief, for appellee.
October 20, 2004
*
Of the District of New Hampshire, sitting by designation.
Per Curiam. Eddie Reyes pleaded guilty to two counts of
distributing heroin and one count of possessing heroin with intent
to distribute. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) &
841(b)(1)(C). He appeals the sentences imposed for his
convictions, arguing that the district court improperly took into
account in calculating his criminal history score a 1994
Massachusetts state court "continued without finding" ("CWOF")
disposition of two state-law drug charges. Inclusion of the CWOF
disposition raised Reyes's criminal history score from I to II and
concomitantly rendered him ineligible for application of the safety
valve provision in U.S.S.G. § 5C1.2(a)(1).
Before the district court, Reyes maintained that
inclusion of the CWOF disposition would be improper because, in the
Massachusetts proceeding, he neither admitted to sufficient facts
to make the disposition the equivalent of a guilty plea nor was he
provided with an interpreter. Reyes argued that, accordingly,
there was no actual finding or admission of guilt -- a prerequisite
to the inclusion of the disposition in the federal criminal history
calculation. See U.S.S.G. § 4A1.2(f). The district court rejected
these arguments and applied circuit precedent holding that
Massachusetts CWOF dispositions are to be included in criminal
history calculations under the federal sentencing guidelines. See
United States v. Dubovsky, 279 F.3d 5, 7 (1st Cir. 2002); United
States v. Morillo, 178 F.3d 18, 21 (1st Cir. 1999). The court also
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rebuffed Reyes's attempt to attack the legitimacy of the
Massachusetts proceeding on grounds other than absence of counsel.
See, e.g., United States v. Wall, 349 F.3d 18, 27 (1st Cir. 2003)
(barring collateral challenges to prior state convictions in
federal sentencing proceedings for any reason other than lack of
counsel, and thus applying in the guidelines context the rule of
Custis v. United States, 511 U.S. 485 (1994)), cert. denied, 124 S.
Ct. 1727 (2004); United States v. Delgado, 288 F.3d 49, 52 n.4 (1st
Cir. 2002) (similar); Brackett v. United States, 270 F.3d 60, 65
(1st Cir. 2001) (similar).1
On appeal, Reyes argues that the district court erred in
reading Dubovsky and Morillo as precluding an argument that he
neither admitted guilt nor legitimately was found guilty in the
1994 Massachusetts proceeding.2 In pressing this argument, Reyes
1
Reyes admits that he was counseled in the Massachusetts
proceeding.
2
Reyes also raises the following two arguments not raised
before the district court: (1) the CWOF disposition should not be
counted because the underlying charge was ultimately dismissed; and
(2) the CWOF disposition should not be counted because the
proceeding that was continued without a finding did not comply with
Massachusetts procedural requirements. Neither argument comes
close to establishing plain error within the meaning of Fed. R.
Crim. P. 52(b). As to Reyes's first argument, we have held that an
eventual dismissal is a normal outcome in a CWOF case and in no way
results in an expungement which would preclude the disposition from
being counted. See Dubovsky, 279 F.3d at 8-9; Morillo, 178 F.3d at
20. And as to Reyes's second argument, we have held that
procedural irregularities in the state court proceeding cannot be
challenged during the federal sentencing. See Delgado, 288 F.3d at
52 n.4.
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points out that Dubovsky and Morillo (as well as two earlier cases
in which we considered whether a Massachusetts CWOF disposition
should be included in a guidelines criminal history calculation,
United States v. Nicholas, 133 F.3d 133 (1st Cir. 1998) and United
States v. Roberts, 39 F.3d 10 (1st Cir. 1994)) did not mention
Custis and explicitly analyzed the procedures used by the
Massachusetts courts during the proceedings that were continued
without a finding. See Dubovsky, 279 F.3d at 5; Morillo, 178 F.3d
at 18; Nicholas, 133 F.3d at 134-37; Roberts, 39 F.3d at 13-14.
Reyes sees within the methodology of Dubovsky, Morillo, Nicholas,
and Roberts an implicit recognition that the rule applied in Wall,
Delgado, and Brackett does not bar an individualized assessment
whether the defendant admitted guilt or was found guilty in the
proceeding in which his prior CWOF judgment was rendered. We
reject Reyes's argument.
We are as bound by the holdings of Dubovsky and Morillo
as was the district court. See Charlesbank Equity Fund II v.
Blinds to Go, Inc., 370 F.3d 151, 160 n.4 (1st Cir. 2004)
(observing that, in a multipanel circuit, a new panel is bound by
prior panel decisions directly on point absent intervening and
binding authority which undermines or calls into question the prior
panel's judgment). Accordingly, we are obliged to uphold the
court's inclusion of the CWOF disposition in Reyes's criminal
history calculation. In any event, we see no inconsistency
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between, on the one hand, Dubovsky, Morillo, and the earlier cases
analyzing how Massachusetts CWOF dispositions should be treated for
purposes of U.S.S.G. § 4A1.2(f), and, on the other, Wall, Delgado,
Brackett, and similar cases. In the Dubovsky line of cases, we
merely analyzed whether the proceedings with Massachusetts CWOF
findings are by their nature proceedings in which the federal
defendant can be said to have been found guilty or to have admitted
guilt. Repeated analyses were made necessary because the
Massachusetts legislature has more than once amended the relevant
procedural framework. See Roberts, 39 F.3d at 11. But we in no
way suggested that the rule articulated in Wall would not apply
once we had determined that Massachusetts CWOF dispositions are to
be counted under U.S.S.G. § 4A1.2(f). Reyes has not presented us
with any basis for disregarding the Wall rule in this context, and
we can see no reason for doing so.
Affirmed.
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