United States Court of Appeals
For the First Circuit
No. 04-1100
UNITED STATES OF AMERICA,
Appellee,
v.
GREGORY FRASER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Selya, Lynch and Howard, Circuit Judges.
Thomas J. Connolly on brief for appellant.
F. Mark Terison, Senior Litigation Counsel, and Paula D.
Silsby, United States Attorney, on brief for] appellee.
November 10, 2004
Per Curiam. After Gregory Fraser pleaded guilty to
possessing stolen firearms, in violation of 18 U.S.C. § 922(j), he
was sentenced to 54 months' imprisonment. In this appeal from that
sentence, Fraser argues that the district court erred in counting
a prior state-court continuance without a finding in calculating
his base offense level and his criminal history score under the
federal Sentencing Guidelines. In addition, in a supplemental
brief, he argues that, under the Supreme Court's recent decision in
Blakely v. Washington, 124 S. Ct. 2531 (2004), he is entitled to
have his sentence recalculated without reliance on two factors–-the
prior continuance without a finding and the involvement of 29 guns
in the present offense--that were neither admitted by him nor
proved to a jury beyond a reasonable doubt. For the reasons
discussed below, we affirm the sentence.
DISCUSSION
A. Use of State-Court Continuance Without a Finding in
Computing Fraser's Sentence Under the Guidelines
In calculating Fraser's sentence under the Guidelines,
the district court used Fraser's state-court continuance without a
finding in three ways–-in setting his base offense level at 20
(based on a "prior conviction") and in giving him one criminal
history point for a "prior sentence" and two criminal history
points for being under a "criminal justice sentence" when he
-2-
committed the present federal offense.1 In reviewing those
calculations, this court accepts the district court's factual
findings unless they are clearly erroneous and gives due deference
to the district court's application of the Guidelines to those
facts. 18 U.S.C. § 3742(e); United States v. DiPina, 230 F.3d 477,
482 (1st Cir. 2000). For the reasons discussed below, we conclude
that each of those uses of the continuance without a finding was
consistent with the Guidelines.
1. Base Offense Level
Under section 2K2.1(a)(4)(A), the base offense level for
violating 18 U.S.C. § 922(j) is 20 where the defendant has a prior
felony conviction for a crime of violence.2 For that purpose, the
Guidelines define "conviction" as an "adult conviction," which, for
an offense committed before the defendant was 18 years old, is a
conviction "classified as an adult conviction under the laws of the
jurisdiction in which the defendant was convicted." USSG § 2K2.1,
comment. (n. 5). As Fraser concedes, under Massachusetts law (the
law of the jurisdiction where Fraser was convicted), a 17-year-old
1
Fraser also claims, without explanation, that the base
offense level of 20 further precluded the court from granting him
a two-level reduction for his allegedly minor role in the present
offense. However, under the applicable Guideline, USSG § 3B1.2, a
defendant's prior criminal history is irrelevant to whether he is
entitled to a reduction based on his minor role in the offense of
conviction.
2
Fraser does not dispute that this state breaking-and-entering
offense was a "felony" and a "crime of violence."
-3-
offender is considered an adult rather than a juvenile. See Mass.
Gen. Laws ch. 119, § 52. Accordingly, as Fraser further concedes
and as the district court found, Fraser's breaking-and-entering
proceeding took place in adult rather than juvenile court.
The only remaining question is, therefore, whether the
disposition of that proceeding was a "conviction" within the
meaning of section 2K2.1(a)(4)(A). The answer to that question
turns on whether the disposition is countable for purposes of
awarding a criminal history point under section 4A1.1. See USSG §
2K2.1 comment. (n. 15). Because, as discussed immediately below,
Fraser's previous continuance without a finding is countable for
purposes of calculating his criminal history category, it is also
usable in calculating his base offense level.
2. Criminal History Point for "Prior Sentence"
For purposes of awarding criminal history points under
section 4A1.1(c), a disposition is countable if it is a "prior
sentence," which is defined to mean "any sentence previously
imposed upon adjudication of guilt, whether by guilty plea, trial,
or plea of nolo contendere," USSG § 4A1.2(a)(1), even where "the
imposition . . . of sentence was totally suspended or stayed," USSG
§ 4A1.2(a)(3). Applying that definition, we previously have held
that "a continuance without a finding, entered as a result of an
admission to facts sufficient to warrant a finding of guilt under
Massachusetts law, is counted as a sentence for purposes of
-4-
calculating criminal history points in sentencing." United States
v. Dubovsky, 279 F.3d 5, 8 (1st Cir. 2002) (citing United States v.
Morillo, 178 F.3d 18, 21 (1st Cir. 1999)); see also United States
v. Reyes, 2004 WL 2348554, *2 (1st Cir. Oct. 20, 2004).
Under that definition, even if the defendant was under 18
when he committed the offense in question, the sentence imposed for
that offense, by either a juvenile or an adult court, counts as a
"prior sentence" as long as the sentence was imposed within five
years of the commission of the offense for which the defendant is
presently being sentenced. USSG § 4A1.2(d); id., comment. (n.7).
Here, the state-court continuance without a finding was imposed
only a few months before Fraser committed the present firearms-
possession offense and is therefore countable as a "prior sentence"
under section 4A1.1(c) regardless of his age.
Nor does it matter that the state-court disposition was
diversionary in nature. Under section 4A1.2(f), "[a] diversionary
disposition resulting from . . . an admission of guilt . . . in a
judicial proceeding is counted as a sentence under § 4A1.1(c) even
if a conviction was not formally entered."3 An admission to
sufficient facts under Massachusetts procedure is deemed "an
admission of guilt" for this purpose. United States v. Nicholas,
3
As indicated in the commentary to this provision, counting
such diversionary dispositions "reflects a policy that defendants
who receive the benefit of a rehabilitative sentence and continue
to commit crimes should not be treated with further leniency."
USSG § 4A1.2, comment. (n. 9).
-5-
133 F.3d 133, 135 (1st Cir. 1998) (citing United States v. Roberts,
39 F.3d 10, 13 (1st Cir. 1994)). The exception to this rule for "a
diversion from juvenile court," which is not counted, USSG
§ 4A1.2(f), is inapplicable here, since the disposition was from
adult, not juvenile, court.
Fraser's final argument–-that the procedures followed by
the state court in accepting his admission to sufficient facts were
deficient in various respects and that the resulting disposition
should therefore not be counted for sentencing purposes–-is also
unavailing. Where, as here, "the district court determined that
[Fraser] had admitted guilt in open court and that there was a
judicial determination by the state court judge of facts sufficient
to support a finding of guilt[,] [t]hat is sufficient under the
Guidelines." Nicholas, 133 F.3d at 137; see also DiPina, 230 F.3d
at 485. While the government has the burden of establishing those
basic facts, once that is done, the burden shifts to the defendant
to offer evidence that what actually happened did not constitute an
admission of guilt. Nicholas, 133 F.3d at 136. Here, Fraser
declined to produce any such evidence.
Moreover, even if the procedures used by the state court
were somehow deficient, that would not warrant discounting the
disposition for purposes of sentencing. In this context, such a
collateral attack is foreclosed, absent a claim, not made here,
that the defendant was entirely without counsel. Custis v. United
-6-
States, 511 U.S. 485, 496 (1994); United States, v. Burke, 67 F.3d
1, 3 (1st Cir. 1995). As we previously explained, allowing such
challenges "would hopelessly complicate sentencing under the
federal Guidelines" and compromise the finality of state-court
judgments. Burke, 67 F.3d at 3.
Accordingly, the district court was correct in counting
Fraser's continuance without a finding as a "prior sentence"
warranting one criminal history point under section 4A1.1(c).
3. Criminal History Points for Being "Under a
Criminal Justice Sentence"
The district court also correctly gave Fraser two
additional criminal history points for "committ[ing] the instant
offense while under [a] criminal justice sentence, including
probation." USSG § 4A1.1(d). For purposes of this provision, "a
'criminal justice sentence' means a sentence countable under §
4A1.2 . . . having a custodial or supervisory component, although
active supervision is not required for this item to apply." Id. §
4A1.1, comment. (n. 4). As discussed above, the state-court
continuance without a finding was countable as a "prior sentence"
under section 4A1.2. It also had a "custodial or supervisory
component."
Although we have not heretofore had occasion to make this
interpretation, other circuits have found criminal dispositions to
have a "custodial or supervisory component" where the sentencing
court imposes conditions that, if violated, could result in
-7-
revocation of the more lenient disposition and imposition of a
harsher one. See, e.g., United States v. Gorman, 312 F.3d 1159,
1165-67 (10th Cir. 2002) (collecting cases). Here, as conditions
for continuing Fraser's breaking-and-entering case without a
finding until February 2004, the state court required that Fraser
make restitution, do community service, go to school or work full
time, report periodically to the probation department, and incur no
new arrests. If those conditions were violated, the state court
could revoke the continuance without a finding, enter a finding of
guilty, and impose a sentence as provided by the applicable
statute. See Mass. R. Dist. Ct. Prob. Viol. P. 9. Indeed, upon
Fraser's arrest for the instant federal offense in April 2003, the
state court did find a violation of his probation and issued a
warrant for his arrest. Accordingly, the district court correctly
gave Fraser two criminal history points for being under a criminal
justice sentence when he committed the instant offense.
B. Blakely Issues
Because Fraser raised his Blakely-related claims for the
first time on appeal, they are reviewable, if at all, under a plain
error standard. Fraser makes two such claims: that, under
Blakely, he was entitled to have a jury decide, beyond a reasonable
doubt, (i) what happened at the state-court proceedings that
resulted in a continuance without a finding, and (ii) how many
-8-
firearms were involved in the instant offense.4 Neither of those
claims survives plain error review.
"In determining whether an error is plain, the court
considers four factors:
[B]efore an appellate court can correct an
error not raised [below], there must be
(1) error, (2) that is plain, and (3) that
affects substantial rights. If all three
conditions are met, an appellate court may
then exercise its discretion to notice a
forfeited error, but only if (4) the error
seriously affects the fairness, integrity, or
public reputation of judicial proceedings.
United States v. Savarese, 2004 WL 2106341, *6 (1st Cir. Sept. 22,
2004) (internal quotation marks and citations omitted). Under
these standards, the errors alleged here were not "plain."
First, in the absence of a Supreme Court pronouncement
that Blakely applies to the federal sentencing guidelines, see
Blakely, 124 S. Ct. at 2538 n.9 (stating that "[t]he Federal
Guidelines are not before [the Court] and . . . express[ing] no
opinion on them"), federal sentencing decisions following pre-
Blakely precedents are not plainly erroneous, United States v.
Cordoza-Estrada, 2004 WL 2179594, *4 (1st Cir. Sept. 29, 2004);
United States v. Morgan, 384 F.3d 1, 8 (1st Cir. 2004). Under those
precedents, only a "fact that increases the penalty for a crime
4
Based on the presentence report's finding, which the district
court adopted, that 29 firearms were involved in the offense,
Fraser's offense level was increased by 6 levels under section
2K2.1(b)(1)(C) of the Guidelines.
-9-
beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt." Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000) (emphasis added); see also, e.g.,
United States v. Collazo-Aponte, 281 F.3d 320, 324 (1st Cir.)
(finding no right to jury trial on sentencing factors where, even
with enhancements, defendant's sentence was less than applicable
statutory maximum), cert. denied, 537 U.S. 869 (2002). Here, the
54-month sentence imposed falls far short of the statutory maximum
penalty of ten years' imprisonment for possessing stolen firearms
in violation of 18 U.S.C. § 922(j). See 18 U.S.C. § 924(a)(2).
Accordingly, under pre-Blakely precedent "(not yet clearly
established to be erroneous), . . . [no] plain error occurred."
Morgan, 384 F.3d at 8.
A second ground for finding no plain error, at least with
respect to the district court's finding that the continuance
without a finding was a "conviction," is that, under Apprendi, and
even under Blakely, the fact of a conviction need not be proved to
a jury beyond a reasonable doubt. See Blakely, 124 S. Ct. at 2536;
Apprendi, 530 U.S. at 476. To the extent that Fraser is
challenging the district court's legal, rather than factual,
conclusions about the continuance without a finding, Blakely has no
bearing on any such legal challenges.
A third ground for finding no plain error, at least with
respect to the number of firearms involved, is that Fraser did not
-10-
contest in the district court the facts that he now argues should
have been submitted to a jury and that, therefore, "there is no
basis for concluding that the [failure to submit those facts to a
jury] seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings." Savarese, 2004 WL 2106341, at
*7 (internal quotation marks and citations omitted). Although
Fraser initially objected to the probation officer's finding that
he was accountable for 29 guns, at the presentencing conference he
expressly waived his firearms objections and did not raise them
again in the district court or in his opening brief on appeal.
We need go no further. To sum up, we find no error in
the district court's calculations incident to Fraser's sentence
under the Guidelines and no plain error in failing, sua sponte, to
have the two challenged sentencing factors determined by a jury
beyond a reasonable doubt. Accordingly, the sentence is affirmed.
-11-