United States v. Rosalio Correa

USCA1 Opinion









UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT

_________________________



No. 96-2159



UNITED STATES OF AMERICA,

Appellee,

v.

NELSON ROSALIO CORREA,

Defendant, Appellant.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge] ___________________

_________________________

Before

Selya, Circuit Judge, _____________

Coffin and Cyr, Senior Circuit Judges. _____________________

_________________________

Elizabeth A. Lunt, with whom Zalkind, Rodriguez, Lunt & __________________ ____________________________
Duncan were on brief, for appellant. ______
Donald L. Cabell, Assistant United States Attorney, with _________________
whom Donald K. Stern, United States Attorney, was on brief, for _______________
appellee.

_________________________


May 29, 1997
_________________________
















SELYA, Circuit Judge. Defendant-appellant Nelson SELYA, Circuit Judge. ______________

Rosalio Correa challenges that part of his sentence which depends

upon the district court's allegedly erroneous computation of his

criminal history score. We first must resolve an issue that

divides the circuits. Once that is behind us, we detect no

miscalculation and therefore affirm the sentence.

I I _

Background Background __________

We cull the largely undisputed facts from the plea

colloquy, the presentence investigation report, and the

transcript of the sentencing hearing. See United States v. ___ _____________

Garcia, 954 F.2d 12, 14 (1st Cir. 1992); United States v. Dietz, ______ _____________ _____

950 F.2d 50, 51 (1st Cir. 1991).

A native of the Dominican Republic, Correa resided

legally in the United States for a short spell. That sojourn

ceased on January 5, 1994, when, after having been convicted of

various crimes committed between 1989 and 1993, he was deported.

We do not chronicle the complete compendium of Correa's criminal

capers, but confine ourselves to conveying the contours of

certain crimes that possess particular pertinence for present

purposes.

1. The February Offenses. On March 13, 1991, the 1. The February Offenses. ______________________

Commonwealth of Massachusetts issued a criminal complaint (later

served by summons) which charged Correa, then 19 years of age,

with three counts of breaking and entering and one count of

larceny. See Mass. Gen. Laws ch. 266, 16A, 30 (1990). The ___


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charges arose from a spree that occurred on February 19, 1991; on

that date, Correa raided three separate automobiles parked in

Danvers, Massachusetts, and absconded with ill-gotten gain from

one.

2. The June Offenses. Some months later, Correa, 2. The June Offenses. __________________

still 19, was charged with falsifying his age to purchase

alcoholic beverages, in violation of Mass. Gen. Laws ch. 138,

34A (1991), and contributing to the delinquency of a child for

buying and serving alcohol to two boys, ages 12 and 15,

respectively, in violation of Mass. Gen. Laws ch. 119, 63

(1993). The infractions were alleged to have occurred on June 8,

1991, in Beverly, Massachusetts.

3. The State Court Disposition Hearing. On October 3. The State Court Disposition Hearing. _____________________________________

28, 1992, Correa pled guilty in a state district court to all

charges arising from both incidents. With respect to the

February offenses, the court imposed a nine-month sentence on the

three breaking-and-entering counts and filed the larceny

conviction. With respect to the June offenses, the court filed

all the convictions.1

In due course, the government deported Correa. Little
____________________

1In Massachusetts, after a plea of guilty in a criminal
case, "a judge, with the consent of the defendant, may place the
case on file rather than impose sentence immediately." DuPont v. ______
Superior Court, 401 Mass. 122, 123 (1987). Although that is _______________
usually the end of the matter, the case thereafter "may at any
time be called up [by the court] and sentence may be imposed, or
some other final disposition made of it." Marks v. Wentworth, _____ _________
199 Mass. 44, 45 (1908). Hence, the defendant's right to appeal
is suspended for the length of time that the case remains on
file. See DuPont, 401 Mass. at 123; Commonwealth v. Delgado, 367 ___ ______ ____________ _______
Mass. 432, 438 (1975).

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daunted, he reentered the United States unlawfully in 1995 and

found his way to Lynn, Massachusetts. The authorities eventually

apprehended him and pressed a charge of illegal reentry after

deportation. See 8 U.S.C. 1326 (1994). Correa pled guilty to ___

this accusation in federal district court. The sentencing

proceeding that followed comprises the cynosure of this appeal.2

We set the stage. In applying the sentencing

guidelines, a nisi prius court, among other things, transposes

the defendant's criminal past into "criminal history points,"

thus obtaining a "criminal history score" which yields a

"criminal history category." See United States v. Emery, 991 ___ ______________ _____

F.2d 907, 909-10 (1st Cir. 1993) (illustrating the process).

Since the guideline sentencing range (GSR) is derived from a grid

and is determined in a given case by correlating the defendant's

criminal history category with his adjusted offense level, see ___

United States v. Diaz-Villafane, 874 F.2d 43, 47-48 (1st Cir. _____________ ______________

1989), criminal history points can profoundly affect the length

of a sentence.

This case typifies the phenomenon. In the course of

his sentencing calculations, Judge O'Toole treated the February

offenses as comprising one crime and the June offenses as

comprising another, unrelated crime. Hence, he assigned criminal

____________________

2The district court apparently applied the November 1995
edition of the sentencing guidelines. See United States v. ___ _____________
Harotunian, 920 F.2d 1040, 1041-42 & n.2 (1st Cir. 1990) __________
(explaining that the guidelines in effect at the time of
sentencing control unless ex post facto considerations prohibit
their use). Thus, all references herein are to that edition.

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history points for each. On that basis, Correa garnered a

criminal history score of 7, which placed him in criminal history

category IV. Had the judge treated the February and June

offenses as related rather than unrelated, or had he deemed the

June offenses unworthy of consideration, Correa's criminal

history score would have dropped by one point, placing him in

criminal history category III. At Correa's adjusted offense

level (19), the single criminal history point accounted for a

substantial increase in his GSR (which rose from 37-46 months to

46-57 months). See USSG ch. 5, Pt. A (sentencing table). ___

Having added the disputed criminal history point and

fixed the GSR at 46-57 months, the judge then accepted the

government's recommendation, incorporated in the plea agreement,

that Correa be sentenced at the nadir of the applicable range.

Consequently, the court imposed a 46-month incarcerative

sentence. This appeal ensued. In it, the appellant contends

that the district court erred in adding the extra criminal

history point. He makes two arguments in support of this

contention. We treat these arguments sequentially.

II II __

Related Cases Related Cases _____________

The guidelines require the assessment of criminal

history points for "each prior sentence." USSG 4A1.1. But

there are exceptions. One such exception authorizes sentences

imposed in what the Sentencing Commission calls "related cases"

to be treated as a single sentence. See USSG 4A1.2(a)(2). ___


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Insofar as pertinent here, sentences are considered related "if

they resulted from offenses that . . . were consolidated for

trial or sentencing." Id., comment. (n.3). At sentencing, ___

Correa argued unsuccessfully that the February and June offenses

fell within this safe harbor (and, therefore, should be deemed

related) because the state court had in effect consolidated them

for sentencing. Judge O'Toole rejected the notion that these

disparate offenses constituted a set of related cases.3 Correa

now presses this argument on appeal.

The standard of review in sentencing appeals ordinarily

is deferential. See 18 U.S.C. 3742(e) (1994); see also Dietz, ___ ___ ____ _____

950 F.2d at 52. Thus, "where there is more than one plausible

view of the circumstances, the sentencing court's choice among

supportable alternatives" is not clearly erroneous and a

reviewing tribunal cannot disturb it. United States v. Ruiz, 905 _____________ ____

F.2d 499, 508 (1st Cir. 1990). However, to the extent that an

alleged error involves the district court's interpretation of a

sentencing guideline, it presents a question of law warranting
____________________

3In so ruling, the lower court relied on an application note
instructing that "[p]rior sentences are not considered related if
they were for offenses that were separated by an intervening
arrest (i.e., the defendant is arrested for the first offense ____
prior to committing the second offense)." USSG 4A1.2, comment.
(n.3). The court repudiated United States v. Joseph, 50 F.3d 401 _____________ ______
(7th Cir.), cert. denied, 116 S. Ct. 139 (1995), and impliedly _____ ______
found that the summons Correa received for the February offenses,
which had been served before he committed the June offenses,
constituted the functional equivalent of an intervening arrest.
While this holding seems problematic, we need not resolve the
uncertainty. Here, the record plainly presents an alternative
ground for affirmance, and we are free to use that ground in lieu
of the trial court's rationale. See Hachikian v. FDIC, 96 F.3d ___ _________ ____
502, 504 (1st Cir. 1996).

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plenary review. See United States v. Santiago, 83 F.3d 20, 26 ___ _____________ ________

(1st Cir. 1996); United States v. St. Cyr, 977 F.2d 698, 701 (1st _____________ _______

Cir. 1992). So it is here.

In United States v. Elwell, 984 F.2d 1289 (1st Cir. ______________ ______

1993), we intimated that a mere coincidence in timing, without

more, is not enough to justify treating convictions that do not

possess common antecedents as having been consolidated for

purposes of sentencing. See id. at 1296 n.7 (explaining that ___ ___

such convictions cannot be "deemed `constructively' consolidated

because of . . . [a] plea bargain and concurrent sentences")

(dictum). We now transform the Elwell adumbration into an ______

express holding: at least in respect to offenses that are

temporally and factually distinct (that is, offenses which

occurred on different dates and which did not arise out of the

same course of conduct), charges based thereon should not be

regarded as having been consolidated (and, therefore, "related")

unless the original sentencing court entered an actual order of

consolidation or there is some other persuasive indicium of

formal consolidation apparent on the face of the record which is

sufficient to indicate that the offenses have some relationship

to one another beyond the sheer fortuity that sentence was

imposed by the same judge at the same time.

In so holding, we align ourselves with a number of our

sister circuits which have reached a substantially similar

conclusion. See, e.g., United States v. Patasnik, 89 F.3d 63, 74 ___ ____ _____________ ________

(2d Cir. 1996); Green v. United States, 65 F.3d 546, 548-49 (6th _____ _____________


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Cir. 1995), cert. denied, 116 S. Ct. 826 (1996); United States v. _____ ______ _____________

Allen, 50 F.3d 294, 298-99 (4th Cir.), cert. denied, 115 S. Ct. _____ _____ ______

2630 (1995); United States v. Alberty, 40 F.3d 1132, 1134-35 ______________ _______

(10th Cir. 1994), cert. denied, 115 S. Ct. 1416 (1995); United _____ ______ ______

States v. Klein, 13 F.3d 1182, 1185 (8th Cir. 1994); United ______ _____ ______

States v. Garcia, 962 F.2d 479, 483 (5th Cir. 1992). By the same ______ ______

token, we reject the minority view embodied in United States v. ______________

Smith, 991 F.2d 1468, 1473 (9th Cir. 1993) (envisioning "no need _____

for a formal consolidation order for cases to be `related' under

section 4A1.2").

We are cognizant that some may see insistence on a

formal indicium of consolidation, such as an order or a docket

entry, as arbitrary. But judicial 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 the

indictment, the docket entries, the judgment of conviction, and

the like strikes the right balance. Moreover, it does so in a

manner that supplies needed uniformity while husbanding scarce

judicial resources.

This approach also is in keeping with the way in which

we have treated analogous matters. After all, when a federal

court looks to a prior state conviction in formulating its

sentencing calculus, the court most often characterizes the


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previous conviction by means of a formal categorical approach,

restricting its examination to the legislature's definition of

the crime. See, e.g., Taylor v. United States, 495 U.S. 575, ___ ____ ______ _____________

600-02 (1990); United States v. DeLuca, 17 F.3d 6, 8 (1st Cir. _____________ ______

1994); United States v. De Jesus, 984 F.2d 21, 23 (1st Cir. _____________ _________

1993). If the legislature's definition provides an inexact

construct, however, the court commonly bases its characterization

of the previous conviction on what is readily apparent from the

formal documents in the case, without delving more deeply into

the actual circumstances of the offense. See, e.g., Taylor, 495 ___ ____ ______

U.S. at 602 (permitting a sentencing court, when a categorical

approach fails, to consider the charging papers and jury

instructions to ascertain the contours of the particular prior

offense); United States v. Winter, 22 F.3d 15, 19 (1st Cir. 1994) _____________ ______

(similar); United States v. Fiore, 983 F.2d 1, 3-4 & n.3 (1st ______________ _____

Cir. 1992) (similar).

We are not disposed to deviate from this salutary

principle in interpreting the "related case" guideline, USSG

4A1.2(a)(2). Were we to do so, we would make criminal

sentencing already an operose task under the guidelines a

more cumbersome and time-consuming endeavor with little

corresponding benefit. Criminal history, by definition, deals

with bygone events which often happened in the distant past, or

in a remote jurisdiction, or both. Requiring a federal judge to

go behind the formal record and excavate the details of what

transpired in each instance would impose an onerous burden,


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freighted with unusual evidentiary difficulties. We think that a

categorical rule, analogous to that sponsored by the Supreme

Court in Taylor, better serves the interests of justice. ______

In the instant case, the record is pellucid that the

state court judge never entered an order consolidating the

complaints, which embodied the February and June offenses, for

sentencing or for any other purpose. To the exact contrary, the

complaints embodying these two sets of offenses were at all times

handled under separate docket numbers, and there is no indication

that the state court judge ever gave a moment's thought to

whether consolidation was (or was not) desirable. Moreover, the

appellant concedes that the offenses occurred in different places

at different times and that they arose in widely divergent

factual contexts. Last, but not least, this is not a situation

in which the court of original jurisdiction imposed a single

sentence spanning a series of discrete offenses. Rather, the

court imposed a prison sentence on the breaking-and-entering

convictions (the main component of the February offenses) but did

not include the convictions on the June offenses as part of the

underpinning for that sentence. Instead, the court filed those

charges, in effect reserving the right to call up the file and

impose a sentence at a future date. See supra note 1. ___ _____

We will not paint the lily. Because there were no

formal indicia of consolidation, the February offenses were not

"related" to the June offenses under a proper reading of the

federal sentencing guidelines. Hence, the appellant's principal


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assignment of error fails.

III III ___

Juvenile Status Offenses Juvenile Status Offenses ________________________

The appellant's fallback position is that, even if the

June offenses are not "related" to the February offenses in the

requisite sense, they nonetheless are juvenile status offenses

and thus not countable in compiling his criminal history score.

See USSG 4A1.2(c) (ordaining that the sentencing court should ___

"never count . . . [j]uvenile status offenses" when tabulating

criminal history points). The district court rejected this

asseveration. So do we.

The sentencing guidelines do not define the term

"juvenile status offense," although they offer illustrations of

crimes which, like juvenile status offenses, are excludable in

computing a defendant's criminal history score. See USSG ___

4A1.2(c)(2). In determining whether a prior conviction falls

within the ambit of section 4A1.2(c)(2), courts traditionally

"look to the substance of the underlying state offense." United ______

States v. Unger, 915 F.2d 759, 763 (1st Cir. 1990). Moreover, ______ _____

courts can derive some guidance from a mirror image provision in

the guidelines which encourages the assignment of criminal

history points for a crime committed by a defendant before

reaching the age of 18 if he or she perpetrated the crime within

the five-year period immediately preceding the occurrence of the

offense of conviction. See USSG 4A1.2(d)(2). This provision's ___

primary purpose is to promote points for past crimes that predict


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criminal proclivity.

Considering together the caselaw and the actual

guideline provisions, we conclude that a crime constitutes a

juvenile status offense only if three elements coalesce: (1) the

defendant committed the crime as a juvenile, see USSG 4A1.2, ___

comment. (n.7); (2) the conduct would have been lawful if engaged

in by an adult, see United States v. Ward, 71 F.3d 262, 263-64 ___ ______________ ____

(7th Cir. 1995); and (3) the offense is not serious, see United ___ ______

States v. Hardeman, 933 F.2d 278, 281-83 (5th Cir. 1991). When ______ ________

all is said and done, this third element, which necessitates the

appraisal of gravity for a given crime, is quintessentially a

judgment call. Still, the illustrations of exempted offenses

supplied by the Sentencing Commission, e.g., truancy,

hitchhiking, loitering, vagrancy, and minor traffic infractions,

USSG 4A1.2(c)(2), furnish a valid point of comparison. The

enumerated offenses all possess a bland quality that helps to

distinguish them from more substantial transgressions: for

example, one common characteristic is that they provide little,

if any, indication of a person's proclivity to commit future,

more serious crimes.

In applying this paradigm to the June offenses, we note

first that either of the two component crimes falsifying one's

age to purchase alcohol and contributing to the delinquency of a

child is, if not an exempted offense, independently sufficient

to warrant the bestowal of the challenged criminal history point.

Since contributing to the delinquency of a child is arguably the


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more weighty of the crimes, we focus exclusively on it.

The appellant flunks the first segment of the test:

the victims may have been juveniles, but in ascertaining whether _______

a crime is (or is not) a juvenile status offense, it is the

perpetrator's age, not the victim's age, that matters and

Correa was 19 years old when he committed the act. Accordingly,

he was not a juvenile. See USSG 4A1.2, comment. (n.7) (defining ___

a juvenile for this purpose as a person under the age of 18). He

also fails to satisfy the second requirement: contributing to

the delinquency of a child is conduct which state law

criminalizes regardless of the perpetrator's age. See Mass. Gen. _____________ ___

Laws ch. 119, 63.

Since the appellant's argument depends on his ability

to establish three factors, and the first two are lacking, we

need go no further.4 It is abundantly clear that the district

court did not err either in declining to classify the crime of

contributing to the delinquency of a child as a juvenile status

offense or in assessing an extra criminal history point for it.



Affirmed. Affirmed. ________






____________________

4Because the appellant's argument stalls at the first two
stages of the test, we need not decide whether the offense might
be written off either as youthful folly or as lacking predictive
value vis- -vis future lawlessness (and, therefore, pass muster
at the third stage of the test).

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