United States v. Curet

United States Court of Appeals
For the First Circuit

No. 10-1176

UNITED STATES,

Appellee,

v.

ALEX CURET, a/k/a/ A.J.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Selya, Circuit Judges.

Karen A. Pickett, with whom Donnelly, Conroy & Gelhaar, LLP
was on brief, for appellant.
Cynthia A. Young, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

January 11, 2012
 LYNCH, Chief Judge. Alex Curet appeals his below-

guidelines career offender sentence of 174 months after a plea of

guilty to three counts of conspiracy to distribute cocaine base and

distribution of cocaine base within 1,000 feet of a school. His

appeal raises an issue that we have not resolved before: whether a

Massachusetts state-court "guilty-filed" disposition qualifies as

a "conviction" for purposes of the career offender guidelines,

U.S.S.G. § 4B1.1(a)(3). We hold that it does, and that federal law

controls the issue. We affirm Curet's sentence.

I.

Alex Curet and a co-defendant were indicted on December

12, 2007. Count one charged that, beginning on September 25, 2007,

and continuing until at least October 3, 2007, Curet conspired with

others to distribute at least five grams of cocaine base in Boston,

in violation of 21 U.S.C. § 841(a)(1). Two instances of

distribution, on September 25 and October 3, each involving at

least five grams of cocaine base, were within 1,000 feet of a

school, providing the basis for counts two and three. 21 U.S.C.

§§ 841(b)(1)(B)(iii), 860.

On December 13, 2007, the government filed an information

to establish that Curet had a prior state felony conviction in

April 2005 for possession of a class D substance with intent to

distribute and of a drug violation near a school, in violation of

Mass. Gen. Laws ch. 94C, §§ 32C, 32J. This § 851 information, see

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21 U.S.C. § 851, subjected Curet to a mandatory minimum sentence of

ten years.1

Curet initially pled not guilty to all three counts of

the indictment. On October 27, 2008, at a change of plea hearing,

Curet pled guilty to all three counts. Sentencing was initially

scheduled for January 29, 2009, but was postponed several times.

On December 30, 2008, the initial pre-sentence report

(PSR) found that Curet (A) had a base offense level of 24, because

he was responsible for distribution of 13.95 grams of cocaine base,

and (B) was a career offender under the guidelines, because he had

at least two prior felony convictions: (1) a 2003 state-court

"youthful offender" adjudication of distribution of class B

substances and distribution of a controlled substance in a school

zone; (2) a 2003 state-court "guilty-filed" disposition for

resisting arrest, which took place when Curet was seventeen years

1
Under the version of 21 U.S.C. § 841 then in effect, an
individual who was convicted of violation of § 841(a) with respect
to "5 grams or more of a mixture or substance . . . which contains
cocaine base," 21 U.S.C. § 841(b)(1)(B)(iii) (2008), and who
committed the § 841(a) violation "after a prior conviction for a
felony drug offense has become final," was subject to a mandatory
sentence of imprisonment of not "less than 10 years," id.
§ 841(b)(1)(B) (2008). In the absence of such a prior felony
conviction, the statute provided a five-year mandatory minimum.
Id.
The prior conviction required under § 841 for imposition of
the ten-year mandatory minimum may only be established if "before
trial, or before entry of a plea of guilty, the United States
attorney files an information with the court . . . stating in
writing the previous convictions to be relied upon." Id.
§ 851(a)(1). Various other requirements exist, and the information
may be challenged by the defendant. See id. § 851.

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old; and (3) the April 2005 state-court conviction for distribution

of class D substances that was outlined in the § 851 information.

This led to a total offense level of 35, and a guideline

imprisonment range of 292 to 365 months.

On January 23, 2009, Curet pro se filed a letter with the

court challenging the § 851 information and requesting a hearing

before sentencing. On February 4, 2009, Curet's attorney filed a

notice of intent to challenge the § 851 information, on the basis

that the 2005 state-court conviction was unconstitutional.

The government moved to strike the notice of intent the

same day, for failure to satisfy the statutory requirement that

"[a] person claiming that a conviction alleged in the information

was obtained in violation of the Constitution of the United States

shall set forth his claim, and the factual basis therefor, with

particularity in his response to the information." Id.

§ 851(c)(2).

On February 13, 2009, Curet objected to the PSR,

challenging the career-offender designation, but solely on the

basis that the 2005 drug conviction was constitutionally invalid.

The next day, Curet challenged the § 851 information,

arguing that the April 2005 felony drug conviction was

constitutionally infirm on the ground of ineffective assistance of

counsel and because his guilty plea to that offense was not knowing

and voluntary. The government's response contested all of Curet's

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claims and argued that it was clear from the state-court plea

colloquy that Curet's claims were without merit.

On December 4, 2009, the government filed its sentencing

memorandum, recommending a below-guideline sentence of 174 months.

On January 19, 2010, the government filed a supplemental response

regarding the § 851 memorandum, stating that Curet's constitutional

claims regarding the April 2005 drug conviction had been heard and

resolved against him in the state district court which had accepted

the plea and imposed the sentence.

Sentencing took place on February 2, 2010. At the outset

of the hearing, the prosecutor explained that he had discussed the

§ 851 information issue with Curet's counsel, and that because the

Massachusetts state court had rejected Curet's claims, their view

was that "the challenge to the 851 here is moot, obviously subject

to if he were able to appeal the state court judge's denial of the

motion to vacate."2 The district court twice asked Curet's counsel

whether he agreed, and counsel responded with "I agree with that

statement." Turning to Curet's objections to the PSR, the district

court asked whether the objection to Curet's career offender

status, which was based on the same 2005 conviction as was at issue

in the § 851 information, was "waived by virtue of the earlier"

2
Curet does not claim that he has appealed the state court's
denial of his motion to vacate or otherwise attempted to vacate the
2005 conviction subsequent to his sentencing hearing in this case.

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discussion, and Curet's attorney agreed that the objection was waived.

The district court found, as had the PSR, that after

consideration of the career offender provisions, Curet was subject

to a total career offender offense level of 35. Curet's attorney

agreed with these calculations.

The court then found that Curet had three state career

offender predicates: the 2003 youthful offender adjudication, the

2003 resisting arrest guilty-filed disposition, and the 2005 drug

conviction. Curet's attorney did not object to the counting of all

three of these convictions as career offender predicates. The

court then found, as had the PSR, that Curet's guideline range was

292 to 365 months, to which there was again no objection.

Counsel for the government and for Curet made their

sentencing recommendations to the court, and then Curet spoke,

explaining that he had delayed in pleading guilty because he was

hoping for a favorable plea agreement, and "was still kind of

confused about this whole career offender and 851 situation." He

said that he had not meant to plead guilty to the intent to

distribute charge in 2005, but rather simply to possession, and

that he didn't understand why that conviction was deemed a prior

drug conviction, as it should have been vacated.

The district court then sentenced Curet to the 174 months

recommended by the government, varying downward from the

guidelines. Curet timely appealed.

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 II.

Curet raises three challenges to his sentence: (1) that

the district court committed reversible error in failing to conduct

a hearing and colloquy regarding the 21 U.S.C. § 851 information,

(2) that he was improperly classified as a career offender under

the federal sentencing guidelines, and (3) that the provisions of

the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat.

2372, and the attendant modifications of the guidelines, should

retroactively apply to him. Each challenge fails.

A. The 21 U.S.C. § 851 Information as to the April 2005
State Drug Conviction

Curet argues that the district court was required to

conduct a hearing pursuant to 21 U.S.C. § 851(c) as to the April

2005 state conviction, notwithstanding his attorney's

representation to the court that the issue was moot given the state

court's refusal to vacate his conviction. This error, he argues,

warrants reversal. Curet also argues that even if such a hearing

was not required, the district court was required to conduct the

colloquy prescribed by 21 U.S.C. § 851(b). Both claims fail.

Curet expressly waived his right to a hearing, and did not

expressly request a colloquy. While the district court should have

conducted a colloquy, Curet is unable to demonstrate plain error

and thus this lapse does not provide grounds for altering Curet's

sentence.

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 Section 851 imposes a set of "mandatory prerequisites to

obtaining a punishment based on the fact of a prior conviction."

Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2582 (2010). If a

prosecutor intends to seek "increased punishment [of a defendant]

by reason of one or more prior convictions," the prosecutor must,

before trial or entry of a plea of guilty, file an information with

the court "stating in writing the previous convictions to be relied

upon." 21 U.S.C. § 851(a)(1). If such an information is filed,

the statute imposes an obligation on the court to conduct a

colloquy with the defendant:

If the United States attorney files an
information under this section, the court
shall after conviction but before
pronouncement of sentence inquire of the
person with respect to whom the information
was filed whether he affirms or denies that he
has been previously convicted as alleged in
the information, and shall inform him that any
challenge to a prior conviction which is not
made before sentence is imposed may not
thereafter be raised to attack the sentence.

Id. § 851(b). One purpose of the colloquy is for the court to

provide the required information to the defendant.

After the colloquy, "[i]f the person denies any

allegation of the information of prior conviction, or claims that

any conviction alleged is invalid, he shall file a written response

to the information." Id. § 851(c)(1). If such a response is

filed, the court "shall hold a hearing to determine any issues

raised by the response which would except the person from increased

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punishment." Id. Only convictions that occurred within a five-

year window preceding the filing of the information may be

challenged. Id. § 851(e). If, after a hearing, "the court

determines that the person has not been convicted as alleged in the

information, [or] that a conviction alleged in the information is

invalid," the court may not impose an increased punishment based on

that prior conviction. Id. § 851(d)(2). However, if the defendant

"files no response to the information, or if the court determines,

after hearing, that the person is subject to increased punishment

by reason of prior convictions," the prior conviction may be used

to support an increased punishment. Id. § 851(d)(1).

In this case, Curet initially filed a response under

§ 851(c), challenging the constitutionality of his April 2005

conviction. However, at sentencing, Curet's attorney explicitly

waived this claim, in light of the Massachusetts state court's

refusal to vacate that conviction.3

As a result, the court was not required to "hold a

hearing to determine any issues raised by the response," as

3
Both parties as well as the district court described the
state court's refusal to vacate the 2005 conviction as rendering
"moot" the § 851 challenge. We do not adopt that characterization.
It is not entirely clear whether the term was intended to refer to
the legal effects of the state-court decision on the federal-court
examination of the conviction under § 851, or, instead, used in a
more general sense to indicate that the challenge to the conviction
was no longer worth pursuing. However, Curet's attorney ultimately
agreed that the § 851 challenge was "waived." The state-court
decision would not of itself have precluded all challenges to the
information under § 851.

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required by § 851(c)(1), because the § 851 response had been

affirmatively withdrawn and waived.4 Curet's argument necessarily

rests upon a claim that the court's failure to conduct the colloquy

under § 851(b) constitutes reversible error.

We review failure to conduct a § 851(b) colloquy for

harmless error where there is an objection, and for plain error in

the absence of an objection. United States v. Dickerson, 514 F.3d

60, 64-65 (1st Cir. 2008). Here, there was no objection. Curet's

attorney made no objection. We do not view Curet's statements at

sentencing as requesting such a colloquy, but rather as explaining

the "reason why [he] took so long to plead guilty." This reading

is supported by the context of his attorney's waiver of the

challenge to the information. As a result, review is for plain

error.

To demonstrate plain error, Curet must show that "(1)

there is an error; (2) the error is plain or obvious; (3) the error

'affected [Curet's] substantial rights, which in the ordinary case

means it affected the outcome of the district court proceedings;'

and (4) 'the error seriously affect[s] the fairness, integrity or

4
Nothing in § 851 indicates that a defendant's written
response to an information, and a corresponding request for a
hearing under § 851(c), cannot be waived. Indeed, the fact that
the court must impose sentence upon the defendant "[i]f the
[defendant] files no response to the information" makes clear that
a court has no independent obligation to conduct a hearing under
§ 851(c) in the absence of a response to the information. See 21
U.S.C. § 851(d)(1).

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public reputation of judicial proceedings.'" United States v. De

Jesús-Viera, 655 F.3d 52, 57 (1st Cir. 2011) (second alteration in

original) (quoting United States v. Gerhard, 615 F.3d 7, 22 (1st

Cir. 2010)) (internal quotation marks omitted).

As a matter of statutory construction, the statute itself

does not make a violation of § 851(b) grounds to decline to impose

an enhanced sentence. In contrast to § 851(a)(1), subsection (b)

does not by its terms state that an enhanced sentence cannot be

imposed in the absence of a colloquy. See 21 U.S.C. § 851(a)(1)

("No person who stands convicted of an offense under this part

shall be sentenced to increased punishment by reason of one or more

prior convictions" unless an appropriate information is filed.).

Moreover, § 851(d)(1) makes clear that "[i]f the [defendant] files

no response to the information . . . the court shall proceed to

impose sentence upon him as provided by this part," with no mention

of the court's compliance with § 851(b) as a necessary

prerequisite. Id. § 851(d)(1).

We have held that "[t]he mere failure to conduct a

§ 851(b) colloquy is harmless error. . . . [A]ny reversible error

could only stem from specific problems related to the predicate

convictions." United States v. Henry, 519 F.3d 68, 74 (1st Cir.

2008). Curet does not raise any specific problems related to his

predicate conviction on appeal and so the argument fails.

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 Moreover, a primary purpose of § 851(b) is "to provide

notice of the convictions on which the government sought to rely

for the purposes of the sentencing enhancement." Henry, 519 F.3d

at 75; see also United States v. Espinal, 634 F.3d 655, 665 (2d

Cir. 2011) ("The purpose of § 851(b) is . . . to ensure defendants

are fully aware of their rights." (quoting United States v.

Baugham, 613 F.3d 291, 296 (D.C. Cir. 2010)) (internal quotation

marks omitted)). This purpose is made clear by the interplay of

§ 851(b) and (c). Section 851(b) provides that at the colloquy,

the defendant may "den[y] that he has been previously convicted as

alleged in the information." 21 U.S.C. § 851(b). Section

851(c)(1) begins by providing that "[i]f the person denies any

allegation of the information of prior conviction, or claims that

any conviction alleged is invalid, he shall file a written response

to the information." Id. § 851(c)(1). Accordingly, the typical

basis for finding reversible error on the basis of a § 851(b)

violation is that such a violation prevented a defendant from

filing a response under § 851(c) which may have been successful.

See Espinal, 634 F.3d at 666 (finding that failure to conduct a

§ 851(b) colloquy was not harmless error in part because had such

a colloquy been held, "it is at least possible that . . . [the

defendant] would have filed a written response"); United States v.

Ruiz-Castro, 92 F.3d 1519, 1536 (10th Cir. 1996) (finding that

failure to conduct a § 851(b) colloquy was not harmless error where

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the court "cannot conclude either that [the defendant] appreciated

his ability to challenge the prior conviction for sentencing

purposes or that any challenge to the prior conviction would have

been futile"), overruled on other grounds by United States v.

Flowers, 464 F.3d 1127 (10th Cir. 2006).

Here, the fact that Curet had filed a response under

§ 851(c), but later chose to withdraw it, "demonstrate[s] that

[Curet] fully understood which convictions were referenced in the

Information." Henry, 519 F.3d at 75.

While there was no plain error here, the district court

did have an obligation to conduct an inquiry under § 851(b), as

defendants are entitled to the colloquy regardless of whether the

§ 851(c) objection was waived. See Carachuri-Rosen, 130 S. Ct. at

2582 & n.6, 2587 (characterizing the court's obligation to conduct

an inquiry under § 851(b) as "mandatory"). The district court's

failure to conduct such an inquiry was, as the government concedes,

error, but it does not provide grounds for reversal here.

B. Career Offender Classification

The legal interpretation of the guidelines at issue here

is reviewed de novo. United States v. Vázquez-Botet, 532 F.3d 37,

65 (1st Cir. 2008).

To be deemed a career offender, a defendant must, among

other requirements, have "at least two prior felony convictions of

either a crime of violence or a controlled substance offense."

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U.S.S.G. § 4B1.1(a)(3). Curet argues that he did not have two

valid predicate convictions, and was therefore improperly

classified as a career offender under the sentencing guidelines.

Curet's career offender classification was originally

based on three prior convictions: (1) the 2005 state-court

conviction for distribution of class D substances that was outlined

in the § 851 information, (2) a 2003 state-court "youthful

offender" adjudication of distribution of class B substances and

distribution of controlled substance in a school zone, and (3) a

2003 state-court "guilty-filed" disposition for resisting arrest,

which took place when he was age seventeen.

To the extent that Curet raises any challenge to the use

of the 2005 state conviction as a predicate offense, that challenge

is based on the § 851 argument, which was rejected above.5 As a

result, that conviction is a valid predicate offense.

Curet's claim that the 2003 youthful offender

adjudication is not a valid predicate offense is correct, as the

government concedes, under our decision in United States v. McGhee,

651 F.3d 153 (1st Cir. 2011). McGhee overruled prior circuit

5
Because Curet's challenge to the § 851 information fails on
its own terms, we need not address whether a successful challenge
would result in the challenged prior conviction no longer
qualifying as a career offender predicate. Section 851, by its own
terms, applies only to sentencing "as provided by this part." 21
U.S.C. § 851(d)(1)-(2). We have held that § 851 is triggered only
by enhancements to defendants' statutory minimum or maximum
penalties under that part, and not to increases in defendants'
guidelines ranges based on the fact of prior convictions. United
States v. Sanchez, 917 F.2d 607, 616 (1st Cir. 1990).

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precedent, on which the district court relied, and held that

Massachusetts "youthful offender" adjudications are not career

offender predicates, because such adjudications are not classified

as adult convictions under state law. Id. at 158.

As a result, the validity of Curet's career offender

classification turns on whether his 2003 guilty-filed disposition

is a valid career offender predicate. Curet raises two arguments

as to why it is not a valid predicate. First, Curet contends that

under McGhee and the relevant language of the guidelines, state law

governs whether the disposition is a conviction within the meaning

of the guidelines. Curet reasons that because Massachusetts does

not consider guilty-filed dispositions to be convictions, the

disposition may not be deemed a conviction for purposes of the

guidelines. Second, Curet argues that, even if federal law governs

whether the guilty-filed disposition is a conviction, the relevant

portions of the guidelines indicate that such a disposition is not

a conviction.

Both of Curet's arguments fail; the district court did

not err in counting Curet's guilty-filed disposition as a career

offender predicate conviction under the guidelines.6

We explain the nature of Curet's guilty-filed disposition

under Massachusetts law.

6
We do not address the government's contention that Curet
waived any challenge to his career offender status because he
agreed, at the sentencing hearing, with the district court's
conclusion that he was a career offender.

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 1. Massachusetts Guilty-Filed Dispositions

The effect of a guilty-filed disposition in Massachusetts

is to suspend sentencing of the defendant; such a disposition

occurs after either a verdict or plea establishing the defendant's

guilt. The "seminal" state decision explains:

It has long been a common practice in this
Commonwealth, after verdict of guilty in a
criminal case, when the court is satisfied
that, by reason of extenuating circumstances,
or of the pendency of a question of law in a
like case before a higher court, or other
sufficient cause, public justice does not
require an immediate sentence, to order, with
the consent of the defendant and of the
attorney for the Commonwealth, and upon such
terms as the court in its discretion may
impose, that the indictment be laid on file
. . . .

Commonwealth v. Simmons, 863 N.E.2d 549, 555 (Mass. 2007) (omission

in original) (quoting Commonwealth v. Dowdican's Bail, 115 Mass.

133, 136 (1874)) (internal quotation marks omitted). While

Dowdican's Bail refers to guilty verdicts, the procedure often

occurs in the context of guilty pleas. See, e.g., Commonwealth v.

Stroyny, 760 N.E.2d 1201, 1205 n.1 (Mass. 2002) ("Those guilty

pleas were placed on file."); MacDonnel v. Commonwealth, 230 N.E.2d

821, 822 (Mass. 1967) ("[H]e pleaded guilty and the complaint was

placed on file."). Both the Commonwealth, Commonwealth v. Powell,

901 N.E.2d 686, 693 (Mass. 2009), and the defendant, Simmons, 863

N.E.2d at 559, must consent to placing a case on file. There is

some language suggesting that Massachusetts law does not regard

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guilty-filed dispositions as convictions because, under state law,

"a judgment of conviction does not enter unless sentence is

imposed," and placing a case "on file," by definition, means that

a sentence is not imposed at that point. Simmons, 863 N.E.2d at

551 n.2. We need not decide this question.

The practice of placing cases on file has been explained

as "a predecessor to modern probation," because it "allow[s] the

would-be sentencing judge discretion in circumstances adjudged to

be unduly harsh." Id. at 554-55. When a guilty-filed disposition

occurs, "the court retains the ability, at any time, to remove the

indictment from the file," and to sentence the defendant. Id. at

557. In its most recent decision addressing this practice, the

Supreme Judicial Court (SJC) explained that "the purpose of placing

a case 'on file' is to suspend sentencing indefinitely, not to

prevent a guilty finding from entering on the record." Powell, 901

N.E.2d at 693 (emphasis added) (citation omitted). The SJC

reasoned that where a guilty plea was entered, and the judge said

she had placed the case on file but declined to enter a guilty

finding, the case was, in fact, not placed "on file," but rather

the judge's disposition constituted a continuance without a

finding.7 Id.

7
There are a few instances where indictments have been
placed "on file" before any admission of guilt has taken place, see
Commonwealth v. Jones, 287 N.E.2d 599, 600 n.1 (Mass. 1972) ("Count
2 of the indictment was not tried but was placed on file with a
plea of not guilty."); Commonwealth v. Bishop, No. 06-P-215, 2008
WL 2064665, at *1 (Mass. App. Ct. May 16, 2008) ("[T]he jury

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 In this case, the PSR clearly states that the disposition

was "Guilty, Filed," and that was not challenged. Curet now

asserts that "there is no evidence in the record that Mr. Curet in

fact pleaded guilty or nolo contendere," but there was no objection

to the PSR's description of the charge of resisting arrest as

"Guilty, Filed."8

The PSR also makes clear that Curet's guilty-filed

disposition took place in the Roxbury District Court. The

government asserts, and Curet concedes, that the fact that Curet

was proceeded against in district court means that he was proceeded

against as an adult, even though he was seventeen at the time of

the offense. See Mass. Gen. Laws ch. 218, § 1 (establishing the

Roxbury division of the Boston municipal court, and providing that

"[c]ases of delinquent children under" Mass. Gen. Laws ch. 119,

§§ 52-84, which govern youthful offenders, "are excepted from the

jurisdiction" of that court, and instead the juvenile court located

in the city of Boston has jurisdiction); see also 1997 Mass. Acts

ch. 208, § 1 (abolishing the jurisdiction of the district court

returned a verdict of not guilty, after which the trial judge
placed the charge on file."), although this practice is
questionable after Commonwealth v. Powell, 901 N.E.2d 686 (Mass.
2009), which would seem to require such a disposition to be treated
as a continuance without a finding.
8
Curet did object to the inclusion of the guilty-filed
disposition in the PSR "to the extent that it fails to reflect that
Count 1 (Possession of Class D) was dismissed, and that the guilty-
filed disposition was for the charge of resisting arrest (Count
2)," and the PSR was corrected to reflect this fact.

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juvenile sessions as of the date the juvenile court for each

jurisdiction becomes operational, or January 1, 1999, "whichever

shall first occur"). Against this background, we turn to the

federal question of the meaning of "conviction."

2. The Claim that State Law Controls

Curet's first argument is that state law controls the

determination of whether a disposition is an "adult conviction"

within the meaning of the guidelines. Curet's argument hinges upon

the application note defining a "prior felony conviction":

"Prior felony conviction" means a prior adult
federal or state conviction for an offense
punishable by death or imprisonment for a term
exceeding one year, regardless of whether such
offense is specifically designated as a felony
and regardless of the actual sentence imposed.
A conviction for an offense committed at age
eighteen or older is an adult conviction. A
conviction for an offense committed prior to
age eighteen is an adult conviction if it is
classified as an adult conviction under the
laws of the jurisdiction in which the
defendant was convicted (e.g., a federal
conviction for an offense committed prior to
the defendant's eighteenth birthday is an
adult conviction if the defendant was
expressly proceeded against as an adult).

U.S.S.G. § 4B1.2 cmt. n.1 (emphasis added). Curet argues that

under the language of this application note, in order for a

conviction for an offense committed under the age of eighteen to be

an adult conviction, it must be "classified as an adult conviction

under the laws of the jurisdiction in which the defendant was

convicted." Curet argues that because Massachusetts law does not

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define guilty-filed dispositions as convictions, his guilty-filed

disposition is not a conviction within the meaning of the

guidelines.

This argument fails. As a textual matter, the

application note itself presupposes that there is an independent,

federal definition of the term conviction, and the purpose of

looking to the law of the jurisdiction of conviction is simply to

determine whether the conviction is adult in nature.

There is no dispute here that under state law, Curet was

treated as an adult. The note, which is addressed to that issue,

does not assist his argument that state law governs what is a

conviction. The application note states that "[a] conviction for

an offense committed prior to age eighteen is an adult conviction

if it is classified as an adult conviction under the laws of the

jurisdiction in which the defendant was convicted." Id. (emphasis

added). The plain language makes clear that this application note

provides that the law of the jurisdiction of conviction only

governs in determining whether "[a] conviction . . . is an adult

conviction," not in determining whether there is a conviction in

the first place.9

9
This language is distinct from that of the Armed Career
Criminal Act (ACCA). The ACCA, unlike the guidelines, mandates
that "[w]hat constitutes a conviction of such crime shall be
determined in accordance with the law of the jurisdiction in which
the proceedings were held." 18 U.S.C. § 921(a)(20). It is for
this reason that Curet's reliance on United States v. Carey, 716 F.
Supp. 2d 56 (D. Me. 2010), is misplaced. There, the court held
that a guilty-filed disposition was not a conviction for purposes

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 The guidelines provide detailed guidance on what

constitutes a "conviction." Application note 3 provides that

"[t]he provisions of § 4A1.2 (Definitions and Instructions for

Computing Criminal History) are applicable to the counting of

convictions under § 4B1.1." Id. § 4B1.2 cmt. n.3. This

application note "directs that 'convictions' of a certain type be

counted, and other guidelines and commentary which elaborate upon

the events to be counted essentially define that which is a

conviction." United States v. Pierce, 60 F.3d 886, 892-93 (1st

Cir. 1995).

Second, Curet's reading is undermined by the remainder of

the application note. The sentence immediately prior to the

sentence Curet relies on provides that "[a] conviction for an

offense committed at age eighteen or older is an adult conviction,"

with no reference to state law. U.S.S.G. § 4B1.2 cmt. n.1. This

sentence reinforces that the question of what constitutes a

"conviction" is separate from, and logically prior to, the question

of whether such a conviction is an "adult" conviction.

Moreover, interpreting the guidelines in the manner Curet

advocates would result in an inconsistent definition of conviction

of determining whether an individual is an armed career criminal
under the ACCA. Id. at 66. Carey reached this conclusion based on
the fact that Massachusetts courts do not denominate guilty-filed
dispositions "convictions." Id. at 65-66. We do not comment on
whether Carey was correctly decided, but even assuming it was, the
ACCA language at issue in Carey differs from the language of the
guidelines at issue here.

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within this application note. State law would govern whether a

particular disposition of a case constitutes a "conviction" for

those under the age of eighteen, but the guidelines would determine

whether that disposition is a "conviction" for those over eighteen.

We see no reason why the guidelines would take such an inconsistent

approach regarding what constitutes a conviction, and do not read

them that way.

Third, our case law holds that "for purposes of the

career offender provisions, whether or not a state disposition

constitutes a 'conviction' is determined by reference to federal

law and the Guidelines," not state law. United States v. Lindia,

82 F.3d 1154, 1163 (1st Cir. 1996). While Lindia did not address

the particular language that Curet relies upon, it does illustrate

that typically federal law governs the matter.

Our decision in McGhee is not to the contrary. There, we

addressed the question of whether a Massachusetts "youthful

offender" conviction of someone under the age of eighteen was an

"adult conviction" under the guidelines. 651 F.3d at 156. At

issue in McGhee was not the definition of "conviction," but rather

the question of "whether the conviction is 'classified' as an adult

offense 'under the laws of the jurisdiction' of conviction." 651

F.3d at 157 (quoting U.S.S.G. § 4B1.2 cmt. n.1). In McGhee, there

was no dispute about whether the youthful offender adjudication was

a conviction; the dispute focused on whether it was an adult

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conviction. McGhee accordingly held that state law is relevant to

determining whether a conviction is an adult conviction, not

whether it is a conviction.

3. Curet's Argument that the Guidelines Do Not Deem
Guilty-Filed Dispositions to Be Convictions

Curet argues that, even if federal law under the

guidelines governs what constitutes a conviction, the relevant

guideline provisions require that his guilty-filed disposition not

be deemed a "conviction," and thus may not serve as a career

offender predicate. This belated argument also fails.10

The career offender guidelines provide that the

provisions of U.S.S.G. § 4A1.2 apply to the counting of convictions

for career offender purposes. U.S.S.G. § 4B1.2 cmt. n.3. Curet's

argument relies on § 4A1.2(d). This section is entitled "Offenses

Committed Prior to Age Eighteen," and provides, in full:

(1) If the defendant was convicted as an adult
and received a sentence of imprisonment
exceeding one year and one month, add 3 points
under §4A1.1(a) for each such sentence.

(2) In any other case,

(A) add 2 points under §4A1.1(b) for
each adult or juvenile sentence to
confinement of at least sixty days if

10
The argument is arguably waived, as it was not made until
Curet's response to a 28(j) letter. This argument was not
influenced by McGhee or any other intervening authority, and could
-- and should -- have been made in the initial brief. Curet's
briefing only argued that state law controls whether a guilty-filed
disposition constitutes a conviction. Nevertheless, since we
reject the argument on its own terms, we bypass the question of
waiver.

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 the defendant was released from such
confinement within five years of his
commencement of the instant offense;

(B) add 1 point under §4A1.1(c) for
each adult or juvenile sentence imposed
within five years of the defendant’s
commencement of the instant offense not
covered in (A).

Id. § 4A1.2(d).

Curet argues that subsection (2)(B) is the only provision

that could apply to his guilty-filed disposition, and that because

there was no "sentence imposed" as a result of such disposition,

subsection (2)(B) does not apply, and the guilty-filed disposition

is not a conviction. Curet also points to the application note

interpreting this section, which explains that "for offenses

committed prior to age eighteen, only those that resulted in adult

sentences of imprisonment exceeding one year and one month, or

resulted in imposition of an adult or juvenile sentence or release

from confinement on that sentence within five years of the

defendant's commencement of the instant offense are counted." Id.

§ 4A1.2 cmt. n.7.

We do not need to address the merits of Curet's

interpretation of § 4A1.2(d) and the application note. Curet's

argument assumes as its premise that § 4A1.2(d) governs all

offenses committed prior to age eighteen. This premise is

incorrect, and instead a separate subsection requires treating the

guilty-filed disposition as a conviction.

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 Section 4A1.2(f), entitled "Diversionary Dispositions"

provides, in full:

Diversion from the judicial process without a
finding of guilt (e.g., deferred prosecution)
is not counted. A diversionary disposition
resulting from a finding or admission of guilt,
or a plea of nolo contendere, in a judicial
proceeding is counted as a sentence under
§4A1.1(c) even if a conviction is not formally
entered, except that diversion from juvenile
court is not counted.

Id. § 4A1.2(f).

The final portion of this provision undermines Curet's

premise that only subsection (d) applies to offenses committed

prior to age eighteen: if that were so, there would be no need for

the language "except that diversion from juvenile court is not

counted." Subsection (f) thus may apply to offenses committed

prior to the age of eighteen, so long as its other requirements are

satisfied. See United States v. Fraser 388 F.3d 371, 375 (1st Cir.

2004) (per curiam) (finding a disposition that occurred prior to

age eighteen was a countable diversionary disposition under

§ 4A1.2(f)); United States v. DiPina, 230 F.3d 477, 482-83 (1st

Cir. 2000) (assessing whether certain "juvenile dispositions" were

"diversionary within the meaning of § 4A1.2(f)").

The question is whether the guilty-filed disposition is

(1) "[a] diversionary disposition" (2) "resulting from a finding or

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admission of guilt."11 We hold that the guilty-filed disposition

in this case is a diversionary disposition within the meaning of

this subsection.

Curet, correctly, does not dispute that the guilty-filed

disposition is "diversionary" in nature. Diversionary dispositions

involve circumstances where "either the adjudication or the

sentence was deferred in some way," DiPina, 230 F.3d at 483, as is

the case here.

Guilty-filed dispositions also involve "a finding or

admission of guilt" within the meaning of the guidelines. The

application note to the diversionary disposition provision explains

that the diversionary disposition must "involve[] a judicial

determination of guilt or an admission of guilt in open court."

U.S.S.G. § 4A1.2 cmt. n.9. The existence of "a guilt-establishing

event . . . , and not the formal entry of an adjudicatory judgment,

determines whether and when there has been a countable

'conviction.'" Pierce, 60 F.3d at 892. This is so because

subsection (f), by its own terms, provides that a diversionary

disposition with a finding or admission of guilt is a conviction

11
We do not need to address whether the requirement of
subsection (d)(2)(B) that, for offenses committed before the age of
eighteen, the sentence must have been imposed within five years of
the defendant's commencement of the instant offense, applies to
diversionary dispositions that occur before the age of eighteen and
that are not diversions from juvenile court. Here, the defendant's
guilty-filed disposition took place in October 2003, and the
instant offense's conduct began in September 2007, well within the
five-year period.

-26-
under the guidelines "even if a conviction is not formally

entered." U.S.S.G. § 4A1.2(f); see also United States v. Martinez-

Melgar, 591 F.3d 733, 737 (4th Cir. 2010) (rejecting defendant's

argument that "a qualifying prior sentence requires formal entry of

a plea or of a judgment of conviction" based on the plain meaning

of this section).

The nature of a guilty-filed disposition under

Massachusetts law means there has been "a guilt-establishing event"

within the meaning of U.S.S.G. § 4A1.2(f). It means that there has

either been a verdict or a plea of guilty in the case. Moreover,

the SJC has made clear that "the purpose of placing a case 'on

file' is to suspend sentencing indefinitely, not to prevent a

guilty finding from entering on the record." Powell, 901 N.E.2d at

693 (citation omitted).

Our holding that guilty-filed dispositions constitute

diversionary dispositions within the meaning of the guidelines

accords with our holdings in prior cases. See Griffiths v. INS,

243 F.3d 45, 52-54 (1st Cir. 2001) (holding that a guilty-filed

disposition was a "conviction" for purposes of the Immigration and

Nationality Act); United States v. Morillo, 178 F.3d 18, 21 (1st

Cir. 1999) (holding that a Massachusetts state-court "continuance

without a finding" amounts to a diversionary disposition under

§ 4A1.2(f)).

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 As said, the guilty-filed disposition procedure in

Massachusetts is "a predecessor to modern probation." Simmons, 863

N.E.2d at 554-55. It allows for the court to abstain from imposing

a sentence against a defendant if both parties consent and the

court finds such a result consistent with the interests of justice.

This disposition falls squarely within the purpose of the

diversionary disposition provision. See U.S.S.G. § 4A1.2 cmt. n.9.

Because the guilty-filed disposition was a diversionary

disposition, it must be "counted as a sentence under § 4A1.1(c)."

Id. § 4A1.2(f). Because it counts as a sentence under that

subsection, it also counts as a "conviction" for career offender

purposes, pursuant to U.S.S.G. § 4B1.2 cmt. n.3. This conviction

is also an "adult conviction" within the meaning of the guidelines,

as Curet was expressly proceeded against as an adult under state

law, as is discussed above. The 2003 guilty-filed disposition is

a valid prior conviction for career offender purposes. In

conjunction with Curet's 2005 conviction, Curet has two valid

career offender predicates, and the district court did not err in

finding that Curet was a career offender.12

12
Curet also argues that his resisting arrest disposition is
not a "crime of violence" within the meaning of the guidelines and
thus may not serve as a career offender predicate. See U.S.S.G.
§ 4B1.1. This argument fails. We have previously held that
resisting arrest is a crime of violence. See United States v.
Weekes, 611 F.3d 68, 72-73 (1st Cir. 2010), cert. denied, 131 S.
Ct. 3021 (2011). Nothing in Sykes v. United States, 131 S. Ct.
2267 (2011), which held that an Indiana conviction for felony
vehicle flight is a violent felony for purposes of the Armed Career
Criminal Act, changes this result.

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C. Retroactive Application of the Fair Sentencing Act and
the Sentencing Guidelines Amendment

Curet's final claim is that the Fair Sentencing Act of

2010 (FSA), Pub. L. No. 111-220, 124 Stat. 2372, and/or the

amendments to the sentencing guidelines implementing that Act,

should be retroactively applied to him. This claim fails.

Curet was sentenced on February 2, 2010; the relevant

quantity of cocaine base was 13.95 grams. At the time he was

sentenced, defendants were subject to a mandatory minimum of five

years for "5 grams or more of a mixture or substance . . . which

contains cocaine base." 21 U.S.C. § 841(b)(1)(B)(iii) (2008).

Defendants who committed such a violation after a prior conviction

for a felony drug offense were subject to a ten-year mandatory

minimum. Id. § 841(b)(1)(B) (2008). Under the FSA, 13.95 grams

would not subject a defendant to a mandatory minimum: 28 grams or

more are required for a five-year mandatory minimum. 21 U.S.C.

§ 841(b)(1)(B)(iii)(2011); see also Pub. L. No. 111-220, § 2(a)(2),

124 Stat. at 2372.

However, we have held that the FSA does not apply to

individuals who were sentenced before the FSA was signed into law

on August 3, 2010. United States v. Goncalves, 642 F.3d 245, 252-

55 (1st Cir. 2011), cert. denied, 80 U.S.L.W. 3298, 2011 WL 4915316

-29-
(U.S. Nov. 14, 2011). Here, Curet's sentencing took place before

the FSA became effective, and so the FSA does not apply.13

Curet also makes an argument based on the amendment to

the federal sentencing guidelines in the wake of the FSA. The FSA

provided the United States Sentencing Commission with emergency

authority to make conforming amendments to the sentencing

guidelines that the Commission determined were necessary. Pub. L.

111-220, § 8, 124 Stat. at 2374. On October 27, 2010, the

Sentencing Commission promulgated a temporary emergency amendment.

75 Fed. Reg. 66,188 (Oct. 27, 2010). Among other changes, this

amendment altered the drug quantity tables of the guidelines,

located in § 2D1.1 and § 2D2.1, increasing the required quantity to

be subject to each base offense level in a manner proportionate to

the statutory change to the mandatory minimums effectuated by the

FSA. 75 Fed. Reg. at 66,191. These changes were re-promulgated as

permanent amendments to the guidelines on May 3, 2011. 76 Fed.

Reg. 24,960, 24,963 (May 3, 2011). On July 13, 2011, the

Commission announced that it had decided to make the amendment to

the drug quantity tables retroactive. 76 Fed. Reg. 41,332, 41,333

(July 13, 2011). This took effect on November 1, 2011, when the

new edition of the guidelines became effective. See U.S.S.G.

13
The Supreme Court has granted certiorari to address whether
the FSA applies to all individuals who were sentenced after the Act
became effective. See United States v. Fisher, 635 F.3d 336 (7th
Cir. 2011), cert. granted sub nom., Dorsey v. United States, 80
U.S.L.W. 3311, 2011 WL 3422126 (U.S. Nov. 28, 2011). Curet is not
in that position.

-30-
§ 1B1.10(c) (including Amendment 750 to the guidelines, which

altered the drug quantity tables based on the FSA, in the list of

amendments that are given retroactive effect).

While the amendments to the guidelines are retroactive,

they are of no help to Curet because he is a career offender. If

only the amended guidelines were the basis for the sentence, Curet

would have a somewhat reduced base offense level under the amended

drug quantity table -- a reduction from 24 to 20. See U.S.S.G.

§ 2D1.1(c). But this base offense level is irrelevant given

Curet's career offender status. For career offenders, a separately

specified base offense level is to apply if it is "greater than the

offense level otherwise applicable." Id. § 4B1.1(b). Here, Curet

was subject to a career offender base offense level of 37, because

the maximum statutory penalty he could have been subject to was

life imprisonment. See id.; 21 U.S.C. § 841(b)(1)(B) (2008)

(maximum statutory penalty for those who commit a drug violation

after a prior conviction for a felony drug offense is "life

imprisonment"). This career offender offense level, which was

reduced by 2 for a total of 35, renders irrelevant any reduction in

the base offense level.

Finally, Curet argues that even if the guidelines

themselves do not apply to him, the fact that they were made

retroactive should mean that the FSA itself is retroactively

applicable. Curet cites no authority for the proposition that the

-31-
Sentencing Commission's determination to make certain guideline

provisions retroactive could somehow give retroactive force to a

statute, and it is illogical. The provision granting the

Commission authority to make provisions of the guidelines

retroactive provides no such authority; it simply provides that

"[i]f the Commission reduces the term of imprisonment recommended

in the guidelines applicable to a particular offense or category of

offenses, it shall specify in what circumstances and by what amount

the sentences of prisoners serving terms of imprisonment for the

offense may be reduced." 28 U.S.C. § 994(u). Indeed, the

Sentencing Commission's own promulgation of the retroactive

amendment explains that "[t]he Fair Sentencing Act of 2010 did not

contain a provision making the statutory changes retroactive," and

the Commission's amendment to the guidelines "does not make any of

the statutory changes in the Fair Sentencing Act of 2010

retroactive." 76 Fed. Reg. at 41,333. Curet's final claim fails.

III.

The district court committed no reversible error in

sentencing Curet. Curet has been ably represented, but we reject

his arguments and affirm his sentence.

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