United States v. Albanese

United States Court of Appeals
For the First Circuit

No. 01-1744

UNITED STATES OF AMERICA,
Appellee,

v.

RICHARD ALBANESE,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,

and McAuliffe,* District Judge.

Marcia G. Shein, on brief, for appellant.
Donald C. Lockhart and Kenneth P. Madden, Assistant U.S.
Attorneys, with whom Margaret E. Curran, United States Attorney,
were on brief, for appellee.

April 24, 2002

*
Of the District of New Hampshire, sitting by designation.
 Per Curiam. Defendant Richard Albanese was convicted of

conspiracy to distribute drugs, possession of marijuana, and money

laundering. He appeals the sentence he received, alleging that the

district court erred in calculating his Criminal History Category

and that his counsel provided ineffective assistance at sentencing.

Because we find that the defendant was not prejudiced by any

alleged error, we affirm his sentence.

I.

On April 5, 2000, defendant Albanese was named in a six-

count indictment that charged him with: conspiracy to distribute
and possess with intent to distribute over 1,000 kilograms of
marijuana (Count I); possession with intent to distribute over 100
kilograms of marijuana (Counts III and IV); conspiracy to

distribute and possess with intent to distribute over 100 kilograms
of marijuana (Count V); and attempted possession with intent to
distribute over 100 kilograms of marijuana (Count VI).

Counts V and VI were severed, and the defendant proceeded
to trial on these counts. On November 17, 2000, after a three-day
trial, the jury convicted Albanese on Count VI. The district court
declared a mistrial as to Count V.

On January 31, 2001, the defendant entered into a plea

agreement to plead guilty to Counts I, III, and IV. Under the

agreement the defendant was also obligated to plead guilty to a

one-count information, to be filed by the government, charging the

defendant with money laundering, in violation of 18 U.S.C. § 1957.

All counts were consolidated for sentencing.

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 The Probation Department issued a final Presentence

Report ("PSR") on April 30, 2001. In calculating the defendant's

criminal history score, the PSR included the following prior
convictions: (1) a 1992 Rhode Island conviction for forgery and

counterfeiting ("first Rhode Island conviction"); (2) 1992 Rhode

Island convictions for forgery, counterfeiting, and obtaining
property by false pretenses ("second Rhode Island conviction"); (3)

1992 Rhode Island controlled substance convictions ("third Rhode

Island conviction"); and (4) a 1995 Massachusetts conviction for

possession with intent to distribute marijuana ("1995 Massachusetts

conviction"). These prior convictions, each worth one point,

yielded a total of four criminal history points. The PSR then

added two additional criminal history points, pursuant to U.S.S.G.
§ 4A1.1(d), because the defendant had committed the instant federal

offenses while he was still serving sentences for the second Rhode

Island conviction and the 1995 Massachusetts conviction. Thus,
totaling the criminal history points for a score of six, the PSR

placed the defendant in Criminal History Category III. Combining

this with a total offense level of 30, the applicable sentencing

guideline range was 121 to 151 months' imprisonment.

The district court, accepting the PSR without objection

from either party, sentenced the defendant to concurrent sentences

of 121 months on Counts I, III, IV, and VI, and 60 months on the

money laundering charge. The defendant filed a timely appeal,

arguing that the district court erred in calculating his criminal

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history score and that his counsel was ineffective at the

sentencing hearing.

II.

We review alleged sentencing errors to which a party did

not contemporaneously object for plain error. See United States v.

Olano, 507 U.S. 725, 731-32 (1993); United States v. Torres-Rosa,

209 F.3d 4, 8 (1st Cir. 2000). To establish plain error, a

defendant must demonstrate that a clear or obvious error both

affected his substantial rights and adversely impacted the

fairness, integrity, or public reputation of judicial proceedings.
See Olano, 507 U.S. at 732-36.

III.

The defendant asserts that the district court erred in

calculating his criminal history score in two ways: (1) the court
failed to exclude the defendant's 1995 Massachusetts conviction
pursuant to U.S.S.G. § 4A1.2(a)(1); and (2) the court, contrary to

U.S.S.G. § 4A1.2(a)(2), treated the first and second Rhode Island
convictions as two separate offenses, rather than as one.
The Sentencing Guidelines dictate that criminal history
points be ascribed to a defendant for "each prior sentence" he has

received. U.S.S.G. § 4A1.1. A "prior sentence" is defined as "any

sentence previously imposed upon adjudication of guilt . . . for

conduct not part of the instant offense." Id. § 4A1.2(a)(1). The

district court, based on the PSR, attributed one point to Albanese

for each of the following "prior sentences": (1) the first Rhode

Island conviction; (2) the second Rhode Island conviction; (3) the

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third Rhode Island conviction; and (4) the 1995 Massachusetts

conviction.

Albanese contends that it was error to include the 1995
Massachusetts conviction as a "prior sentence" because such

conviction was based on conduct that is part of the instant

offense. Assuming, arguendo, that the 1995 Massachusetts
conviction should not have been counted as a "prior sentence," the

defendant would have received three, instead of four, points based

on his past sentences.

Albanese further argues that the court erred by treating

the first and second Rhode Island convictions as separate "prior

sentences" since these convictions were "related cases." The

Sentencing Guidelines stipulate: "Prior sentences imposed in
unrelated cases are to be counted separately. Prior sentences

imposed in related cases are to be treated as one sentence for

purposes of § 4A1.1(a), (b), and (c)." Id. § 4A1.2(a)(2). Again,
assuming, but not deciding, that the defendant states a valid claim

of error, the district court should have assigned one criminal
point, instead of two, for these two Rhode Island convictions.

The district court, pursuant to the PSR, assigned to the

defendant, in addition to the points for "prior sentences," two

points for "committ[ing] the instant offense while under any

criminal justice sentence." Id. § 4A1.1(d). The court determined

that Albanese was still serving his sentences for both the second

Rhode Island conviction and the 1995 Massachusetts conviction at

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the time he committed the instant federal offense. The defendant

does not contest these two criminal history points.

We need not address the merits of the alleged errors,
because even if we assume, arguendo, that the district court did

err by assigning the defendant one point for the 1995 Massachusetts

conviction and two points, instead of one, for the first and second
Rhode Island convictions, Albanese still has not demonstrated plain

error. One of the requirements of plain error is that a defendant

establish that the alleged error affected his substantial rights.

See Olano, 507 U.S. at 734; United States v. Duarte, 246 F.3d 56,

60 (1st Cir. 2001). This entails a showing that the error was

prejudicial because it affected the outcome of the case. See

Olano, 507 U.S. at 734; United States v. Hernández-Vega, 235 F.3d
705, 712 (1st Cir. 2000). Albanese fails to demonstrate any

prejudice.

If we were to credit Albanese's allegations of error, his
criminal history score would not be six points, as calculated in

the PSR, but four points. However, this point reduction would not

change Albanese's Criminal History Category, since Category III

covers criminal history scores ranging from four to six points. As

a result, since no other errors were alleged, the applicable

guideline range of 121 to 151 months' imprisonment would remain

unchanged. Thus, even assuming error occurred, it was not

prejudicial because it did not affect the defendant's sentence.1

1
Albanese further suggests that the alleged errors were
prejudicial because, if the district court had properly calculated
the criminal score to be four points, it could have found that

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 Albanese also raises an ineffective assistance of counsel

claim based on his attorney's failure to object to the criminal

history calculations at the sentencing hearing. We have
steadfastly held that we will not hear these claims for the first

time on direct appeal. See United States v. Ortiz, 23 F.3d 21, 26

(1st Cir. 1994); United States v. Costa, 890 F.2d 480, 482-83 (1st
Cir. 1989) (noting that "[t]he reason for the rule is that a trial

judge is in the best position to evaluate the quality of legal

representation in the first instance"). This case presents no

reason to depart from this standard.

IV.

Accordingly, we affirm the defendant's sentence.

Criminal History Category III over-represented the seriousness of
the defendant's criminal history and chosen, sua sponte, to depart
from the applicable guideline range. See U.S.S.G. § 4A1.3(e), p.s.
A remote possibility that the outcome could have been affected is
not sufficient to fulfill the defendant's burden of proving
prejudice. See United States v. Sposito, 106 F.3d 1042, 1049-50
(1st Cir. 1997) (finding that "it is not enough, under the plain
error standard, that the error could have changed the outcome,"
rather "the error must have done so"); United States v. Procopio,
88 F.3d 21, 31 (1st Cir. 1996) (stating that "mere possibilities
are not enough" to show prejudice).

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