United States v. Rosalio Correa

                  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
                       

                                2


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).

                                3


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.

                                4


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).
                                                       

                                5


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).

                                6


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
                                                 

                                7


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

                                8


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,

                                9


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

                                10


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

                                11


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

                                12


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).

                                13