United States Court of Appeals
For the First Circuit
No. 09-1626
UNITED STATES OF AMERICA,
Appellee,
v.
ORLANDO MALDONADO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.
George F. Gormley, by appointment of the court, with whom
Stephen P. Super and George F. Gormley, P.C. were on brief for
appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, and Jennifer Hay Zacks,
Assistant United States Attorney, were on brief for appellee.
July 26, 2010
BOUDIN, Circuit Judge. On June 12, 2008, Orlando
Maldonado pled guilty to counts related to his role in a conspiracy
to distribute in excess of 20 kilograms of cocaine and was
sentenced to 120 months' imprisonment, reflecting a ten-year
mandatory minimum imposed by statute. 21 U.S.C § 841(b)(1)(A)(ii)
(2006). However, the mandatory minimum was subject to a safe
harbor exception. Maldonado claims that the district court
miscalculated his criminal history, depriving him of this exception
and (potentially) a somewhat lower sentence. The facts are not
complicated.
Before entering into a plea agreement in the drug case,
Maldonado requested that a pre-sentence report ("PSR") be prepared.
The PSR deemed Maldonado responsible for three transactions
involving 28.5 kilograms of cocaine, producing a base offense level
of 34, which was reduced to 31 after a three level adjustment for
acceptance of responsibility. U.S.S.G §§ 2D1.1(c)(3), 3E1.1
(2007). The PSR also assessed Maldonado two criminal history
points, one point for each of two prior Massachusetts offenses: a
conviction for driving under the influence in 1998 and a conviction
for "attaching plates" in 2001. U.S.S.G § 4A1.1.
The attaching plates offense--which is the focus of this
appeal--was for affixing license plates owned by another individual
to Maldonado's own car. M.G.L. ch. 90, § 23 (2009). This offense
was detected after Maldonado was pulled over in a routine traffic
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stop and produced a registration for his car that did not match the
vehicle's license plate number. The state prosecution was
continued without a finding ("CWOF") after Maldonado "admitted to
sufficient facts" at a disposition hearing in November 2001; the
effect was six months' unsupervised probation and eventual
dismissal of the case, but it counts as a conviction. U.S.S.G.
§ 4A1.2(f); United States v. Reyes, 386 F.3d 332, 334-35 & n.2 (1st
Cir. 2004) (per curiam).
After pleading guilty to the instant drug offense,
Maldonado asked the district court to determine his eligibility for
18 U.S.C. § 3553(f)'s "safety valve" adjustment; this exempts a
defendant from mandatory minimum sentences if certain conditions
are met--one being that the defendant "not have more than 1
criminal history point."1 Maldonado argued that attaching plates
was a minor offense that, under section 4A1.2(c) of the guidelines,
should not generate a criminal history point.
The district court disagreed and imposed the mandatory
minimum ten-year sentence from which Maldonado now appeals. Had
the court not counted the conviction, Maldonado could have
qualified for the safety valve exception if he had made the
required truthful proffer to the prosecutor of information
1
The other conditions are that the defendant not use violence
or possess a weapon, that the offense not result in death or
serious injury, that the defendant not organize the offense or
engage in a continuing criminal enterprise, and that the defendant
cooperate with the government. 18 U.S.C. § 3553(f)(2)-(5) (2006).
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concerning the crime. This would have eliminated the mandatory
minimum; and, as his adjusted offense level under the guidelines
equated to a range of 87 to 108 months, his sentence might well
have been lower. Maldonado had a number of convictions for other
offenses, but few apart from the recent drug transactions leading
to his present conviction were very significant.
Under the guidelines, prior misdemeanor convictions are
counted in a defendant's criminal history score except when each of
three conditions is satisfied: (1) the sentence imposed for the
prior conviction is less than one year's probation or 30 days'
imprisonment; (2) the prior offense is dissimilar to the offense
for which the defendant is now being prosecuted; and (3) the prior
offense is or is "similar to" one of the following offenses, which
we call the "listed offenses":
Careless or reckless driving
Contempt of court
Disorderly conduct or disturbing the peace
Driving without a license or with a revoked or
suspended license
False information to a police officer
Gambling
Hindering or failure to obey a police officer
Insufficient funds check
Leaving the scene of an accident
Non-support
Prostitution
Resisting arrest
Trespassing.
U.S.S.G. § 4A1.2(c)(1). (Section 4A1.2(c)(2) lists a number of
offenses that are never counted, such as minor traffic infractions,
but "attaching plates" is not on that list.)
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The first two conditions for exclusion of the attaching
plates offense are satisfied: Maldonado received only six months'
probation for his attaching plates offense, and attaching plates is
clearly dissimilar to the drug offenses for which he is now being
sentenced. Whether Maldonado would satisfy the proffer requirement
of providing truthful information was never determined, because the
court accepted the PSR recommendation that attaching plates was not
"similar to" one of the listed offenses. That ruling is the only
one before us on this appeal.
This issue turns on the application of general standards
to particular facts, but it implicates our reading of the guideline
and raises what may be a recurring question; so (in Maldonado's
favor) we review the ruling de novo rather than affording deference
to the district court's view.2 Conceivably, in a different case,
application of this guideline could involve disputed facts as to
which deference would certainly be due to the district judge's
findings, but no such disputes are apparent here.
The guidelines' application notes provide some limited
assistance in determining whether a prior offense is "similar to"
a listed offense:
2
Abstract legal issues under the guidelines are reviewed de
novo and factual findings for clear error, United States v.
Rivera-Rivera, 555 F.3d 277, 292 (1st Cir. 2009); but on law-
application questions, deferential review may be appropriate in
some cases and in others not. United States v. Stella, 591 F.3d
23, 27 (1st Cir. 2009).
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In determining whether an unlisted offense is
similar to an offense listed in subdivision
(c)(1) or (c)(2), the court should use a
common sense approach that includes
consideration of relevant factors such as (i)
a comparison of punishments imposed for the
listed and unlisted offenses; (ii) the
perceived seriousness of the offense as
indicated by the level of punishment; (iii)
the elements of the offense; (iv) the level of
culpability involved; and (v) the degree to
which the commission of the offense indicates
a likelihood of recurring criminal conduct.
U.S.S.G. § 4A1.2 cmt. n. 12; see also United States v. Hardeman, 933
F.2d 278, 281 (5th Cir. 1991). This portion of the application
notes became effective on November 1, 2007, U.S.S.G. app. C, amend.
709 (Supp. 2007), subsequent to the conduct in this case, but prior
to Maldonado's sentencing; however, it reflects common-sense
criteria that a court could employ with or without the application
note.
Maldonado argues that attaching plates "is similar to"
two listed offenses: (1) driving without a license or with a revoked
or suspended license, and (2) providing false information to a
police officer. Both driving without a license or with a revoked
or suspended license and providing false information to a police
officer resemble the attaching plates offense in that all three
involve affirmative misrepresentation to the authorities, either
explicit or implied. Two of the three are related directly to motor
vehicle operation and the third (lying to the police) often so.
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The government responds here, as it did in the district
court, that the Massachusetts crime of attaching plates includes as
an element the intention to conceal identity, which implies a
fraudulent purpose and differentiates it from the relevant listed
offenses. The attaching plates statute states that
any person who attaches or permits to be
attached to a motor vehicle or trailer a
number plate assigned to another motor vehicle
or trailer . . . with intent to conceal the
identity of such motor vehicle or trailer,
shall be punished by a fine of not more than
one hundred dollars or by imprisonment for not
more than ten days, or both.
Mass. Gen. Laws ch. 90, § 23 (emphasis added).
If this underscored language were taken to require some
additional malign purpose beyond knowledge that the plates were for
a different car--for example, to conceal the identity of a stolen
car in aid of a car theft--it would surely be worse than the usual
driving without a license offense. The district judge did not
explain his ruling but the PSR used a "fraud and deception" label
for the attaching plates offense, echoing the government's position,
and it may well have been the district judge's thinking.
But it turns out--based on citations provided by neither
side--that despite the ominous phrasing, Massachusetts treats any
deliberate, and not otherwise wicked, affixing of another's plates
as constituting the offense. In one remarkable case, a school-aged
youngster was convicted of attaching plates after driving a repaired
truck with an improper plate to the residence of a teacher at his
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school; this was so even though the teacher had wrongly assured him
that to do so was all right. S. Middlesex Reg'l Vocational
Technical Sch. Dist. Comm. v. Superior Court, 401 N.E.2d 167, 168-69
(Mass. App. Ct. 1980).
In another case, a used car dealer stated that he "had
been stopped and cited by police many times for driving an
unregistered and uninsured vehicle with attached plates" because he
had no access to dealer plates in demonstrating vehicles for sale.
Commonwealth v. Daley, 672 N.E.2d 101, 102-03 (Mass. 1996). In
other words, "intent to conceal" apparently means only that one knew
that the attached plate did not belong to the vehicle and not that
there was any further ulterior motive.
Like driving with a revoked or suspended license,
attaching plates thus ordinarily involves a defendant who knows what
he has done; whether it involves more premeditation and affirmative
wrongdoing remains to be considered. But, as Daley and South
Middlesex demonstrate, assuming that the typical affixing plates
violator was planning to rob a bank is unjustified. One of the
weaknesses of the guideline is that analysis is prey to whatever
scenario most vividly occurs to the guideline reader.
The 2007 guideline amendment now offers its own gloss on
"similarity," inviting attention to five variables: two are
independent of the defendant (comparative penalties, elements), one
appears to be specific to the defendant (level of punishment) and
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two (culpability, threat of recurrence) could be either. The only
one that is practically mechanical--and (as we will see) the only
one that is particularly informative on the facts of this case--is
the comparative penalties.
The Massachusetts sanction for attaching plates is only
a $100 fine and/or up to ten days' imprisonment, and the penalty
does not increase with subsequent violations. Mass. Gen. Laws ch.
90, § 23. By contrast, driving with a revoked or suspended license
is punishable by the same prison sentence but a slightly greater
fine--between $500 and $1,000 for a first offense--and its penalties
increase with subsequent convictions. Id. Several of the other
listed offenses not counted by the guideline involve penalties
considerably more substantial.3
The second criterion appears to be actual punishment, as
indicated by the Fifth Circuit case from which the guideline gloss
was drawn. See Hardeman, 933 F.2d at 282-83; U.S.S.G. app. C,
amend. 709 (Supp. 2007); cf. United States v. May, 343 F.3d 1, 9
(1st Cir. 2003) (allowing consideration of the defendant's
3
Reckless driving may be punished by a fine between $20 and
$200 and/or imprisonment for between two weeks and two years.
Mass. Gen. Laws ch. 90, § 24. An insufficient funds check may be
punished by a fine between $500 and $5000 and/or up to two years'
imprisonment. Mass. Gen. Laws ch. 151A, § 47A. Resisting arrest
may be punished by a fine of up to $500 and/or up to two and a half
years' imprisonment. Mass. Gen. Laws ch. 268, § 32B. In addition,
Massachusetts makes non-support a felony, Mass. Gen. Laws ch. 273,
§ 1, and it is punishable by a fine of up to $5000 and/or up to
five years' imprisonment, Mass. Gen. Laws ch. 273, § 15A.
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behavior). Here, the government says that the punishment Maldonado
actually received--six months' probation--was "highly unusual"
(Maldonado agrees that many cases are just dismissed) and implies
that the state court had found a greater level of culpability and
a greater probability of recidivism. But no actual jail time was
imposed; and it is explicit from the docket entry that the waiting
period before dismissal--the nature of a CWOF disposition--was to
be "unsupervised."
The third criterion, comparing elements, could favor
Maldonado--the scienter element is about the same as the no-valid-
license offense--or the government if one thinks that attaching
plates involves slightly more premeditation. The fourth and fifth--
individual culpability and risk of recidivism--could matter in other
cases depending on pertinent facts; but once the government's
inference from the unsupervised probation sentence is put to one
side, neither party has much to say about these last two criteria,
and nor do we.
The most clear-cut precedent is a thoughtful Seventh
Circuit decision supporting the government, United States v. Caputo,
978 F.2d 972, 978 (7th Cir. 1992) (false license); see also United
States v. Guajardo, 218 F. App'x 294, 297 (5th Cir. 2007)
(unpublished) (displaying a counterfeit inspection sticker "is
categorically more serious than driving without a license or with
a revoked or suspended license" and thus not "similar to" it); cf.
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United States v. Arroyos-Fernandez, 286 Fed. Appx. 881, (5th Cir.
2008)(similarly treating a false identification document).
However, Caputo and Guajardo both involved the defendant
in the fabrication of false information, either as fabricator or
procurer of false documents--an independent and aggravating step;
merely affixing someone else's license plate to one's car is not
quite the same thing as making or buying a counterfeit plate. And
driving a car without a valid license is easily viewed both as an
affirmative act and an implied misrepresentation that the driver
holds a valid license. The elusive label "fraud" seems as about as
apt, or inapt, for one as for the other.
At the same time, we cannot place much weight on United
States v. Mitchell, 941 F.2d 690 (8th Cir. 1991), which favors
Maldonado. Although the court there equated attaching plates to
"driving without a license" and giving "false information to a
police officer," id. at 691, the statement was dicta and offered
without explanation. Caputo and Mitchell may in fact reflect the
particular attaching plates scenario--out of a great many diverse
possibilities--that the judge happens to have in mind.
In the end, the guideline provision in question is mainly
aimed at screening out minor offenses and, while distinctions can
be drawn, attaching plates--as defined under Massachusetts law--does
not seem demonstrably worse than driving with a revoked license or
giving false information to the police. Nor, where fabricating of
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documentation is absent, unlike in Caputo and Guajardo, is there any
clear consensus in the circuits. The rule of lenity, although
applicable to guideline interpretation, may not strictly apply to
a law application issue;4 but its spirit may lend something to
Maldonado's position in this case.
This is a perhaps quite a close call. Certainly
distinguishing the revoked-license offense is possible: there is
perhaps more premeditation in affixing plates and the latter is
sometimes associated with other crimes, as the PSR noted. Indeed,
this court recently held that no plain error occurred where the
district court without objection assigned a criminal history point
to the same attaching plates offense, United States v. Matos, No.
09-1178, slip op. at 19 (1st Cir. July 7, 2010), but the court
reserved the merits for another day. Id.
Still, in its elements, Massachusetts' affixing plates
statute does not differentiate, as some such statutes do, cf. 75 Pa.
Cons. Stat. §§ 7111, 7122, 7124 (2010), based on whether the plates
are forged or used on a stolen vehicle or otherwise; the generic
offense in Massachusetts carries a low penalty and requires no more
4
The rule of lenity applies "when substantial ambiguity as to
the guideline's meaning persists even after a court looks to its
text, structure, context, and purposes." United States v. Damon,
595 F.3d 395, 401 (1st Cir. 2010). Whether a general rule is
ambiguous merely because its application presents close cases might
be debated. See United States v. Morton, No. 03-4408, slip op. at
3 (4th Cir. Feb. 17, 2004) (holding that lenity does not apply
because section 4A1.2(c)(1) of the guidelines is not ambiguous).
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than knowing that the plate is assigned to another vehicle; and if
Maldonado did any other wrong associated with the affixing of
plates, it is not part of the record or the government's argument.
We conclude that, on this record, the affixing plates
offense under Massachusetts law does not count toward Maldonado's
criminal history under the guidelines. Whether the defendant
qualifies for the safety valve and, if so, whether a different
sentence should be imposed are matters for the district court on
remand. The sentence is vacated and the case remanded for further
proceedings consistent with this decision.
It is so ordered.
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