UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-2357
No. 93-2383
UNITED STATES OF AMERICA,
Appellee,
v.
PASQUALE PERROTTA,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, Senior U.S. District Judge]
Before
Torruella, Cyr and Boudin,
Circuit Judges.
Charles K. Stephenson with whom Richard L. Goldman was on brief
for appellant.
Kevin O'Regan, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for the United
States.
December 27, 1994
BOUDIN, Circuit Judge. Pasquale Perrotta was indicted
for participating in a large-scale narcotics conspiracy, 21
U.S.C. 841, 846, and for possession with intent to
distribute cocaine on a specific date. 21 U.S.C. 841. In
1990, Perrotta was tried, with 12 co-defendants, and was
convicted on both the conspiracy and possession counts. We
resolved the appeals of a number of Perrotta's co-defendants
in United States v. Innamorati, 996 F.2d 456 (1st Cir.),
cert. denied, 114 S. Ct. 409, 114 S. Ct. 459 (1993), 114 S.
Ct. 1072, 114 S. Ct. 1073 (1994).
Perrotta's sentencing occurred on December 7, 1993. The
delay is presumably related to the government's willingness,
at sentencing, to move for a downward departure under
U.S.S.G. 5K1.1. The court computed the guideline range as
providing for 97 to 121 months of imprisonment but, approving
a downward departure, the court sentenced Perrotta to 60
months in prison, with three years' supervised release to
follow. Perrotta has now appealed.
Perrotta's first point concerns the unusual action of
the government in making a post-trial submission to the
district court, neither the contents nor the existence of the
submission being known to the defendants at the time. See
Innamorati, 996 F.2d at 487. The government, in addition to
providing reasons for its secrecy, asked the district court
to determine whether the information fell under the Brady
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doctrine and had to be disclosed to the defense. Id. In the
course of the Innamorati appeals, this court ordered that the
existence of the government's submission and the relief
sought be disclosed to the defense while the contents
remained impounded. Id.
This court eventually sustained the convictions in
Innamorati. We agreed that secret submissions are dangerous
and are to be discouraged; but we found, after a review of
the actual submission, that there had been an adequate basis
for filing the submission in the district court under seal
and without notice to defense counsel; that there was
adequate cause to continue the impoundment of the submission
(even though the existence of the submission might now be
made known); and that the contents of the submission either
did not constitute Brady material or could not conceivably
have affected the outcome of the case. 996 F.2d at 487-88.
Perrotta does not seek to relitigate the legal rulings
just described but makes two narrower claims concerning the
disclosed material. First, he suggests that since more time
has now elapsed since the original submission, it must now be
safe to have the contents of the submission disclosed, so
that Perrotta's defense counsel can make his own judgment and
argue more effectively that the material could constitute a
prejudicial withholding of Brady information. Alternatively,
Perrotta speculates as to what the withheld submission might
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contain and suggests that the material has a special bearing
as to him that may not have been true of his co-defendants.
The contents of the government's original submission
have again been reviewed by this court. We remain of the
view that the government's reasons for not disclosing the
contents of the material remain valid, despite the passage of
additional time. And having considered Perrotta's suggestion
that the material may be specially pertinent to him, the
government's submission has been re-examined in that light,
but with no difference in result: there has been no
withholding from Perrotta of Brady material that could have
altered the result in his case.
Perrotta's second claim of error relates to his
sentencing. The amount of drugs attributed to Perrotta was
stipulated but, in calculating this guideline range, a
dispute arose concerning his criminal history based on the
following events. Perrotta had been convicted and sentenced
in 1976 for a gambling offense, but the conviction had been
overturned on appeal. See United States v. Perrotta, 553
F.2d 247 (1st Cir. 1977). Perrotta then pled guilty to the
offense on remand and was resentenced on April 24, 1978. The
question is whether the 1978 sentence affects Perrotta's
criminal history score.
The Sentencing Guidelines provide that one point should
be added to a defendant's criminal history score for each
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"prior sentence" where, as was true of Perrotta's gambling
conviction, the sentence was less than 60 days' imprisonment.
U.S.S.G. 4A1.1(c). The guidelines provide a kind of
statute of limitations for prior sentences used in computing
criminal history. For prior sentences of 13 months or less,
points are to be added only for "any . . . [such] prior
sentence that was imposed within ten years of the defendant's
commencement of the instant offense . . . ." Id.
4A1.2(e)(2). Perrotta and the government agree that
Perrotta's original 1976 sentence occurred more than ten
years before the "instant" drug conspiracy began, but that
the 1978 sentence occurred within ten years of the beginning
of the conspiracy.
The 1978 sentence is, in the literal words of the
guideline, a "prior sentence that was imposed within ten
years" of the instant offense. U.S.S.G. 4A1.2(e)(2). The
guidelines reinforce this literal reading by treating the
1976 sentence as a nullity; a sentence resulting from a
conviction that has been "reversed or vacated" is not to be
counted. U.S.S.G. 4A1.2, comment. (n. 6). There is
consistent case law to this effect, e.g., United States v.
Schweihs, 971 F.2d 1302, 1318 (7th Cir. 1992). Thus on the
face of the guidelines, the district court was correct in
including the 1978 sentence as part of Perrotta's criminal
history.
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There is no reason to doubt that the Sentencing
Commission meant what it said. Although the gambling offense
itself may have occurred more than ten years before the drug
conspiracy began, the Commission could reasonably conclude
that criminal history points should be added in the case of a
defendant who, within ten years of sentencing, determined to
commit yet another crime. To the extent that the sentencing
is treated as a warning that should give the defendant
special pause for the next decade, the fact that it is a
resentencing after a remand makes no difference.
Finally, we reject Perrotta's suggestion that adding a
point because of the 1978 sentence is an unconstitutional
burden on his right to appeal his original conviction for
gambling. Defendants are protected against unreasonable
burdens on their right to pursue judicial remedies but not
against every incidental and remote disadvantage that may
attach. See North Carolina v. Pearce, 395 U.S. 711 (1969);
Beauchamp v. Murphy, 37 F.3d 700 (1st Cir. 1994). There is
virtually no chance that a defendant will fail to appeal
because of the fear that a decade later he may be subject to
an additional criminal history point if he chooses to commit
another crime.
Perrotta's argument regarding the secret submission is a
serious one, and we have treated the first claim of error
briefly only because the underlying secrecy issue was
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extensively considered in Innamorati. On the sentencing
issue, Perrotta's claim is also not frivolous but we think
that the merits are clear enough that we need not consider
whether, in view of the district court's downward departure,
Perrotta's precise criminal history category had any likely
effect on the sentence.
Affirmed.
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