United States v. Lindia

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit

No. 95-2200

UNITED STATES,

Appellee,

v.

FRANK J. LINDIA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Boudin, Circuit Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Edward S. MacColl with whom Thompson, McNaboe, Ashley & Bull was

on brief for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with

whom Jay P. McCloskey, United States Attorney, and Jonathan R.

Chapman, Assistant United States Attorney, were on brief for appellee.

April 18, 1996

STAHL, Circuit Judge. Pursuant to a plea agreement
STAHL, Circuit Judge.

with the government, defendant-appellant Frank J. Lindia

pleaded guilty to a one-count indictment charging that, from

December 1994 to January 31, 1995, he and codefendants John

C. Mosby and Augustine T. Aguirre conspired to possess with

intent to distribute in excess of fifty kilograms of

marijuana, in violation of 21 U.S.C. 846, 841(a)(1) and

(b)(1)(C). On appeal, Lindia claims that the district court

erred by: including a negotiated but unconsummated sale of

150 pounds of marijuana in the sentence calculation;

sentencing him as a career offender; and refusing to depart

downward from the sentence on his claim that the career-

offender criminal history category significantly

overrepresented his past criminal conduct.

I.
I.

Pertinent Background and Prior Proceedings
Pertinent Background and Prior Proceedings

A. Facts

We accept the facts as set forth in the uncontested

portions of the Presentence Investigation Report ("PSR") and

the sentencing hearing transcript, see United States v.

Muniz, 49 F.3d 36, 37 (1st Cir. 1995), reciting additional

facts below as necessary.

In late 1994, federal and Maine law enforcement

authorities, with the help of a cooperating individual (CI),

began investigating Lindia's activities. Soon thereafter,

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the CI (who had been the "buyer" in monitored marijuana

transactions) introduced to Lindia an "associate," undercover

DEA Special Agent Mike Cunniff, who would handle further

transactions. During the ensuing negotiations, Agent Cunniff

was introduced to Lindia's associates, Aguirre and Mosby.

On January 20, 1995, Agent Cunniff met Mosby at

Mosby's home in Jamestown, Rhode Island, where Mosby

delivered to Cunniff forty-eight pounds of marijuana. On

January 31, 1995, Lindia and Aguirre met Agent Cunniff in

Portland, Maine, to receive payment for the marijuana. The

meeting took place in a hotel room that government agents had

previously set up with videotape equipment. During the

meeting, Agent Cunniff delivered $62,400 in cash and

commented on the failure of Aguirre and Lindia to accept the

payment earlier, as they had promised. Concerned about his

customer's unhappiness, Lindia apologized for the delay and

indicated that more marijuana was available. The three men

then planned for an additional thirty pounds of marijuana to

be delivered the next day.

Also during the videotaped meeting, Lindia told

Cunniff, "We have something else . . . that we would like to

send up to you." Both Lindia and Aguirre then spoke of a

subsequent shipment of marijuana and indicated that they

could probably send Cunniff "about" 150 or 200 pounds,

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depending upon the capacity of the vehicle in which it would

travel.1 Lindia stated that the lot could be delivered in a

little over one week's time. After counting out the cash

payment for the forty-eight pound lot and discussing details

of the next day's thirty-pound delivery, Lindia and Aguirre

left the hotel room and were promptly arrested. Lindia

eventually pleaded guilty and cooperated with the

authorities.

B. Sentencing

1. The transcript of this portion of the conversation
between Lindia, Aguirre and Agent Cunniff reads, in part:

Lindia: And let me ask you another question. We
have something else . . . that we would
like to send up to you. Now this is
going to be
Aguirre: What, the [shipment] that's coming
Lindia: The one that's coming with . . . Chewy
Aguirre: Are you talking about this one that's
already
Lindia Not this one, the one that's behind it
from Chewy
Aguirre: Well, we could probably get about
Lindia: We could probably get about
Aguirre: One and one half, or two even
Cunniff: I can handle three, five, or thousand
Lindia: This is contingent upon the vehicle that
we have at this point. . . . So two would
probably be the limit.

After discussing delivery matters about this shipment, the
discussion continued:

Cunniff: How much are we talking about?
Lindia: Probably one and half to two
. . . .
Aguirre: Whatever we can get [in the vehicle].

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The district court sentenced Lindia as a career

offender under 21 U.S.C. 994(h), including as a predicate

offense Lindia's Rhode Island conviction on a nolo contendere

plea for possession with intent to deliver marijuana. Under

the Career Offender guideline, U.S.S.G. 4B1.1, the court

was required to determine the offense statutory maximum in

order to ascertain the applicable offense level. Because the

court included the negotiated 150-pound lot in the amount of

drugs attributable to Lindia, it found the offense statutory

maximum to be twenty years' imprisonment under 21 U.S.C.

841(b)(1)(C).

Pursuant to the Career Offender guideline, the

statutory maximum of twenty years yielded an offense level of

thirty-two with a criminal history category of VI. Lindia

asked the court to depart downward on the basis that the

criminal history category overrepresented his criminal

history; but the court refused, specifically ruling that it

did not have the authority to do so. The court did grant a

three-level downward adjustment in the offense level for

acceptance of responsibility, resulting in a total offense

level of twenty-nine and a guideline imprisonment range of

151 to 188 months. On the government's motion under U.S.S.G.

5K1.1, the court departed downward from the guideline range

for Lindia's substantial assistance and imposed a sentence of

108 months' incarceration.

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II.
II.

Discussion
Discussion

We review the sentencing court's findings of fact

for "clear error" and generally defer to its credibility

determinations. United States v. Muniz, 49 F.3d 36, 41 (1st

Cir. 1995); United States v. Whiting, 28 F.3d 1296, 1304 (1st

Cir.), cert. denied, 115 S. Ct. 378, 498, 499, 532 (1994).

We review de novo the court's interpretation of the

guidelines and application of law. Muniz, 49 F.3d at 41.

A. Drug Quantity Calculation

The extent of the penalty for a controlled-

substance conviction is determined in large part by the

amount of drugs properly attributable to the defendant.

United States v. Campbell, 61 F.3d 976, 982 (1st Cir. 1995),

petition for cert. filed, (Mar. 8, 1996) (No. 95-8348). On

appeal, Lindia challenges the district court's inclusion of

the negotiated but unconsummated 150-pound lot in the

calculation of his sentence. Without this quantity, he would

have received the benefit of 21 U.S.C. 841(b)(1)(D), which

provides for a maximum imprisonment term of only five years

"[i]n the case of less than 50 kilograms of marijuana."2

Use of this penalty provision would have yielded, under the

2. 1 kilogram is equivalent to approximately 2.2 pounds.

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Career Offender guideline, a pre-adjustment offense level of

seventeen instead of thirty-two. See U.S.S.G. 4B1.1.3

The PSR stated that Lindia was responsible for

103.5 kilograms of marijuana, representing a combination of

the forty-eight pound, thirty-pound, and 150-pound lots.4

3. This challenge is somewhat perplexing in light of the
indictment and plea agreement in the record before us.
Lindia informs this court that he pleaded guilty to the
conspiracy to possess with intent to distribute marijuana but
"did not plead guilty to quantity." The indictment to which
he pleaded guilty, however, states that the conspiracy was
for "in excess of 50 kilograms." Further, both the
indictment and the plea agreement cite 21 U.S.C.
841(b)(1)(C) which sets forth a maximum sentence of 20
years as the applicable penalty provision. Indeed, the plea
agreement explicitly states that "[t]he parties agree and
understand that the maximum statutory penalty which may be
imposed upon conviction is imprisonment of not more than
twenty years."
Nonetheless, Lindia insists that at the change of
plea hearing, the court and the parties "understood" that the
issue of drug quantity would be left entirely open for
sentencing purposes. Incredibly, Lindia does not provide
this court with a transcript of the change of plea hearing
for our consideration of his claimed material change in the
indictment and plea agreement. And nothing in the record
before us hints of a superseding indictment or information
eliminating the quantity specification. Because the record
adequately supports the court's finding that, counting the
negotiated 150-pound lot, the marijuana quantity attributable
to Lindia was in excess of 50 kilograms, we do not decide
whether his plea precluded his challenge to the drug quantity
finding.

4. The government points out that, with a total quantity of
103.5 kilograms of marijuana, the five-year mandatory minimum
and 40-year maximum in 21 U.S.C. 841(b)(1)(B)(vii) might
have applied rather than the 20-year maximum in
841(b)(1)(C). The application of the lower maximum
sentence is apparently based on the understanding of the
parties and court, as evidenced in the indictment, plea
agreement, and PSR, that Lindia would be responsible for a
marijuana quantity that would trigger no more than the
penalties set for in 841(b)(1)(C).

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Lindia objected to this conclusion, asserting, inter alia,

that the 150-pound lot "never existed" and was not the object

of any conspiracy, and that his statements about it

constituted mere "puffing" in an attempt to gain Agent

Cunniff's business confidence. At the sentencing hearing,

Lindia testified that the 150-pound lot had never been

previously discussed or planned and that no steps had been

taken to obtain it. Lindia repeated that the discussion was

meant to impress Agent Cunniff, and testified that only after

obtaining payment for the forty-eight and thirty-pound lots

did he intend to actually seek the additional 150 pounds of

marijuana.

The district court found, under a preponderance-of-

the-evidence standard, that the proposed delivery of the 150

pound lot had not been discussed or planned before the

videotaped meeting. The court also found, however, that

based on Lindia's and Aguirre's statements, the 150 pounds of

marijuana added to, and were part of, the charged conspiracy.

The court found that Lindia and Aguirre intended to produce

that marijuana and were reasonably capable of doing so and

thus, the 150 pounds were includable in the offense conduct

for the purposes of the statutory maximum and the Sentencing

Guidelines.

Application note 12 of U.S.S.G. 2D1.1 provides:

In an offense involving negotiation to
traffic in a controlled substance, the

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weight under negotiation in an
uncompleted distribution shall be used to
calculate the applicable amount.
However, where the court finds that the
defendant did not intend to produce and
was not reasonably capable of producing
the negotiated amount, the court shall
exclude from the guideline calculation
the amount that it finds the defendant
did not intend to produce and was not
reasonable capable of producing.

We have interpreted this note as requiring the sentencing

court to include the negotiated amount in the drug quantity

calculation unless it finds both that the defendant did not

have the intent to produce the amount, and that he lacked the

capacity to deliver it. United States v. Wihbey, 75 F.3d

761, 777 (1st Cir. 1996); Muniz, 49 F.3d at 39. Application

note 12 applies for the purposes of both the Sentencing

Guidelines and the statutory penalties under 21 U.S.C.

841(b). Muniz, 49 F.3d at 39-40 (indicating that five-year

difference in statutory mandatory minimum was dependent upon

drug quantity calculated under application note 12); United

States v. Pion, 25 F.3d 18, 25 n.12 (1st Cir.) (noting that

drug quantity finding under note 12 provides threshold

calculus for mandatory minimums), cert. denied, 115 S. Ct.

326 (1994).

Lindia contends that due process requires the

government to prove drug quantity beyond a reasonable doubt.

Drug quantity, however, is not an element of the offense of

conviction, 21 U.S.C. 846 and 841(a)(1), but is typically

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relevant only for determining the penalty. See 21 U.S.C.

841(b); United States v. Campbell, 61 F.3d 976, 979-80 (1st

Cir. 1995) (citing United States v. Lam Kwong-Wah, 966 F.2d

682, 685 (D.C. Cir.), cert. denied, 506 U.S. 901 (1992));

United States v. Patterson, 38 F.3d 139, 143-44 (4th Cir.

1994), cert. denied, 115 S. Ct. 1968 (1995). As such, drug

quantity for purposes of 841(b) is determined by the

sentencing court under a preponderance-of-the-evidence

standard.5 See United States v. Barnes, 890 F.2d 545, 551

n.6 (1st Cir. 1989) (noting that court, not jury, determines

drug quantity under 841(b)), cert. denied, 494 U.S. 1019

(1990); United States v. Lombard, 72 F.3d 170, 175-76 (1st

Cir. 1995) (explaining that "once convicted, a defendant has

no right under the Due Process Clause to have his sentencing

determination be confined to facts proved beyond a reasonable

doubt," rather, applicable standard is preponderance of the

evidence); Whiting, 28 F.3d at 1304 and n.5 (reaffirming

5. We note that, during the sentencing proceeding, Lindia
argued that the government must prove drug quantity beyond a
reasonable doubt, and that he had the right to a "jury trial
on the question of quantity." The court told Lindia, "either
you get a jury trial on the offense or not," remarked that
this request was essentially an attempt to withdraw the
guilty plea, and inquired if he sought to withdraw his plea.
After consulting with his counsel, Lindia stood by his plea.

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preponderant evidence standard); see also McMillan v.

Pennsylvania, 477 U.S. 79, 91-93 (1986).6

Here, to assist in its determination of whether the

conspiracy included the 150-pound lot, the district court had

6. Lindia cites McMillan v. Pennsylvania, 477 U.S. 79

(1986), in support of his argument that due process requires
proof of drug quantity beyond a reasonable doubt. McMillan,

however, expressed a due process concern where a state treats
an element of a criminal offense as a sentencing factor, thus
affording it less procedural safeguards. 477 U.S. at 84-88.
Here, the quantity of drugs in this federal offense is not

one of the elements of the offense, see supra, but a settled

sentencing factor.
Moreover, this is not a case in which the drug
quantity finding is "a tail which wags the dog of the
substantive offense," McMillan, 477 U.S. at 88, thereby

possibly triggering a higher burden of proof on the
government. See United States v. Townley, 929 F.2d 365, 369

(8th Cir. 1991) (suggesting but not deciding that due process
requires more than preponderant standard where inclusion of
uncharged drug amounts produced 18-level increase in base
offense level and seven-fold increase in sentencing range);
United States v. Kikumura, 918 F.2d 1084, 1102 (3d Cir. 1990)

(holding that clear-and-convincing evidence standard applies
to justify a twelve-fold, 330-month departure from guideline
range median); cf. United States v. Lombard, 72 F.3d 170, 176

(1st Cir. 1995) (holding that sentencing court may depart
downward where uncharged, enhancing conduct of acquitted
murder charge increased sentence from 262-327 months' to
mandatory life term).
Without expressing any opinion as to the holdings
of Townley and Kikumura, we note that, unlike those cases

(and Lombard, as well), this case does not involve a

sentencing enhancement or departure based on uncharged

conduct. Here, Lindia pleaded guilty to every element of the
offense charging a marijuana conspiracy between December 1994
and January 31, 1995; and the sentence squarely punishes that
offense of conviction. See United States v. Harrison-

Philpot, 978 F.2d 1520, 1524 (9th Cir. 1992) (holding

inapplicable tail-wagging-dog concerns where disputed drug-
quantity pertained only to sentence for convicted conduct),
cert. denied, 508 U.S. 929 (1993). In short, this is simply

not a case in which due process required anything more at
sentencing.

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the benefit of the videotape of the hotel meeting and

Lindia's own testimony at the sentencing hearing. The

transcript from the hotel meeting clearly reveals Lindia's

(and Aguirre's) stated desire and agreement to provide

Cunniff with 150 to 200 pounds of marijuana. The discussion

included details such as the identification of the shipment's

source, the capacity of the vehicle to transport the

marijuana, and the number of days for delivery. Thus, there

was sufficient, reliable evidence from which the court could

find, by a preponderance of the evidence, that the conspiracy

included the 150-pound lot.

To invoke the exception of application note 12, the

court needed to be persuaded that Lindia did not have the

intent and ability to produce the 150-pound lot. Wihbey, 75

F.3d at 777. The court was free to reject, as it did,

Lindia's claim that the discussion of the 150 pounds was mere

"puffing" to impress the buyer into future negotiations. See

Whiting, 28 F.3d at 1305 (refusing to disturb sentencing

court's rejection of "puffing" claim); see also United States

v. DeMasi, 40 F.3d 1306, 1322 n.18 (1st Cir. 1994) (noting

that sentencing court's choice between supportable plausible

inferences cannot amount to clear error), cert. denied, 115

S. Ct. 947 (1995). Lindia did not prove to the court that he

lacked the intent and ability to produce the negotiated

amount; rather, based on the evidence presented, the court

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affirmatively found that he had both. We discern no clear

error in the court's finding that the 150 pounds of marijuana

were part of the conspiracy and, as such, were includable

under U.S.S.G. 2D1.1 to determine the offense statutory

maximum and Guideline sentencing range.7

B. Career Offender Status

7. Lindia cites Neal v. United States, 116 S. Ct. 763

(1996), in support of his contention that application note 12
"is inconsistent with established law." In Neal, the court

held that stare decisis required it to adhere to a prior

statutory interpretation pertaining to the sentencing
calculation of a certain drug, in the face of a newly
conflicting methodology set forth in the Guidelines. 116 S.
Ct. at 768-69. Here, Lindia cites no controlling sentencing
precedent with which application note 12 actually conflicts.
Rather, Lindia cites cases affirming the general principle
that the object of a conspiracy is an element of the offense
and must be proven beyond a reasonable doubt. See United

States v. Bush, 70 F.3d 557, 561 (10th Cir. 1995) (holding

that in a multiple-object conspiracy conviction, where it is
impossible to tell which controlled substance was the object
of conviction, defendant must be sentenced based on objective
yielding lowest offense level), cert. denied, 116 S. Ct. 795

(1996). Lindia contends that because specific intent to
effectuate the substantive offense must be proven for a
conspiracy conviction, application note 12 conflicts with
"long-established law for identifying the object of a
conspiracy" because it permits inclusion of a drug quantity
even if the defendant did not have the intent to produce that
quantity.
Here, unlike Bush, the indictment specifies only

one controlled-substance object of the conspiracy: possession
with intent to distribute marijuana. Lindia's guilty plea
waived the government's burden to prove that object. Had the
case gone to trial, the government would not have had to
prove any specific amount of drugs for a conviction.
Campbell, 61 F.3d at 979. Thus, application note 12 is

simply part of the Sentencing Commission's permissible
methodology for employing the penalty provisions pertaining
to quantity set forth in 841(b); it does not remove from
the government's burden an element of the conspiracy offense.

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The district court sentenced Lindia as a career

offender under 21 U.S.C. 994(h) due to two previous drug

distribution offenses and the instant offense. See U.S.S.G.

4B1.1. Lindia challenges this aspect of his sentence,

arguing first, that conspiracy to commit a controlled

substance offense should not trigger career offender status,

and second, that the court should not have counted as a

predicate offense a Rhode Island charge to which Lindia

pleaded nolo contendere.

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1. Conspiracy As Predicate Offense

In 1994, this court joined a number of our sister

circuits in holding that, in U.S.S.G. 4B1.2, comment.

(n.1), the Commission properly designated conspiracy to

commit a "crime of violence or a controlled substance

offense" as a triggering or predicate offense for career

offender purposes, even though conspiracy convictions are not

listed in the body of the pertinent guidelines or in 28

U.S.C. 994(h). United States v. Piper, 35 F.3d 611, 618-

619 (1st Cir. 1994) (citing cases), cert. denied, 115 S. Ct.

1118 (1995). On appeal, Lindia invites us to reconsider

Piper and join those circuits holding that conspiracies to

commit the crimes defined in 994(h) do not fall within its

purview. See e.g., United States v. Mendoza-Figueroa, 28

F.3d 766 (8th Cir. 1994), cert. denied, 116 S. Ct. 939

(1996). We decline the invitation and adhere to our

controlling precedent, thus affirming the use of the instant

conspiracy conviction to trigger the career offender

provisions.

2. The Rhode Island Nolo Contendere Plea

In 1986, Lindia pleaded nolo contendere to a Rhode

Island charge of possession with intent to deliver marijuana

("the 1986 charge"). On this plea, the state court adjudged

Lindia "guilty as charged and convicted" and gave him a

deferred sentence. Lindia argues that the 1986 charge is not

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a "conviction" under Rhode Island law and therefore cannot

constitute a predicate offense for purposes of career

offender status.

We have previously addressed the issue of whether

or not a nolo contendere plea and subsequent disposition in

Rhode Island constitutes a "conviction" for federal

sentencing purposes. See United States v. Patrone, 948 F.2d

813, 816-17 (1st Cir. 1991), cert. denied, 504 U.S. 978

(1992). Patrone involved sentencing under the armed-career-

criminal statute, 18 U.S.C. 924(e), which specifically

provides that state law determines whether or not a state

disposition constitutes a "conviction." Id. at 816; see 18

U.S.C. 921(a)(20). By contrast, 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. See United States v. Pierce,

60 F.3d 886, 892 (1st Cir. 1995) (analyzing Guidelines

provisions in concluding that state disposition on nolo

contendere plea constituted "conviction"), petition for cert.

filed, (Oct. 19, 1995) (No. 95-6474).

After carefully analyzing the Guideline language

and commentary, we held in Pierce that the guilt-establishing

event, such as a guilty plea, trial, or plea of nolo

contendere, "determines whether and when there has been a

countable `conviction'" for purposes of the Career Offender

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guideline. 60 F.3d at 892. We concluded that a Florida

offense, to which the defendant pleaded nolo contendere and

that resulted in a "withheld adjudication," constituted a

countable "conviction" under the Career Offender guideline.

Id. Similarly, Lindia's nolo contendere plea, subsequent

adjudication, and deferred sentence also constitute a

"conviction" for career offender purposes. See also United

States v. Cuevas, 75 F.3d 778, 780-83 (1st Cir. 1996)

(holding, under federal standards, that Rhode Island

disposition on nolo contendere plea is a "conviction" for

immigration law purposes).

Moreover, there is little doubt that the 1986

charge would constitute a conviction under Rhode Island law.

In Patrone, we explained that under R.I. Gen. Laws 12-18-

3(a), a nolo contendere plea will not constitute a

"conviction for any purpose" if the court places the

defendant on probation and the defendant completes probation

without violating its terms. 948 F.2d at 816, n.1. Section

12-18-3(b) further provides, however, that subdivision (a)

"shall not apply to any person who is sentenced to serve a

term in the adult correctional institution or who is given a

suspended or deferred sentence in addition to probation." As

explained in Patrone, we interpret this provision to mean

that a nolo contendere plea followed by a deferred sentence

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(or other sentence described in 12-18-3(b)) constitutes a

"conviction" under Rhode Island law. See id.

Lindia contends that our analysis in Patrone is

inapplicable, reading much into 12-18-3(b)'s language: "or

deferred sentence in addition to probation." (emphasis

added). Lindia claims that he was not placed on "probation"

for the 1986 charge, rather, he "entered probationary status

based solely on an agreement with the Rhode Island Attorney

General." The record before this court is less than clear on

this issue. It is apparent, however, that although Rhode

Island law provides for a special circumstance in which a

nolo contendere plea and successful completion of probation

will not constitute a conviction, that circumstance will not

apply where the defendant is also given a sentence of

imprisonment, or a suspended or deferred sentence. See R.I.

Gen. Laws 12-18-3. Thus, even assuming that Lindia was not

placed on probation, the controlling fact is that he was

given a deferred sentence, thus rendering the benefits of

12-18-3(a) inapplicable. Lindia cites to no other

applicable Rhode Island law in which a nolo contendere plea

will not constitute a conviction.8

8. R.I. Gen. Laws 12-19-19 provides, inter alia, that if

the court defers sentencing on a plea of guilty or nolo

contendere, it may actually impose a sentence only within a

certain time period unless the defendant is otherwise
sentenced to prison during that period, in which case the
time for imposing sentence is extended. This section says
nothing about whether or not the plea, followed by the

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Under both federal and state law standards, the

district court properly counted Lindia's 1986 charge as a

conviction for purposes of the career offender adjudication.

C. Authority to Depart Downward Based on Overrepresentation

in Career-Offender Criminal History Category

Lindia contends that the criminal history category

of VI, calculated pursuant to his career offender status,

significantly overrepresents his criminal history. The

district court ruled that nothing in the career-offender

statute, 28 U.S.C. 994(h), or in the Guidelines permitted a

downward departure on this basis.9 The First Circuit has

not yet decided the permissibility of such a departure in a

career offender case, see United States v. Morrison, 46 F.3d

127, 129 (1st Cir. 1995), although many of our sister

circuits have answered this question in the affirmative, see

e.g., United States v. Spencer, 25 F.3d 1105 (D.C. Cir.

1994); United States v. Rogers, 972 F.2d 489 (2d Cir. 1992);

United States v. Bowser, 941 F.2d 1019 (10th Cir. 1991);

United States v. Lawrence, 916 F.2d 553, 554 (9th Cir. 1990).

Pursuant to the Sentencing Reform Act of 1984,

commencing at 18 U.S.C. 3551, 28 U.S.C. 991-998 (as

deferred sentence, constitutes a "conviction." Based on the
structure of 12-18-3, however, it is apparent that Rhode
Island treats nolo contendere pleas as convictions unless the

defendant meets the provisions of 12-18-3.

9. The court did not indicate in any way whether or not it
would depart if it had the authority to do so.

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amended), the United States Sentencing Commission promulgates

Sentencing Guidelines that establish presumptive sentencing

ranges for categories of defendants and offenses. Williams

v. United States, 503 U.S. 193, 195-96 (1992). Under 28

U.S.C. 994(h),

The Commission shall assure that the
guidelines specify a sentence to a term
of imprisonment at or near the maximum
term authorized for categories of
defendants in which the defendant is
eighteen years old or older and [has been
convicted of a violent crime or felony
drug offense and has a least two such
prior convictions].

This statute is meant to ensure that the Commission's

Guidelines provide that certain felony-recidivists receive

maximum authorized sentences. See United States v. Labonte,

70 F.3d 1396, 1404 (1st Cir. 1995). The Career Offender

guideline, U.S.S.G. 4B1.1, is the Commission's

implementation of 994(h). See U.S.S.G. 4B1.1, comment.

(backg'd); Labonte, 70 F.3d at 1400-1401. The guideline

establishes the career-offender presumptive sentencing range

by setting forth enhanced total offense levels -- by

reference to offense statutory maximums10 -- and provides

that "[a] career offender's criminal history category in

10. The First Circuit has upheld the Commission's
interpretation that "maximum term" in 994(h) is the
applicable unenhanced statutory maximum. See generally

LaBonte, 70 F.3d 1396.

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every case shall be Category VI," the highest category level.

U.S.S.G. 4B1.1.

The Sentencing Reform Act permits a sentencing

court to depart from a Guidelines' presumptive sentencing

range "only when it finds that `there exists an aggravating

or mitigating circumstance of a kind, or to a degree, not

adequately taken into consideration by the Sentencing

Commission in formulating the guidelines.'" Williams, 503

U.S. at 198 (quoting 18 U.S.C. 3553(b)); see also 28 U.S.C.

991(b)(1)(B) (providing that the Commission's purposes

include "maintaining sufficient flexibility to permit

individualized sentences when warranted by mitigating or

aggravating factors not taken into account in the

establishment of general sentencing guidelines").

Accordingly, the Guidelines provide that "a case that falls

outside the linguistically applicable guideline's `heartland'

is a candidate for departure." United States v. Rivera, 994

F.2d 942, 947 (1st Cir. 1993); see U.S.S.G. Ch.I, Pt.A,

intro. comment. (4)(b). Such cases are deemed "unusual,"

and, by definition, the Commission (with some exceptions) has

not "adequately" considered them within the meaning of

3553(b). Id. As Justice (then Chief Judge) Breyer

thoroughly explained in Rivera, the exceptions to this

principle are those several factors the Commission has

explicitly rejected as permissible grounds for departure.

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Id. at 948-949 (also explaining that encouraged departures

are likely "reasonable" while discouraged departures require

"unusual or special" circumstances); see also Williams, 503

U.S. at 200 (concluding that departure based on expressly

rejected factorconstitutesincorrect applicationofGuidelines).

The Application Instructions for the Guidelines,

set forth in U.S.S.G. 1B1.1, explain that after a

sentencing court determines the offense level, the

defendant's criminal history category, and the applicable

guideline range, it then refers to certain provisions for

"Specific Offender Characteristics and Departures" and "any

other policy statement or commentary in the guidelines that

might warrant consideration in imposing sentence." A

guidelines policy statement, U.S.S.G. 4A1.3, specifically

addresses the adequacy of a criminal-history category's

reflection of a defendant's past criminal conduct. See also,

U.S.S.G. Ch.5, Pt.H, intro. comment. and 5H1.8 (stating

that criminal history is relevant in determining if sentence

should be outside applicable guideline range). Section 4A1.3

explicitly recognizes that a defendant's criminal history

category may "significantly over-represent[] the seriousness

of a defendant's criminal history or the likelihood that the

defendant will commit further crimes." U.S.S.G. 4A1.3,

(policy statement). In such cases, the sentencing court may

consider a downward departure. Id. We agree with our sister

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circuits (that have considered the issue) that a sentencing

court may invoke 4A1.3 to depart downward from the career-

offender category if it concludes that the category

inaccurately reflects the defendant's actual criminal

history, within the meaning of 18 U.S.C. 3553(b). See

e.g., United States v. Spencer, 25 F.3d 1105, 1113 (D.C. Cir.

1994); United States v. Rogers, 972 F.2d 489, 494 (2d Cir.

1992); United States v. Bowser, 941 F.2d 1019, 1024 (10th

Cir. 1991); United States v. Lawrence, 916 F.2d 553, 554-55

(9th Cir. 1990).

The district court interpreted Congress's mandate

in 994(h) and the Commission's implementation, U.S.S.G.

4B1.1, as precluding departure on the basis of

overrepresentation in all cases in which the defendant is

assigned a criminal history category of VI under the Career

Offender guideline. Section 994(h), however, is directed to

the Commission's duty to formulate guidelines pertaining to

categories of defendants, not to sentencing courts faced with

individual defendants. As explained above, Congress and the

Commission have rejected rigid sentencing schemes by

empowering the sentencing court to consider factors that

might comprise an "unusual" case. The Commission has not

designated as a "forbidden departure" the overrepresentation

of a criminal history category in career offender cases, see

Rivera, 994 F.2d at 948-49, and "there is nothing unique to

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career offender status which would strip a sentencing court

of its `sensible flexibility' in considering departures."

Rogers, 972 F.2d at 493.

A district court that considers numerous

Guidelines cases has a "special competence" to determine the

"ordinariness" or "unusualness" of a particular case.

Rivera, 994 F.2d at 951. When faced with a departure motion

in a career-offender case, as in other cases, the court's

experience and unique perspective will allow it to decide if

the case before it falls outside the guideline's "heartland,"

warranting departure. See Rivera, 994 F.2d at 952 (holding

that appellate court reviews "unusualness" determination with

"respect" for sentencing court's "superior `feel' for the

case" (citation omitted)). Because the district court in

this case did not consider whether or not the career-offender

criminal history category overrepresented Lindia's

circumstances, so as to make his case "unusual," we remand

for its determination of this issue.11

III.
III.

Conclusion
Conclusion

For the foregoing reasons, we affirm in part,

vacate in part and remand for proceedings consistent with

11. The government, both in its brief and at oral argument,
conceded that the court had the authority to depart on this
basis and stated that, should we agree, remand for
resentencing would be appropriate.

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this opinion.

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