Mateo v. United States

United States Court of Appeals
For the First Circuit

No. 03-2409

FELIX MATEO,
Petitioner, Appellee,

v.

UNITED STATES OF AMERICA,
Respondent, Appellant.

No. 03-2472

UNITED STATES OF AMERICA,
Appellant,

v.

FELIX MATEO, a/k/a JOHNNY, a/k/a CHARLIE, a/k/a MANUEL LLUBERES,
Defendant, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before
Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.

James M. Fox for petitioner.
Dina Michael Chaitowitz, Assistant U.S. Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
respondent.

February 18, 2005
 CAMPBELL, Senior Circuit Judge. This is an appeal by the

United States from the district court's granting of relief to Felix

Mateo1 pursuant to 28 U.S.C. § 2255. At issue is Mateo's right to

obtain a reduced federal sentence following state court orders

undermining a state conviction and sentence that had been used to

enhance his original federal sentence.

On August 25, 2000, Mateo was sentenced in the United

States District Court for the District of Massachusetts on drug-

related charges. In calculating the criminal history component of

the Sentencing Guidelines, the district court counted three

criminal history points. The multiplicity of criminal history

points resulted from evidence that Mateo had committed the federal

offenses while subject to an outstanding state warrant for

violation of a probationary sentence imposed for conviction of a

Massachusetts narcotics offense.2 Five months after the original

federal sentence, Mateo obtained an order from a state court judge

terminating the state probationary sentence nunc pro tunc to a date

1
The defendant's true name is Johnny Rodriguez, but we will
refer to him as "Mateo," the name under which this case has
proceeded in the past.
2
The sentencing court calculated the guideline sentencing
range using the Guidelines in effect at the time of sentencing --
the United States Sentencing Guidelines Manual ("USSG") issued on
November 1, 1999. See USSG § 1B1.11(a) (courts are to use "the
Guidelines Manual in effect on the date that the defendant is
sentenced"). Mateo received one criminal history point for the
prior crime pursuant to USSG § 4A1.1(c), and two additional points
pursuant to USSG §§ 4A1.1(d) and 4A1.2(m).

-2-
prior to the time he had committed the federal offenses of

conviction. Armed with the state nunc pro tunc order, Mateo then

successfully petitioned the federal district court under 28 U.S.C.

§ 2255 for a reduction in the federal sentence it had earlier

imposed. Additionally -- and before the court below had reduced

its earlier sentence -- Mateo further obtained from the state court

an order vacating the guilty plea that had been the foundation of

the state conviction and probationary sentence used to enhance his

federal sentence. Finding Mateo's original guilty plea to have

been premised on a constitutionally insufficient colloquy, the

state court vacated his guilty plea, ordered a new trial, and filed

the charges against Mateo.

The United States now appeals from the district court's

reduced sentence calculated on zero rather than three criminal

history points. The district court's principal rationale for its

reduction -- and the principal subject of the parties' arguments on

appeal -- was the state court's nunc pro tunc termination of

Mateo's state term of probation, a termination which, the district

court believed, deprived the state sentence of its ability to

enhance the federal sentence under the Sentencing Guidelines.

This is the third time the parties have appealed to this

Court in respect to the sentences in the federal drug case in

question. See United States v. Mateo, 271 F.3d 11 (1st Cir. 2001)

(Mateo I); Mateo v. United States, 310 F.3d 39 (1st Cir. 2002)

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(Mateo II). After consideration of the district court's and our

prior decisions as well as the state court decisions and other

circumstances of this case, we affirm the district court's

reduction of its original sentence. In so doing, however, we do

not follow the district court's rationale premised on the state

court's nunc pro tunc termination of the term of probation but

rather rely on the state court's vacation and filing of the state

conviction. See United States v. Johnson, 952 F.2d 565, 584 (1st

Cir. 1991) (considering applicability of Sentencing Guidelines

provisions not specifically considered by the district court); Doe

v. Anrig, 728 F.2d 30, 32 (1st Cir. 1984) (court of appeals free to

affirm based on any ground supported by the record).

I. Background

On April 11, 1995, Mateo appeared in West Roxbury

District Court, a Massachusetts state court. The court accepted

his plea of admission to sufficient facts and entered a finding of

guilty on a charge of distributing heroin.3 The state court

imposed a suspended sentence, placing Mateo on probation for two

3
Mass. R. Crim. P. 12(a)(2) provides that "[i]n a District
Court, a defendant may, after a plea of not guilty, admit to
sufficient facts to warrant a finding of guilty." Under
Massachusetts law, an admission to sufficient facts to warrant a
finding of guilty is treated as a plea of guilty. United States v.
Morillo, 178 F.3d 18, 21 (1st Cir. 1999); United States v. Hines,
802 F. Supp. 559, 563 (D. Mass. 1992); Luk v. Commonwealth, 658
N.E.2d 664, 667 n. 6 (Mass. 1995); Mass. Gen. Laws ch. 278, § 18.
For ease of reference, Mateo's plea in state court is referred to
throughout this opinion as a plea of guilty.

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years, a period that would ordinarily have ended on April 11, 1997

had Mateo complied with the terms of his probation.

According to the West Roxbury probation office, Mateo

failed after April 3, 1996 to report to probation authorities as

required by the terms of the probation. On April 9, 1997, two days

before the April 11th end of his probationary period, the probation

office sent Mateo a notice, instructing him to report for a

compliance hearing. Mateo failed to report for the hearing. On

July 14, 1997, the probation office sent Mateo another notice,

informing him that he had violated the terms of his probation and

instructing him to appear for a surrender hearing on September 9,

1997. Mateo did not appear at the surrender hearing, and the state

court thereupon, on the same date, issued a default warrant for his

arrest. The warrant remained outstanding until at least January 5,

1999 at which time Mateo was arrested on federal charges and placed

in custody.

On January 27, 2000, Mateo pled guilty in federal

district court to the various federal drug-related offenses,

including conspiracy to possess cocaine base with intent to

distribute, in violation of 21 U.S.C. § 846, and distribution of

cocaine base, in violation of 21 U.S.C. § 841(a)(1). Mateo's role

in the conspiracy commenced in March of 1998 and continued to about

January 5, 1999. The distribution offenses occurred on or about

March 27, 1998 and on or about January 5, 1999. Mateo's base

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offense level was 34. He received a three-level credit for

acceptance of responsibility. See USSG § 3E1.1. Because of the

quantity of drugs involved, Mateo was subject to a ten-year minimum

mandatory sentence. See 21 U.S.C. § 841(b)(1)(A)(iii).

On August 25, 2000, the district court sentenced Mateo to

121 months in prison. In calculating the criminal history

component of the Sentencing Guidelines, the district court added

one criminal history point for the Massachusetts drug conviction

and two additional points based on its finding that Mateo had

committed the federal drug offenses while under a criminal justice

sentence for that conviction. See USSG § 4A1.1(d). Under the

relevant guideline, the addition of two points was mandatory if the

offense was committed under "any criminal justice sentence,

including probation." Id. A defendant who commits a federal

offense "while a violation warrant from a prior [probation]

sentence is outstanding . . . shall be deemed to be under a

criminal justice sentence if that sentence is otherwise countable,

even if that sentence would have expired absent such warrant." Id.

§ 4A1.2(m); see also id. § 4A1.1(d), cmt. n.4.

The court's finding that the crimes were committed while

Mateo was under a criminal justice sentence not only moved Mateo

into a higher criminal history category but rendered him ineligible

for the "safety valve" provision, USSG § 5C1.2. Mateo had

unsuccessfully argued that he should be in a lesser criminal

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history category and eligible for the "safety valve" on the ground

that the probationary sentence stemming from his prior state court

conviction was invalid because the warrant had been illegally

issued after the termination date of the probationary period. The

district court, in its original sentencing, rejected this

reasoning, used the higher criminal history category to fix the

guideline sentencing range (121-151 months), and imposed a sentence

at the low end of the range. The district court advised Mateo that

his sentence was "all without prejudice to [him] getting [his

probation violation] warrant vacated in state court."

On September 5, 2000, Mateo filed a notice of appeal to

this Court from his foregoing federal sentence. On October 12,

2000, while his appeal here was pending, Mateo filed a motion in

state court to vacate his guilty plea in the West Roxbury District

Court, arguing, inter alia, that the plea was invalid because the

court "accepted his plea without inquiring whether the plea was

made intelligently, with full knowledge and understanding of all

the elements of the charge against him." Mateo argued that the

judge and his attorney never explained the elements of the charge.

He asserted that "[he] believed [he] was pleading to simple

possession, not possession with intent to distribute."

On December 13, 2000, counsel for Mateo wrote to a

probation officer at the West Roxbury District Court:

I recently represented [Mateo] in a drug prosecution
brought in United States District Court. He was

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 sentenced to 121 months in prison. If the defendant's
probation in the above referenced case had been
terminated prior to the date of his federal offense,
March 27, 1998, he would have received a sentence of 87
months. The judge who sentenced [Mateo] told me that if
I could obtain an order from the West Roxbury Court
indicating that probation should have terminated prior to
March 27, 1998, the judge will resentence [Mateo] to 87
months. Regardless whether the defendant serves 87 or
121 months he will be deported upon wrapping his federal
sentence.4

The following day, Mateo filed a motion in state court to terminate

his probation nunc pro tunc to April 11, 1997. The argument

section of Mateo's motion stated in its entirety:

Argument:

The defendant contends that his probation terminated on
April 11, 1997. The probation office did not initiate
process to surrender the defendant until July 14, 1997.
The defendant had completed probation and the warrant was
issued in error. Commonwealth v. Mitchell, 46 Mass. App.
Ct. 921, 922 (1999).

In granting the motion, the state judge marked on the face of

Mateo's motion papers: "After hearing, the motion is allowed.

[Defendant] is found in violation of probation. Probation is

terminated nunc pro tunc to April 11, 1997."

4
This letter does not appear to have been called to the
attention of the federal district court during the hearing on
Mateo's § 2255 petition. The government has tendered on appeal a
certified copy taken from the records in the state-court case. We
need not decide if this letter may or should now be considered by
us on appeal. See infra. Compare E.I. Du Pont de Nemours & Co. v.
Cullen, 791 F.2d 5, 7 (1st Cir. 1986) (court of appeals took
judicial notice of complaint filed in state court action), with
Eagle-Picher Indus., Inc. v. Liberty Mut. Ins. Co., 682 F.2d 12,
22, n.8 (1st Cir. 1982) (court of appeals "may not ordinarily
consider factual material not presented to the court below").

-8-
 On appeal in this Court (Mateo I), Mateo argued that the

state court's nunc pro tunc order meant that he was not on

probation when he committed the offenses of conviction, and

therefore, he should be resentenced. This Court rejected his

argument for two reasons. First, the Court was procedurally barred

from addressing the nunc pro tunc order because, as the order was

issued after the district court imposed its sentence, Mateo

"introduced [the matter] for the first time in the court of

appeals." Mateo I, 271 F.3d at 15. Second, "even were [the Court]

to consider the nunc pro tunc order, [Mateo] would not be

advantaged," because a defendant's criminal history category "is to

be calculated at the time of sentencing, and nothing in the

sentencing guidelines suggests that it should be modified, after

sentence has been pronounced, because of a subsequent action taken

by a state court." Id. (citation omitted).

Mateo then filed a timely petition under 28 U.S.C. §

2255, raising the same argument denied on direct appeal. The

district court denied the petition on the ground that this Court

had rejected his argument in Mateo I. Subsequently, Mateo sought

a certificate of appealability, which the district court denied.

Mateo then asked this Court for a certificate of

appealability, which our Court granted on November 7, 2002. Mateo

II, 310 F.3d at 42. This Court explained that it had rejected

Mateo's direct appeal because it was based on material that had not

-9-
been presented to the district court. Id. at 40. We also

minimized our comment in Mateo I about the irrelevance of the nunc

pro tunc order:

[T]he main holding in Mateo I does not apply because the
state court order now is part of the record. As for the
further comment quoted above--that Mateo would not be
advantaged even had we considered the nunc pro tunc
order--we think this meant only that the district court
had not erred as the record before it stood; the court in
Mateo I should not be taken to have decided in a brief
comment a very difficult set of substantive issues
concerning the consequence of a post-sentencing vacation
of a state sentence that affected the federal sentence.

Id. We vacated the dismissal of Mateo's § 2255 petition and

remanded the case to the district court. Id. at 42-43.

Shortly thereafter, on January 2, 2003, the state court

granted "for the reasons stated" Mateo's motion to vacate his

guilty plea in the prior state case, effectively vacating Mateo's

conviction and expressly ordering a new trial. (As already

indicated, Mateo's motion to vacate his guilty plea was based on

the alleged insufficiency of the in-court colloquy prior to

acceptance of the plea.) On April 24, 2003, the court ordered the

state charges to be filed without change of plea.

Back in federal court, on remand, the district court held

a hearing on the § 2255 motion on March 19, 2003. During the

hearing and in their briefs, neither party mentioned the state

court's allowance of Mateo's motion to vacate plea.5 On August 12,

5
Mateo was represented in the federal proceeding by an
attorney different from his state court attorney, and the United

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2003, the district court allowed Mateo's § 2255 petition, basing

its analysis upon the state court's order terminating Mateo's

probation nunc pro tunc to April 11, 1997. See Mateo v. United

States, 276 F. Supp. 2d 186 (D. Mass. 2003) (Mateo III). The

district court reasoned that a federal sentence enhanced under the

Guidelines based on a defendant's state record can be collaterally

challenged pursuant to 28 U.S.C. § 2255 when a state court

subsequently modifies or invalidates the aspect of the state record

that resulted in an enhanced federal sentence. Id. at 190-91. The

court explained that, absent exceptional circumstances, a federal

court should not look beyond the state-court record, and,

therefore, it would not inquire into the correctness of the state

order terminating Mateo's probation nunc pro tunc to a time prior

to the federal offenses. Id. at 193-94.

On September 30, 2003, the district court held a new

sentencing hearing. By the time of this hearing, the state court's

vacation of Mateo's guilty plea seems to have become generally

known. The presentence report noted that Mateo was being

States, of course, was represented by the United States Attorney
rather than by the state prosecutor. This may account for the
apparent absence of knowledge by § 2255 counsel of the January 2
vacation of the state conviction. At the end of the hearing on the
§ 2255 motion, the attorney for the United States stated, "The
problem was it was not vacating a conviction." On April 11, 2003,
the government filed its memorandum in opposition to the § 2255
petition. The government attached state court records to its
opposition. Those records appear not to have been up to date as
they did not include any notation of the filing or allowance of the
motion to vacate plea.

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resentenced "as a result of his prior [state] conviction being

vacated." The district court calculated Mateo's criminal history

points (without the prior state conviction or probationary

sentence) to be zero, making him eligible for the safety valve

reduction. See USSG § 5C1.2(a)(1). The court found Mateo's

adjusted offense level (with the safety valve reduction) to be 29,

his criminal history category to be I, and his guideline sentencing

range to be 87 to 108 months. The court sentenced Mateo to 96

months in prison, reducing his original sentence by 25 months. The

United States appealed.

II. Analysis

The federal Guidelines state that a district court should

"[a]dd 2 points if the defendant committed the instant offense

while under any criminal justice sentence, including probation,

parole, supervised release, imprisonment, work release, or escape

status." USSG § 4A1.1(d). And the Guidelines go on to state that

"a defendant who commits the instant offense while a violation

warrant from a prior sentence is outstanding (e.g., a probation,

parole, or supervised release violation warrant) shall be deemed to

be under a criminal justice sentence if that sentence is otherwise

countable, even if that sentence would have expired absent such

warrant." Id. § 4A1.2(m). Here, the federal offenses were all

committed between the time a state default warrant for the prior

violation of probation had been issued and was outstanding, and the

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time Mateo was returned to custody on the federal charges on

January 5, 1999.

Whether Mateo was "under a criminal justice sentence" for

purposes of the Sentencing Guidelines is ultimately a question of

federal law. See United States v. Carrasco-Mateo, 389 F.3d 239,

246 (1st Cir. 2004); United States v. Martinez-Cortez, 354 F.3d

830, 832 (8th Cir. 2004); Mateo I, 271 F.3d at 15; United States v.

Camilo, 71 F.3d 984, 987 (1st Cir. 1995). In Mateo I, this court

stated that "in determining whether to add criminal history points

under USSG § 4A1.1(d), a sentencing court ordinarily is not

required to look beyond the face of the state-court record, but,

rather, may give weight to an outstanding warrant without inquiring

into the validity of that warrant." 271 F.3d at 16. The

Guidelines are clear that the sentencing court should add two

criminal history points if the defendant has an outstanding

violation warrant at the time he commits a federal offense, even if

the underlying sentence would have expired but for the violation.

See USSG §§ 4A1.1(d), 4A1.2(m); see also Camilo, 71 F.3d at 986;

USSG § 4A1.1(d), cmt. n.4. The Guidelines do not indicate that the

violation warrant must affirmatively be proven valid. See, e.g.,

United States v. Davis, 313 F.3d 1300, 1306 (11th Cir. 2002), cert.

denied, 540 U.S. 827 (2003) ("[I]t is not necessary to prove the

validity of the underlying warrant before applying § 4A1.1(d).");

United States v. Anderson, 184 F.3d 479, 481 (5th Cir. 1999) ("In

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determining whether an outstanding violation warrant triggers a

two-point increase, the Guidelines do not require us to assess the

state authorities' diligence in executing a violation warrant.");

United States v. Elmore, 108 F.3d 23, 27 (3d Cir. 1997) ("The plain

language of the Guidelines indicates that two points are to be

added whenever an outstanding warrant is in existence, regardless

of whether the warrant is stale pursuant to state law at the time

of sentencing, and irrespective of whether state authorities have

been lax in attempting to execute the warrant.").

At the time of the original sentencing, therefore, the

district court could scarcely have calculated Mateo's criminal

history differently than it did. Mateo's probationary sentence for

the Massachusetts drug conviction was unquestioned and a state

probation violation warrant had been outstanding when Mateo

committed the federal offenses. The district court was not

required, nor ordinarily permitted, to look beyond the face of the

state-court record nor to inquire as to the validity of the state

warrant. Mateo I, 271 F.3d at 16. The district court concluded

quite properly, therefore, at the initial federal sentencing, that

Mateo was "under a criminal justice sentence" when he committed the

federal offenses of conviction. See USSG § 4A1.2(m).

The current appeal, however, is from the district court's

subsequent granting of § 2255 relief vacating that earlier sentence

and reducing to zero Mateo's criminal history points. This was

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done largely in response to the subsequent state court order

expressly terminating Mateo's probation nunc pro tunc to April 11,

1997, a time prior to his federal offenses of conviction. Also, by

the time of the habeas action in the district court, Mateo's guilty

plea in the relevant state case had been vacated and the state case

had itself been placed on file. We turn now to these subsequent

state actions.

A. The Relevant State Orders

In reviewing the district court's elimination of the

three points based upon the state drug conviction (one point) and

the fact that Mateo had committed the federal offenses while under

a criminal justice sentence (two points), we need first to sort out

the relevance to the federal sentence of the two different state

actions: (1) the state court order allowing Mateo's motion to

terminate nunc pro tunc his probation to April 11, 1997; and (2)

the state court order allowing Mateo's separate motion to vacate

his guilty plea to the state charge and for a new trial, followed

by the filing of his case. The latter state court action was noted

in the most recent presentence report, which treated Mateo as being

now without any prior state conviction. This fact was the basis of

the district court's elimination of the one point added because of

the prior state sentence. See USSG § 4A1.1(c). The district court

eliminated the other two points -- awarded for commission of the

instant federal offense while under a criminal justice sentence,

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id. § 4A1.1(d) -- because of the nunc pro tunc termination of

probation to April 11, 1997.

Whether or not eliminating the two criminal history

points solely because of the state court's nunc pro tunc order was

a correct interpretation of the Guidelines, eliminating those

points was certainly justified by the state court's vacation of the

prior state conviction. The Guidelines make it clear that

"[s]entences for expunged convictions," USSG § 4A1.2(j), and

"[s]entences resulting from convictions that (A) have been reversed

or vacated because of errors of law . . . or (B) have been ruled

constitutionally invalid in a prior case are not to be counted [for

enhancement purposes]." Id. § 4A1.2, cmt. n.6. Accordingly, while

we affirm the district court's resentencing of Mateo so as to

eliminate all three criminal history points, we do so because of

the vacation of the state conviction rather than because of the

state court's allowance of the motion to terminate probation nunc

pro tunc. See Johnson, 952 F.2d at 584; Anrig, 728 F.2d at 32.

Vacation of the state conviction was an event which, under the

Guidelines, called for the reduction, and we think the district

court therefore acted properly in imposing the sentence it did.

B. The Effect of the State Court's Vacation of Mateo's Criminal
Conviction

As stated above, we focus on the vacation of Mateo's

state criminal conviction as supportive of the district court's

allowance of § 2255 relief. The state court allowed Mateo's motion

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to vacate his guilty plea on January 2, 2003. It did so for

reasons Mateo had stated in support of his motion, to wit, inter

alia, that the court had "accepted his plea without inquiring

whether the plea was made intelligently, with full knowledge and

understanding of all the elements of the charge against him."

In a not dissimilar situation, where a state court

subsequently vacated convictions used to enhance a federal sentence

because of the lack of information necessary for defendant's pleas

to be considered voluntary, we affirmed a district court judgment

granting § 2255 relief. See United States v. Pettiford, 101 F.3d

199 (1st Cir. 1996) (Aldrich, J.).6 While that case involved the

use of prior convictions to enhance a sentence under the Armed

Career Criminal Act, the underlying principle was the same as

6
Pettiford supported its conclusion with the Supreme Court's
dicta in United States v. Custis, 511 U.S. 485 (1994). The Custis
Court held that a defendant in a federal sentencing proceeding has
no right to make a collateral attack on a prior state conviction
used to enhance his sentence under the Armed Career Criminal Act,
unless the prior state conviction was obtained in violation of his
right to counsel. Id. at 496-97. But the Custis Court stated in
dicta that a defendant who is successful in state court in
attacking state sentences "may then apply for reopening of any
federal sentence enhanced by the state sentences." Id. at 497.
See also Daniels v. United States, 532 U.S. 374, 382 (2001)
(following and amplifying Custis). The result in Pettiford is
similar to that reached by many of the other circuit courts. See,
e.g., United States v. Doe, 239 F.3d 473, 475 (2d Cir. 2001);
United States v. Walker, 198 F.3d 811, 813-14 (11th Cir. 1999);
Turner v. United States, 183 F.3d 474, 477 (6th Cir. 1999); United
States v. LaValle, 175 F.3d 1106, 1108 (9th Cir. 1999); United
States v. Bacon, 94 F.3d 158, 161 n.3 (4th Cir. 1996); United
States v. Cox, 83 F.3d 336, 339 (10th Cir. 1996); United States v.
Nichols, 30 F.3d 35, 36 (5th Cir. 1994).

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here.7 As noted above, the Guidelines themselves make specific

provision for not counting prior sentences resulting from expunged

convictions or from convictions reversed or vacated for errors of

law or because constitutionally invalid. See USSG §§ 4A1.2(j),

4A1.2, cmt. n.6. As discussed in Pettiford, the ground for

vacating Mateo's guilty plea and granting him a new trial, thus

vacating his conviction, appears to have been a constitutional one.

See Pettiford, 101 F.3d at 202 (characterizing the provision of

"the information necessary for [a defendant's] pleas to be

considered voluntary" as "a constitutional requirement") (citing

Boykin v. Alabama, 395 U.S. 238, 242-43 (1969); United States v.

Houlihan, 92 F.3d 1271, 1279 (1st Cir. 1996)). It was also, of

course, an error of law. Following Pettiford, therefore, relief

under § 2255 was warranted.8

7
This circuit has extended the main holding in Custis to the
Guidelines. See Brackett v. United States, 270 F.3d 60, 65 (1st
Cir. 2001) ("Naturally, the Custis ruling applies whether the
sentence enhancement was imposed because of ACCA or because of the
Sentencing Guidelines."). And other courts have applied the Custis
dicta to the Guidelines. See, e.g., Doe, 239 F.3d at 475; LaValle,
175 F.3d at 1108; Candelaria v. United States, 247 F. Supp. 2d 125,
133-34 (D.R.I. 2003); United States v. Cavallero, No. 95-59-P-H,
1999 WL 33117096, at *6 (D. Me. Nov. 17, 1999).
8
Other courts have held that a state conviction that has been
vacated because of the constitutional invalidity of a plea should
not be counted for purposes of the Guidelines. See, e.g., United
States v. Mobley, No. 03-6345, 2004 WL 914458, at *2 (4th Cir. Apr.
30, 2004) (vacating denial of § 2255 petition and remanding for
resentencing where state conviction that was set aside after
federal sentencing based upon constitutional invalidity of guilty
plea was "expunged" and should not have been included in
calculating criminal history points); LaValle, 175 F.3d at 1108

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 As in Pettiford, it is immaterial that the relief sought,

based on the subsequent state court orders, came after Mateo's

original and, when pronounced, perfectly correct, federal sentence.

See Pettiford, 101 F.3d at 201 (rejecting the argument that "only

past offenses vacated prior to the federal proceeding may be

discounted by the court, in effect etching the defendant's criminal

history record in stone as of that moment").

It is true that, unlike in Pettiford, two of the three

additional points here rested not simply on the fact of the prior

conviction itself but, more specifically, on Mateo's having

committed federal offenses "while under any criminal justice

sentence." See USSG § 4A1.1(d). That requirement was met here

because of explicit further Guideline language making commission of

an offense while a violation warrant is outstanding tantamount to

commission of the offense while under a criminal justice sentence.

See id. § 4A1.2(m). To be sure, a policy argument can be made that

later vacation of the underlying conviction is irrelevant, as the

(holding that court should have granted § 2255 petition where state
conviction used to enhance federal sentence was vacated based on
invalidity of plea); United States v. Lopez, No. Crim. 03-302, 2004
WL 2414843, at *2 (D. Minn. Oct. 18, 2004) (finding it
impermissible to count state conviction for federal sentencing
purposes where guilty plea was withdrawn based on invalidity of
plea, finding of guilt was withdrawn, and charge was dismissed).
See also Walker, 198 F.3d at 813-14 (affirming allowance of § 2255
motion after defendant successfully attacked prior state conviction
used to enhance federal sentence); Candelaria, 247 F. Supp. 2d at
134 (granting § 2255 motion after state conviction, which served as
a predicate offense for USSG § 4B1.1 purposes, had been vacated).

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federal offenses were indeed committed while a warrant was

outstanding. But any such theory runs counter to limiting language

in the Guidelines. The Guidelines deem a defendant to be under a

criminal justice sentence if he commits a federal offense "while a

violation warrant from a prior sentence is outstanding," but only

"if that sentence is otherwise countable." Id. (emphasis added).

Here, no aspect of Mateo's probation sentence can any

longer be considered to have been "otherwise countable," since

sentences for expunged convictions, or sentences resulting from

convictions vacated because of errors of law or ruled

constitutionally invalid, are expressly not to be counted for

enhancement purposes. Id. §§ 4A1.2(j), 4A1.2, cmt. n.6. See

United States v. Dubovsky, 279 F.3d 5, 8 (1st Cir. 2002)

(expungement determined "by considering whether the conviction was

set aside because of innocence or errors of law"). In contrast,

the Guidelines provide that sentences resulting from convictions

that have been set aside "for reasons unrelated to innocence or

errors of law" should be counted, noting that:

A number of jurisdictions have various procedures
pursuant to which previous conviction may be set aside or
the defendant may be pardoned for reasons unrelated to
innocence or errors of law, e.g., in order to restore
civil rights or to remove the stigma associated with a
criminal conviction. Sentences resulting from such
convictions are to be counted.

Id. § 4A1.2, cmt. n.10.

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 The warrant here rested on Mateo's violation of his

sentence of probation. Once the conviction was vacated for

constitutional or legal error, the sentence of probation ceased to

be countable as a criminal justice sentence. It follows from the

Guidelines' express language that the violation warrant itself

could no longer be deemed to have been under a criminal justice

sentence.9

The government argues that, even if there was an error

under the Guidelines, that error is not cognizable under 28 U.S.C.

§ 2255. Section 2255, which governs federal habeas, provides as

follows:

A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be
released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess
of the maximum authorized by law, or is otherwise subject
to collateral attack, may move the court which imposed

9
It might be argued that the filing of the state charges
render the court's vacation of the conviction non-final. The
filing of a case in Massachusetts state court "is not equivalent to
a final judgment, or to a nolle prosequi or discontinuance . . .
but is a mere suspending of active proceedings in the case . . .
and leaves it within the power of the court at any time, upon the
motion of either party, to bring the case forward and pass any
lawful order or judgment therein." Commonwealth v. Dowdican's
Bail, 115 Mass. 133, 136 (1874) (filing of case after verdict of
guilty). Nevertheless, what is dispositive for purpose of the
Guidelines is not the possibility of a new trial on Mateo's state
charges at some point in the future but rather the vacation of the
state conviction used to enhance Mateo's federal sentence. Because
that state conviction has been vacated, there is no basis to
presume that Mateo was "under a criminal justice sentence" as
required for enhancement under USSG § 4A1.1(d).

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 the sentence to vacate, set aside or correct the
sentence.

28 U.S.C. § 2255. To be cognizable under § 2255, a non-

constitutional claim of a legal error must amount to a "fundamental

defect which inherently results in a complete miscarriage of

justice." Hill v. United States, 368 U.S. 424, 428 (1962). See

also Knight v. United States, 37 F.3d 769, 773-74 (1st Cir. 1994)

(leaving open the question whether "an error in the application of

the sentencing guidelines could never constitute a 'complete

miscarriage of justice'").

Here, the government contends that Mateo's non-

constitutional claim, namely, a misapplication of the Guidelines,

does not result in a "miscarriage of justice" because any error

resulted from Mateo's own failure to comply with the terms of his

state probationary sentence. See Jamison v. United States, 244

F.3d 44, 48 (1st Cir. 2001) (counting prior conviction was "not

even remotely an injustice" where prior conviction was dismissed

only because, "instead of returning for sentencing [after pleading

guilty], as he had been ordered to do, [the defendant] fled and

thereby initiated a series of delays in his sentencing," which

eventually resulted in the dismissal of the indictment).

But because we find that the error was based, not on the

state court’s nunc pro tunc termination of Mateo's probation but,

rather, on the vacation of the state conviction, we examine the

latter state ruling to determine whether the error is cognizable

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under § 2255. Unlike the state court nunc pro tunc order which had

no stated basis, the state order vacating Mateo's guilty plea and

ordering a new trial rested upon the violation of Mateo's right to

have entered a voluntary and knowing plea. We have described such

a violation as one of constitutional dimension and, in any event,

as a claim cognizable under § 2255 on the basis of which a district

court may properly reopen a federal sentence. See Pettiford, 101

F.3d at 201 ("[W]hether on constitutional or grounds otherwise

subject to collateral attack, we concur with the district court's

recognition of federal habeas jurisdiction.").

C. The State Court Nunc Pro Tunc Order

As the district court's allowance of the § 2255 motion

was consistent with the state's vacation of the state conviction,

we find no need to examine the effect of the separate state court

order terminating Mateo's probation nunc pro tunc to April 11,

1997. The district court thought it improper to inquire into the

legal validity under state law of the nunc pro tunc order. See

Mateo III, 276 F. Supp. 2d at 194 (explaining that "absent

exceptional circumstances (like a state-court legerdemain with no

colorable legal or factual rationale) not present here, this Court

will not second-guess a state court's judgment on state criminal

law"). However, for purposes of Guidelines analysis, a federal

court may and sometimes must, in appropriate circumstances,

identify the reason for the state action in order to determine

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whether a prior sentence should be counted. See Carrasco-Mateo,

389 F.3d at 246 (stating that "courts have delved into state law to

resolve questions arising in the section 4A1.1(d) context"). As

discussed above, the Guidelines direct courts not to count

"[s]entences for expunged convictions," USSG § 4A1.2(j), and

"[s]entences resulting from convictions that (A) have been reversed

or vacated because of errors of law . . . or (B) have been ruled

constitutionally invalid in a prior case," id. § 4A1.2, cmt. n.6.

In contrast, the Guidelines provide that convictions that have been

set aside "for reasons unrelated to innocence or errors of law"

should be counted. Id. § 4A1.2, cmt. n.10.

Here, the reason behind the state court order terminating

Mateo's probation nunc pro tunc to April 11, 1997 is unstated and

unclear. While Mateo argued in his motion to terminate probation

that, at the time the probation officer initiated process to

surrender him, he had completed probation and the warrant was

issued in error, the state court made no finding to this effect

and, in particular, made no reference to the status of the warrant

under its ruling. Compare Commonwealth v. Sawicki, 339 N.E.2d 740

(Mass. 1975); Commonwealth v. Mitchell, 708 N.E.2d 961 (Mass. App.

Ct. 1999). A divided panel of the Eighth Circuit has held that the

defendant's successful motion in state court to reduce a probation

term from 365 to 364 days "for the express purpose of avoiding a

criminal history point in his federal drug sentencing" was not a

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valid basis for not counting his original sentences for criminal

history purposes. United States v. Martinez-Cortez, 354 F.3d 830,

831-32 (8th Cir. 2004). In the present case, Mateo's counsel

appears to have written a letter to the state probation officer,

indicating that Mateo would be resentenced to a more lenient

federal sentence if his probation was terminated to a time prior to

the federal offenses of conviction. The relevance of this letter

to the effect of the nunc pro tunc order, and the sufficiency of

the provisions of the nunc pro tunc order themselves as a basis for

reduction of the federal Guidelines sentence, give rise to delicate

issues we need not address here given the fact that the state

court's vacation order amply justifies the district court's

judgment. Moreover, it may well be inappropriate for us to take

into account the letter to the state probation officer, as the

letter was not presented to the district judge. See supra note 4.

Hence we do not determine the correctness of the district court's

allowance of the § 2255 motion premised on the state court's nunc

pro tunc termination of the term of probation.

III. Conclusion

We hold that the state court's vacation and filing of the

prior state conviction on the ground stated rendered Mateo's

federal sentence subject to correction under § 2255 insofar as it

was enhanced by the state conviction.

Affirmed.

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