USCA1 Opinion

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

_________________
_________________________________
on brief for appellant.
Margaret D. McGaughey, Assistant
_______________________
whom

Jay P. McCloskey,
__________________

United

United

States

States Attorney,

Attorney,

and Jonathan
_________

Chapman, Assistant United States Attorney, were on brief for appell

_______

____________________

April 18, 1996

____________________

STAHL, Circuit Judge.

STAHL, Circuit Judge.
_____________

with

the

government,

pleaded guilty to a

December 1994

C. Mosby and

intent

to

Pursuant to a plea agreement

defendant-appellant

to January 31, 1995, he

and codefendants John

Augustine T. Aguirre conspired

in

excess

fifty

U.S.C.

846,

in violation

(b)(1)(C).

On appeal, Lindia claims that

including a

pounds

of

sentencing him as

downward

offender

of 21

to possess with

of

marijuana,

150

J. Lindia

one-count indictment charging that, from

distribute

erred by:

Frank

kilograms

841(a)(1) and

the district court

negotiated but unconsummated

marijuana

in

the

sentence

criminal

sentence on

history

his claim

category

sale of

calculation;

a career offender; and refusing

from the

of

that the

to depart

career-

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

the Presentence Investigation Report ("PSR") and

sentencing

Muniz, 49
_____

hearing

F.3d 36, 37

transcript, see
___

(1st Cir. 1995),

United States
______________

v.

reciting additional

facts below as necessary.

In late

1994,

authorities, with the help

began

federal and

Maine law

enforcement

of a cooperating individual (CI),

investigating Lindia's

activities.

Soon thereafter,

-22

the

CI

(who had

been

the "buyer"

in

monitored marijuana

transactions) introduced to Lindia an "associate," undercover

DEA

Special Agent

transactions.

Mike

Cunniff, who

would handle

further

During the ensuing negotiations, Agent Cunniff

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

On

Mosby's

home

delivered

January

January 20,

in

Jamestown,

to Cunniff

31, 1995,

1995, Agent

Cunniff met

Rhode

Island,

forty-eight pounds

Lindia and

Portland, Maine, to receive

Mosby at

where

of marijuana.

Aguirre met Agent

Mosby

On

Cunniff in

payment for the marijuana.

The

meeting took place in a hotel room that government agents had

previously

meeting,

Agent

commented

payment

set

up with

Cunniff

videotape

equipment.

delivered

$62,400

in

During

the

cash

and

on the failure of Aguirre and Lindia to accept the

earlier, as they had promised.

customer's

unhappiness, Lindia apologized

indicated that more marijuana was

then planned

Concerned about his

for the delay and

available.

The three

men

for an additional thirty pounds of marijuana to

be delivered the next day.

Also during

the

videotaped meeting,

Cunniff, "We have something else .

send up to

you."

Both

subsequent shipment

could

probably

send

of

marijuana and

-33

told

. . that we would like to

Lindia and Aguirre

Cunniff

Lindia

then spoke of

indicated

"about" 150

or

that

200

they

pounds,

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.

payment for the forty-eight

of the

left

After counting

eventually

room

pleaded

authorities.

B. Sentencing
______________

____________________

and were

guilty

cash

pound lot and discussing details

next day's thirty-pound delivery,

the hotel

out the

promptly

and

Lindia and Aguirre

arrested.

cooperated

with

Lindia

the

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.

have something

else . . .

like

to send

up to

We

that we would

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].

-44

The

offender under

district

21 U.S.C.

court sentenced

Lindia as

994(h), including

a career

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,

was required

to determine

U.S.S.G.

4B1.1, the

the offense statutory

order to ascertain the applicable offense level.

court included the negotiated 150-pound lot in

drugs attributable to Lindia,

maximum

to be

twenty

court

maximum in

Because the

the amount of

it found the offense statutory

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

asked

the court

criminal

history

history; but

did

a criminal history

to depart

category

category of VI.

downward on

the basis

overrepresented

the court refused, specifically

not have the authority to do so.

his

Lindia

that the

criminal

ruling that it

The court did grant a

three-level

acceptance of

level of

downward

adjustment

in the

responsibility, resulting

twenty-nine and

151 to 188 months.

offense

in a

level for

total offense

a guideline imprisonment

range of

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.

-55

II.
II.
___

Discussion
Discussion
__________

We review

for

"clear error"

determinations.

the sentencing court's

and

generally defer

findings of fact

to its

credibility

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

_____________
_____

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

_____________
_______

Cir.),

We

cert. denied, 115 S.

_____ ______

review

de
__

novo
____

the

Ct. 378, 498,

court's

guidelines and application of law.

499, 532 (1994).

interpretation

of

Muniz, 49 F.3d at 41.

_____

the

A. Drug Quantity Calculation

_____________________________

The

substance

amount

extent

conviction

of

drugs

of

the

penalty

is determined

in

properly attributable

for

controlled-

large

to

part by

the

the

defendant.

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

______________
________

petition for cert. filed,

________ ___ _____ _____

appeal,

the

(Mar. 8, 1996) (No. 95-8348).

Lindia challenges the

negotiated

but

have received the benefit

provides for a

"[i]n

the case

district court's inclusion of

unconsummated

calculation of his sentence.

150-pound

lot

in

the

Without this quantity, he would

of 21 U.S.C.

841(b)(1)(D), which

maximum imprisonment term of only

of less

On

than 50

kilograms of

five years

marijuana."2

Use of

this penalty provision would have

yielded, under the

____________________

2.

1 kilogram is equivalent to approximately 2.2 pounds.

-66

Career Offender guideline, a pre-adjustment

offense level of

seventeen instead of thirty-two.

The

PSR stated

103.5 kilograms of

the forty-eight

See U.S.S.G.
___

that

Lindia was

responsible

marijuana, representing a

pound,

4B1.1.3

for

combination of

thirty-pound, and

150-pound

lots.4

somewhat perplexing

in light

of the

____________________

3.

This

challenge is

indictment
Lindia

and

plea

informs

agreement

this court

in the

that

record

he pleaded

before

guilty

us.

to the

conspiracy to possess with intent to distribute marijuana but

"did

not plead guilty to quantity."

he pleaded
for

"in

indictment

guilty, however,
excess

of

and

the

841(b)(1)(C)

50

The indictment to which

states that the

kilograms."
plea

which sets

Further,

agreement

forth

explicitly states

understand that
imposed

the maximum

upon conviction

is

cite

a maximum

years as the applicable penalty provision.

agreement

conspiracy was

that "[t]he

both
21

U.S.C.

sentence of
Indeed,

20

the plea

parties agree

statutory penalty which

imprisonment of

the

not more

and

may be
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

sentencing
this

purposes.

would

for our consideration

before us

eliminating the

And

of plea hearing
in the

nothing in the

quantity specification.
the court's finding

for

provide

of his claimed material change

a superseding indictment

adequately supports

open

does not

of the change

plea agreement.

hints of

left entirely

Incredibly, Lindia

court with a transcript

indictment and

be

record

or information

Because

the record

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
have

maximum in

applied

rather

841(b)(1)(C).
sentence
parties

The

than

and

based

court, as

penalties set for in

the

that

would

of

in

the

maximum
lower

in

maximum

understanding of

the

the indictment,

plea

would be responsible
trigger no

841(b)(1)(C).

-77

20-year

on the

evidenced

PSR, that Lindia

quantity

841(b)(1)(B)(vii) might

application

is apparently

agreement, and
marijuana

21 U.S.C.

more

than

for a
the

Lindia objected to

this conclusion,

asserting, inter
_____

alia,
____

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

of

any

conspiracy,

constituted

mere

Cunniff's business

Lindia

testified

and

"puffing"

that

in

confidence.

that

previously discussed or

the

his

statements

an attempt

to

about

gain

At the sentencing

150-pound lot

planned and that

had

it

Agent

hearing,

never

been

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

did he intend to

for the forty-eight

and thirty-pound lots

actually seek the additional 150

pounds of

marijuana.

The district court found, under a preponderance-of-

the-evidence standard, that the

pound lot

videotaped

had

not

meeting.

been

The

proposed delivery of the 150

discussed or

court also

planned

before

found, however,

the

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

that

Lindia and Aguirre intended

marijuana and were

reasonably capable of

to produce

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.

In

an

traffic

offense involving
in

a controlled

-88

2D1.1 provides:

negotiation to
substance, the

weight

under

negotiation

in

an

uncompleted distribution shall be used to

calculate

the

applicable

However, where the

defendant did

the

negotiated

exclude
the

from

the

produce and

capable of

producing

amount, the

court shall

the guideline

calculation

amount that

did not

court finds that

not intend to

was not reasonably

amount.

intend

it finds

the defendant

to produce

and was

not

reasonable capable of producing.

We

have interpreted

this note

court to include the negotiated

calculation unless it finds

as requiring

the sentencing

amount in the drug

quantity

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.
_____________

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

_____

note

12

applies for

the

purposes of

both

Wihbey, 75
______

39.

F.3d

Application

the Sentencing

Guidelines

and

841(b).

the

statutory

penalties

under

U.S.C.

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

_____

difference in statutory mandatory minimum was

drug quantity

calculated under application

States v. Pion,
______
____

drug

21

quantity

calculus for

25 F.3d 18, 25 n.12

finding

under

note 12); United

______

(1st Cir.) (noting that

note

mandatory minimums),

dependent upon

12

provides

threshold

cert. denied, 115

_____ ______

S. Ct.

326 (1994).

Lindia

contends

government to prove drug

that

process

requires

the

quantity beyond a reasonable doubt.

Drug quantity, however, is

conviction, 21 U.S.C.

due

846

not an element of the

offense of

and 841(a)(1), but is typically

-99

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

682,

685 (D.C.

United States v. Lam Kwong-Wah, 966 F.2d

_____________
______________

Cir.), cert. denied,

_____ ______

506 U.S.

901 (1992));

United States
_____________

v. Patterson,
_________

1994), cert. denied, 115

_____ ______

quantity

for

purposes

38 F.3d

S. Ct. 1968 (1995).

of

under

841(b) is

sentencing

court

standard.5

See United States

___ _____________

under

841(b)),

no

such, drug

determined

v. Barnes, 890
______

by

the

F.2d 545, 551

court, not jury, determines

cert. denied, 494

_____ ______

(1990); United States v. Lombard,

______________
_______

Cir. 1995) (explaining that

As

(4th Cir.

preponderance-of-the-evidence

n.6 (1st Cir. 1989) (noting that

drug quantity

139, 143-44

72 F.3d 170,

U.S. 1019

175-76 (1st

"once convicted, a defendant has

right under the Due Process Clause to have his sentencing

determination be confined to facts proved beyond a reasonable

doubt,"

rather, applicable standard

evidence);

Whiting, 28

F.3d

at 1304

is preponderance of the

and n.5

(reaffirming

_______

____________________

5.

We note

that, during

the sentencing

proceeding, Lindia

argued that the government must prove drug quantity beyond

reasonable doubt, and that

he had the right to a "jury trial

on the question of quantity."

you

get a jury

this

request

guilty

The court told Lindia, "either

trial on the offense

was essentially

an

or not," remarked that

attempt

to withdraw

the

plea, and inquired if he sought to withdraw his plea.

After consulting with his counsel, Lindia stood by his plea.

-1010

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,
____________

(1986), in support of his argument that due

proof

477

U.S.

79

process requires

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.

Here,

the quantity of drugs

________

one of the elements of the

477

U.S. at 84-88.

in this federal

offense is not

offense, see supra, but a settled

___ _____

sentencing factor.
Moreover,
quantity

finding

substantive
possibly

this
is

"a tail

offense,"

triggering

government.

is not

a case

which

McMillan,
________
a

in which

wags

477 U.S.

higher

burden

the
at

of

the drug

dog of
88,

proof

the

thereby
on

the

See United States v. Townley, 929 F.2d 365, 369

___ _____________
_______

(8th Cir. 1991) (suggesting but not deciding that due process
requires

more than preponderant

uncharged

drug amounts

offense level

standard where inclusion of

produced 18-level

and seven-fold increase

increase in

base

in sentencing range);

United States v. Kikumura, 918 F.2d 1084, 1102 (3d Cir. 1990)
_____________
________
(holding that clear-and-convincing evidence
to justify a twelve-fold, 330-month

standard applies

departure from guideline

range median); cf. United States v. Lombard, 72 F.3d 170, 176

___ _____________
_______
(1st

Cir. 1995)

downward
murder

where

(holding that
uncharged,

charge increased

sentencing court

enhancing

sentence

conduct

from 262-327

may depart
of acquitted
months'

to

mandatory life term).

Without expressing any
of Townley and
_______

Kikumura, we
________

opinion as to

note that,

the holdings

unlike those

cases

(and

Lombard,
_______

sentencing
conduct.

as

well),

enhancement

or

this

case

departure

does

not

based

on

involve

uncharged
_________

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

Philpot,
_______

conviction.

978

F.2d

1520,

See United States

___ ______________
1524

(9th

inapplicable tail-wagging-dog concerns

quantity

pertained only to

in which

Harrison_________

1992)

(holding

where disputed

drug-

sentence for convicted conduct),

cert. denied, 508 U.S. 929 (1993).

_____ ______
not a case

Cir.

v.

In short, this

due process required

sentencing.

-1111

is simply

anything more

at

the

benefit

Lindia's

of

own

Aguirre's)

Cunniff

videotape

testimony

transcript from

(and

the

at

hotel

the sentencing

the hotel meeting

stated

of the

desire

meeting

hearing.

clearly reveals

and

agreement

with 150 to 200 pounds of marijuana.

to

and

The

Lindia's

provide

The discussion

included details such as the identification of the shipment's

source,

the

marijuana,

capacity

of

the

vehicle

to

transport

and the number of days for delivery.

was sufficient, reliable evidence

the

Thus, there

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

intent

F.3d

be persuaded

that Lindia did

not have

and ability to produce the 150-pound lot.

at 777.

The

court

was free

to reject,

the

Wihbey, 75
______

as it

did,

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

"puffing" to impress the buyer into future negotiations.

Whiting,
_______

28 F.3d

at

1305 (refusing

to disturb

See
___

sentencing

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

___ ____ _____________

v.

DeMasi, 40 F.3d 1306,

______

that sentencing court's

inferences cannot

S. Ct. 947 (1995).

lacked

the

1322 n.18 (1st

Cir. 1994) (noting

choice between supportable plausible

amount to clear error),

cert. denied, 115

_____ ______

Lindia did not prove to the court that he

intent and

ability

to

produce the

negotiated

amount; rather,

based on

the evidence presented,

the court

-1212

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

under U.S.S.G.

conspiracy and,

2D1.1 to

as such,

determine

were includable

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
held

that stare
_____

statutory

decisis required
_______

interpretation

it to

pertaining

certain drug,

In Neal, the
____

in

adhere to
to

face

sentencing

of

conflicting

methodology set forth in the Guidelines.

of a

newly
116 S.

Here, Lindia cites no controlling sentencing

precedent with which application note

Rather, Lindia

the

the

court
a prior

calculation

Ct. at 768-69.

law."

cites cases

12 actually conflicts.

affirming the general

principle

that the object of a conspiracy is an element of

the offense

and must be

See
___

States
______

proven beyond

v. Bush, 70 F.3d
____

that in a multiple-object

a reasonable doubt.
557, 561 (10th

United
______

Cir. 1995) (holding

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
(1996).

Lindia

level), cert. denied, 116 S. Ct. 795

_____ ______

contends

effectuate

the

conspiracy

conviction,

that because

substantive offense

"long-established

law

conspiracy" because

specific intent

must

be

application note
for

12

identifying

proven for

conflicts with

the

it permits inclusion of

to

object

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.

case

gone to

prove

any

Campbell,
________
simply

specific
61

part

methodology for
to

trial, the

government would

amount

of

F.3d at

979.

of

Sentencing

the

drugs

Thus,

Commission's

had to

conviction.

application note

employing the penalty

quantity set forth in

for

not have

Had the

12 is

permissible

provisions pertaining

841(b); it does

not remove from

the government's burden an element of the conspiracy offense.

-1313

The

offender

district

court sentenced

under 21 U.S.C.

distribution offenses and the

4B1.1.

arguing

Lindia

first,

challenges

that

and

second,

predicate

that the

offense

994(h) due to

this aspect

See U.S.S.G.
___

of his

commit

sentence,

controlled

trigger career offender status,

court should

a Rhode

to

a career

two previous drug

instant offense.

conspiracy

substance offense should not

Lindia as

Island

not

have counted

charge

to which

as a

Lindia

pleaded nolo contendere.

____ __________

-1414

1.

Conspiracy As Predicate Offense

___________________________________

In 1994, this

circuits

in

(n.1),

the

commit

holding

offense"

that,

Commission

"crime

as a

of

court joined a number of

in

U.S.S.G.

properly

violence

triggering

4B1.2, comment.

designated

or

or predicate

our sister

conspiracy
__________

controlled

to

substance

offense for

career

offender purposes, even though conspiracy convictions are not

listed

in

U.S.C.

619

the body

994(h).

of the

pertinent

guidelines or

United States v. Piper, 35 F.3d

______________
_____

in 28

611, 618-

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

_____ ______

1118

(1995).

Piper and
_____

commit

On appeal,

join those

Lindia

invites us

circuits holding that

the crimes defined in

to reconsider

conspiracies to

994(h) do not fall within its

purview.

F.3d

See
___

766 (8th

(1996).

We

e.g., United States v.

____ ______________

Cir.

1994), cert.
_____

decline

the

Mendoza-Figueroa, 28
________________

denied,
______

invitation

and

116 S.

adhere

Ct.

939

to

our

controlling precedent, thus affirming

the use of the instant

conspiracy

the

conviction

to

trigger

career

offender

provisions.

2. The Rhode Island Nolo Contendere Plea

_________________________________________

In 1986, Lindia pleaded

Island charge of possession

("the

Lindia

1986 charge").

"guilty as

deferred sentence.

nolo contendere to a Rhode

____ __________

with intent to deliver marijuana

On this plea, the state court adjudged

charged

and convicted"

and

gave him

Lindia argues that the 1986 charge is not

-1515

a "conviction"

constitute

under Rhode

predicate

Island law and

offense

for

therefore cannot

purposes

of

career

offender status.

We have previously

or not a

addressed the issue

nolo contendere plea and

____ __________

of whether

subsequent disposition in

Rhode

Island

constitutes

sentencing purposes.

813, 816-17

(1992).

criminal

(1st

Cir. 1991),

statute, 18

U.S.C.

state law
_____

921(a)(20).

provisions,

constitutes

F.3d

cert.
_____

denied, 504
______

886,

924(e),

which

"conviction."

U.S.

978

Id. at
___

specifically

not a

state

816; see 18
___

By contrast, for purposes of the career

whether

"conviction" is

892

federal

the armed-career-

determines whether or

federal law and the Guidelines.

60

for

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

___ _____________
_______

disposition constitutes a

offender

"conviction"

Patrone involved sentencing under

_______

provides that

U.S.C.

(1st Cir.

or not

determined

state

disposition

by

reference to

See United States v. Pierce,

___ _____________
______

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

contendere,
__________

guilty

plea,

"determines whether

countable `conviction'" for

trial,

or

and when

purposes of the

-1616

plea

there has

of

nolo
____

been a

Career Offender

guideline.

60 F.3d at

offense, to

which the defendant pleaded

that

resulted in

892.

Similarly,

adjudication,

"conviction" for

States
______

v.

deferred

contendere
__________

sentence

75

F.3d

constituted a

778,

guideline.

plea, subsequent

also

career offender purposes.

Cuevas,
______

Florida

nolo contendere and

____ __________

the Career Offender

Lindia's nolo
____

and

that a

"withheld adjudication,"

countable "conviction" under

Id.
___

We concluded

constitute

See also United

___ ____ ______

780-83 (1st

Cir.

1996)

(holding,

under

disposition

federal

on nolo
____

standards,

contendere plea
__________

that

is a

Rhode

Island

"conviction" for

immigration law purposes).

Moreover,

there is

charge would constitute a

In Patrone, we
_______

3(a),

nolo
____

"conviction

for

little

doubt

the

contendere
__________

plea

purpose"

will

if

the

Gen. Laws

not

without violating its terms.

"shall

further provides,

court

places

not apply to

948 F.2d at 816, n.1.

however, that

any person who is

12-18-

constitute

defendant on probation and the defendant completes

12-18-3(b)

1986

conviction under Rhode Island law.

explained that under R.I.

any

that

the

probation

Section

subdivision (a)

sentenced to serve a

term

in the adult correctional institution or who is given a

suspended or deferred sentence in addition to probation."

explained

that

in Patrone,
_______

we interpret

a nolo contendere plea followed

____ __________

-1717

this provision

As

to mean

by a deferred sentence

(or other sentence

described in

12-18-3(b)) constitutes

"conviction" under Rhode Island law.

Lindia

inapplicable,

contends that

reading much into

addition
________

See id.
___ ___

analysis in

Patrone is
_______

12-18-3(b)'s language: "or

deferred

sentence

added).

Lindia claims that he was not placed on "probation"

for the 1986 charge,

in
__

our

this issue.

Island law

probation."
_________

(emphasis

rather, he "entered probationary status

based solely on an agreement

General."

to
__

with the Rhode Island

Attorney

The record before this court is less than clear on

It is

apparent, however,

provides for

nolo contendere plea and

____ __________

that although

a special circumstance

successful completion of

Rhode

in which

probation

will not constitute a

apply

where

the

conviction, that circumstance will not

defendant

is also

given

sentence

imprisonment, or a suspended or deferred sentence.

Gen. Laws

12-18-3.

placed on

probation,

given

a deferred

12-18-3(a)

of

See R.I.
___

Thus, even assuming that Lindia was not

the controlling

sentence, thus

inapplicable.

applicable Rhode Island

fact is

that he

rendering the

Lindia

cites

law in which a nolo

____

was

benefits of

to

no

other

contendere plea
__________

will not constitute a conviction.8

____________________

8.
the

R.I. Gen.
court

Laws

defers sentencing

contendere, it may
__________
certain

12-19-19 provides, inter

_____

time

on a

plea

of guilty

actually impose a sentence

period

unless

the

alia, that if
____

defendant

or nolo
____

only within a
is

otherwise

sentenced to
time

prison during that

for imposing sentence

nothing about

whether

or

period, in

is extended.
not the

plea,

which case

the

This section says

followed

by

the

-1818

Under

district

both

federal and

court properly

state law

counted Lindia's

standards, the

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

of

VI, calculated

significantly

district court

pursuant to

overrepresents

ruled

statute, 28 U.S.C.

downward departure

the criminal history category

his career

his

that nothing

offender status,

criminal

in

the

history.

The

career-offender

994(h), or in the Guidelines permitted a

on this

not yet decided the

basis.9

The

First Circuit

has

permissibility of such a departure

in a

career offender case, see United States v. Morrison, 46

___ _____________
________

F.3d

127,

129

(1st

Cir.

1995), although

circuits have answered this

e.g.,
____

United States v.
______________

many

of

our

sister

question in the affirmative, see

___

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

commencing

at 18

to the

U.S.C.

Sentencing

3551, 28

Reform

Act of

U.S.C.

991-998

1984,

(as

____________________

deferred sentence, constitutes a

structure of

12-18-3, however,

"conviction."

Based on the

it is apparent

that Rhode

Island treats nolo contendere pleas as convictions unless the

____ __________
______
defendant meets the provisions of

9.

The court did not

12-18-3.

indicate in any way whether

would depart if it had the authority to do so.

-1919

or not it

amended), the United States Sentencing Commission promulgates

Sentencing Guidelines that

ranges for

v.

categories of defendants and

United States,
_____________

U.S.C.

establish presumptive

503 U.S.

193, 195-96

sentencing

offenses.

Williams
________

(1992).

Under 28

994(h),

The

Commission

guidelines
of
term

shall

specify a sentence

imprisonment at
authorized

defendants

assure

in

or near
for

which

that

to a term
the maximum

categories
the

the

defendant

of
is

eighteen years old or older and [has been

convicted
drug

of a

violent crime

offense and

has a

or felony

least two

such

prior convictions].

This

statute

Guidelines

is

meant

provide

to

ensure

that certain

maximum authorized sentences.

70

F.3d 1396,

guideline,

of

Labonte, 70
_______

F.3d

The

is

setting

reference

forth

enhanced

See U.S.S.G.
___

at 1400-1401.

to offense

total

offense

statutory maximums10

Career Offender

the

establishes the career-offender presumptive

by

Commission's

See United States v. Labonte,

___ _____________
_______

4B1.1,

994(h).

the

felony-recidivists receive

Cir. 1995).

U.S.S.G.

implementation

(backg'd);

1404 (1st

that

Commission's

4B1.1, comment.

The

guideline

sentencing range

levels

-- and

--

by

provides

that

"[a] career

offender's

criminal

history category

in

____________________

10.

The

First

interpretation
applicable

Circuit
that

unenhanced

has

"maximum

upheld
term"

statutory

LaBonte, 70 F.3d 1396.

_______

-2020

the
in

maximum.

Commission's
994(h)
See
___

is

the

generally
_________

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

U.S.S.G.

4B1.1.

The

court to

Sentencing

depart from

range "only when

Reform

sentencing

Guidelines' presumptive

sentencing

it finds that `there

or mitigating circumstance

adequately

taken

into

of a

(providing

"maintaining

individualized

sentences

by

the guidelines.'"

U.S. at 198 (quoting 18 U.S.C.

include

exists an aggravating

kind, or to

consideration

Commission in formulating

991(b)(1)(B)

Act permits

that

the

not

Sentencing

Williams,
________

503

3553(b)); see also 28 U.S.C.

___ ____

the

sufficient

when

a degree,

Commission's

flexibility

warranted by

purposes

to

permit

mitigating

or

aggravating

factors

establishment

not

of

Accordingly, the

taken

general

into

account

in

the

sentencing

guidelines").

Guidelines provide that "a

case that falls

outside the linguistically applicable guideline's `heartland'

is

a candidate for departure."

F.2d

942, 947

intro.

(1st

United States v. Rivera, 994

_____________
______

Cir. 1993);

comment. (4)(b).

Such

see
___

U.S.S.G. Ch.I,

cases are

Pt.A,

deemed "unusual,"

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

not

"adequately"

3553(b).

thoroughly

principle

explicitly

considered

Id.
___

explained

are

those

rejected

As

them

Justice

in

(then

Rivera,
______

several

within

the

factors

as permissible

the

Chief

meaning

Judge) Breyer

exceptions

the

grounds

of

to

Commission

this

has

for departure.

-2121

Id. at 948-949
___

(also explaining

that encouraged

departures

are likely "reasonable" while discouraged

departures require

"unusual or

also Williams, 503

____ ________

U.S.

at 200

special" circumstances); see

___

(concluding that

departure based

on expressly

rejected factorconstitutesincorrect applicationofGuidelines).

The

set

forth

Application

in

Instructions for

U.S.S.G.

1B1.1,

sentencing

court

determines

defendant's

criminal history

explain

the

category,

guideline

range, it

"Specific

Offender Characteristics and

other policy

might

warrant

then refers

in

U.S.S.G.

addresses

adequacy

of

offense

Ch.5, Pt.H,

intro.

the

applicable

provisions for

Departures" and "any

the guidelines that

sentence."

4A1.3,

criminal-history

comment. and

specifically

reflection of a defendant's past criminal conduct.

U.S.S.G.

after

level,

and the

imposing

guidelines policy statement,

the

that

to certain

statement or commentary in

consideration

the Guidelines,

category's

See also,
___ ____

5H1.8 (stating

that criminal history is

relevant in determining if sentence

should be outside applicable guideline range).

explicitly recognizes

that

a defendant's

Section 4A1.3

criminal

category may "significantly over-represent[]

history

the seriousness

of a defendant's criminal history or the likelihood that

defendant will

commit

(policy statement).

further crimes."

U.S.S.G.

In such cases, the sentencing

consider a downward departure.

Id.
___

-2222

the

4A1.3,

court may

We agree with our sister

circuits (that

court

have considered the issue)

may invoke

offender

category

inaccurately

history,

4A1.3 to depart downward from the career-

if

reflects

within the

that a sentencing

it

concludes

the

that

defendant's

meaning of

18 U.S.C.

the

category

actual

criminal

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

______________
______

1992);

United States v.
_____________

Cir. 1991); United States

_____________

Bowser, 941
______

489, 494 (2d Cir.

F.2d 1019,

1024 (10th

v. Lawrence, 916 F.2d 553,

________

554-55

(9th Cir. 1990).

The district court

in

994(h) and

4B1.1,

as

the

assigned

Commission's implementation,

precluding

overrepresentation

interpreted Congress's

in all

departure

cases in

on

which the

a criminal history category of

Offender guideline.

the Commission's

Section

the

mandate

U.S.S.G.

basis

of

defendant is

VI under the Career

994(h), however, is directed to

duty to formulate

guidelines pertaining to

categories of defendants, not to sentencing courts faced with

individual defendants.

Commission

empowering

might

have

As

rejected

the sentencing

comprise an

explained above, Congress and the

rigid

court

sentencing

to

"unusual" case.

designated as a "forbidden departure"

schemes

consider factors

The Commission

by

that

has not

the overrepresentation

of a criminal history category in career offender

Rivera, 994 F.2d at

______

cases, see
___

948-49, and "there is nothing

unique to

-2323

career offender

of its

`sensible

status which would strip

flexibility' in

a sentencing court

considering

departures."

Rogers, 972 F.2d at 493.

______

district

Guidelines cases has a

"ordinariness"

or

court

"unusualness"

numerous

of

particular

When faced with a departure

a career-offender case,

experience and

considers

"special competence" to determine the

Rivera, 994 F.2d at 951.

______

in

that

as in

other cases,

case.

motion

the court's

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"

case"

for sentencing

(citation omitted)).

court's "superior

Because

`feel' for

the district

the

court in

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

criminal

history

circumstances,

category

so as to

overrepresented

make his case

Lindia's

"unusual," we remand

for its determination of this issue.11

III.
III.
____

Conclusion
Conclusion
__________

For

vacate
______

the

in part

foregoing

and remand
______

reasons, we

for proceedings

affirm
______

in

part,

consistent with

____________________

11.

The government, both in its brief

conceded that the court

basis

and

stated

and at oral argument,

had the authority to depart

that,

should

resentencing would be appropriate.

we

agree,

on this

remand

for

-2424

this opinion.

-2525