United States v. DiPina

• Court: Court of Appeals for the First Circuit
• Decided: May 27, 1999
• Docket: 98-2142
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-2142

                         

                          UNITED STATES,



                       Plaintiff, Appellee,



                                v.



               JESUS DiPINA a/k/a GUSTAVO GONSALEZ,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                 FOR THE DISTRICT OF RHODE ISLAND



          [Hon. Ronald R. Lagueux, U.S. District Judge]


Before



                     Boudin, Circuit Judge,

                                

                 Bownes, Senior Circuit Judge,

                                

                   and Lynch, Circuit Judge.


Carlos J. Martinez, with whom Cheryl J. Sturm was on brief,

for appellant.



     James H. Leavey, Assistant United States Attorney, with whom 

Margaret E. Curran, United States Attorney, was on brief, for

appellee.


May 27, 1999


BOWNES, Senior Circuit Judge.  The issue before us is

whether the sentencing guidelines, applied to the facts of this

case, permitted the sentencing court to consider the defendant's

juvenile dispositions in Rhode Island Family Court in calculating

his criminal history category.  We hold that the answer depends on

certain factual determinations and the record is not clear enough

as to these issues for us to resolve the dispute.  We remand for

further fact-finding and resentencing.

  Jesus DiPina pled guilty to possession with intent to

distribute more than 100 grams of heroin.  See 21 U.S.C.

 841(a)(1), (b)(1)(B) (1994).  As part of his plea agreement, in

exchange for his pleading guilty to the charge, the prosecution

agreed that, at sentencing, it would recommend that the district

court impose the lowest term of imprisonment computed by the court

under the sentencing guidelines.  The prosecution also agreed to

recommend that DiPina receive the benefits of 18 U.S.C.  3553(f)

(1994), U.S.S.G.  5C1.1 (1997), the so-called "safety valve,"

which would exempt him from the mandatory minimum sentence of five

years' imprisonment, provided, inter alia, that his criminal

history score was no higher than one point.

  The Presentence Investigation Report (PSR) prepared by

the Probation Department listed DiPina's criminal record as

including three juvenile dispositions, all in Rhode Island Family

Court:  (1) tampering with a motor vehicle, "Admits Sufficient

Facts, one year probation, special condition fifty-percent

restitution"; (2)  resisting arrest, "Nolo, 16 months probation";

(3) unlawful delivery of heroin, "Admits Sufficient Facts, eighteen

months Rhode Island Training School."  (Emphasis added.)  The

court counted each of these dispositions as a "prior sentence"

under the sentencing guidelines, U.S.S.G.  4A1.2(a)(1), (d)(2)

(1997), and found DiPina to have four criminal history points which

put him in criminal history category III.  He was therefore not

eligible for the safety valve, and the court sentenced him to the

statutory minimum of five years in prison.  See 21 U.S.C. 

841(a)(1), (b)(1)(B).  

  On this appeal, DiPina does not contest the total

offense level assigned to him (23), but he does challenge his

criminal history category.  He argues that two of his three prior

juvenile "sentences"   for the motor vehicle and heroin offenses,

both carrying the notation "admits sufficient facts"   should not

count toward his criminal history.  DiPina does not dispute that

the charge of resisting arrest counts toward his criminal history,

but he contends that his history score should be limited to this

one point.  If DiPina is correct as to both of the other

dispositions, then his criminal history would fall in category I

instead of category III and he would be eligible for the safety

valve.

  We review a district court's interpretation of the

sentencing guidelines de novo.  See United States v. Nicholas, 133

F.3d 133, 134 (1st Cir. 1998).  Unfortunately, the relevant

guidelines are hardly a model of clarity.

  We begin, as always, with the text of the relevant

sentencing guidelines.  U.S.S.G.  4A1.1(a)-(c) (1997) in

pertinent part read as follows:

   4A1.1.  Criminal History Category

    The total points from items (a) through (f)

  determine the criminal history category in the

  Sentencing Table in Chapter Five, Part A.



    (a) Add 3 points for each prior sentence of

  imprisonment exceeding one year and one month.



    (b) Add 2 points for each prior sentence of

  imprisonment of at least sixty days not

  counted in (a).



    (c) Add 1 point for each prior sentence not

  counted in (a) or (b), up to a total of 4

  points for this item.



  Offenses committed prior to age eighteen are not immune

from being counted under  4A1.1.  The commentary to  4A1.1

explains that  4A1.2(d) applies to offenses committed prior to the

defendant's eighteenth birthday.  See U.S.S.G.  4A1.1 application

note 2.  Such youthful offenses are, however, treated somewhat

differently:

    (d) Offenses Committed Prior to Age 18

      . . . .

    (2) . . . .

                  (A) [A]dd 2 points under

          4A1.1(b) for each adult

         or juvenile sentence to

         confinement of at least

         sixty days if the defendant

         was released from such

         confinement within five

         years of his commencement

         of the instant offense;



                  (B) add 1 point under

          4A1.1(c) for each adult

         or juvenile sentence

         imposed within five years

         of the defendant's

         commencement of the instant

         offense not covered in (A).



U.S.S.G.  4A1.2(d).

  Section 4A1.2(a), one of the "definitions and

instructions for computing criminal history," includes the

following:

  (a) Prior Sentence Defined

        (1) The term "prior sentence"

    means any sentence previously

    imposed upon adjudication of

    guilt, whether by guilty plea,

    trial, or plea of nolo

    contendere, for conduct not part

    of the instant offense.



U.S.S.G.  4A1.2(a)(1).

  DiPina argues that his two contested prior juvenile

dispositions do not appear to fall within the plain meaning of

 4A1.2(a)(1), the definition of a "prior sentence," because the

record does not reflect an "adjudication of guilt," whether by

virtue of a guilty plea, trial, or plea of nolo contendere.  See

United States v. Rockman, 993 F.2d 811, 813 (11th Cir. 1993)

(holding that Section 4A1.2(a)(1) is clear and unambiguous on its

face and does not cover "[s]entences imposed wherein adjudication

of guilt is withheld").  We also note that the sentencing

guidelines, as criminal laws, are subject to strict construction. 

See United States v. Khang, 904 F.2d 1219, 1222 (8th Cir. 1990)

(stating that "[t]he Sentencing Guidelines must be strictly

construed"); see also Dowling v. United States, 473 U.S. 207,

212-14 (1985) (quoting Chief Justice Marshall for "[t]he rule that

penal laws are to be construed strictly" (internal quotation marks

omitted)); United States v. Stoner, 927 F.2d 45, 47 (1st Cir. 1991)

(citing  United States v. Anzalone, 766 F.2d 676, 680 (1st Cir.

1985)). 

  The government argues that DiPina's two contested prior

dispositions count toward his criminal history as a matter of law,

relying on United States v. Unger, 915 F.2d 759 (1st Cir. 1990). 

The government reasons as follows:  because Unger's prior juvenile

sentences were based on admissions of "sufficient facts" in Rhode

Island Family Court, Unger controls the present case and dictates

a decision against DiPina as a matter of law.  We disagree. 

  According to the government, Unger is controlling here

because allegedly "[i]t involved the same question as to the legal

significance of an 'admission of sufficient facts,' in the same

court (Rhode Island Family Court)."  Gov't Br. at 8.  The district

court went even further, saying that Unger "is absolutely clear

that admission of facts sufficient to convict in a juvenile

proceeding is a conviction, and a juvenile conviction can be used

to determine the criminal history category under the guidelines."

  But in Unger, we never discussed whether an "admission of

sufficient facts" satisfies the requirement in  4A1.2(a)(1) of an

"adjudication of guilt," nor of a plea of guilty or nolo.  In

Unger, the defendant argued that a prior juvenile sentence should

not be counted toward his criminal history because the offense was

a "juvenile status offense."  Unger, 915 F.2d at 762-63.  We

rejected this contention.  We held that federal, not state, law

determines what constitutes a conviction for purposes of U.S.S.G.

 4A1.2(c)(2) (mandating that sentences for "juvenile status

offenses and truancy" are "never counted"), and that the district

court must look at the substance of the underlying state offense to

determine whether it is a status offense or instead should be

counted in computing criminal history.  See id.  Finding that Unger

had been previously convicted of receiving stolen goods, breaking

and entering with intent to commit larceny, and assault and

battery, we concluded that "these malefactions" could in no way "be

considered [juvenile] status offenses."  Id. at 763 (internal

quotation marks omitted).  

  The government observes that DiPina's prior offenses,

tampering with a motor vehicle and unlawful delivery of heroin,

cannot be considered "status offenses" any more than Unger's prior

offenses were.  That is true, so far as it goes.  But DiPina is not

basing his appeal on the "status offense" argument, as Unger had

done.  He argues, and we agree, that Unger is distinguishable from

DiPina's prior juvenile dispositions:  Unger was based on the

existence of a conviction; we held that the government had

satisfied its "initial burden of proving the fact of conviction." 

Unger, 915 F.2d at 761; see also id. at 760-61 (referring to prior

disposition as a "conviction" and an "adjudication"); id. at 762

(noting that defendant had previously been "found 'wayward'").  The

opinion does not make it clear what basis existed in the Unger

record to reach this conclusion, but whatever it was, there is no

basis in the record before us on the present appeal for us to

conclude that an express conviction or other "adjudication of

guilt," U.S.S.G.  4A1.2(a)(1), took place in DiPina's prior cases.

  While the government is correct that the factual

background of Unger was similar to this one   in that "the

defendant 'admitted sufficient facts,' in Rhode Island Family

Court," Gov't Br. at 8   neither party in Unger raised the "same

question" as that before us today.  Nor did we address that

question, even in passing.  Where, in a prior decision, we have not

considered an issue directly and assessed the arguments of parties

with an interest in its resolution, that decision does not bind us

in a subsequent case where the issue is adequately presented and

squarely before us, merely because some of the background facts are

the same.  Cf. Heck v. Humphrey, 512 U.S. 477, 482 (1994)

(rejecting Court's own dictum in prior opinion which "had no cause

to address, and did not carefully consider, the damages question

before us today").  We would not be bound even if, in Unger, we had

made a passing comment about the present issue in dictum.  See

Heck, 512 U.S. at 482; Dedham Water Co., Inc. v. Cumberland Farms

Dairy, Inc., 972 F.2d 453, 459 (1st Cir. 1992) ("Dictum constitutes

neither the law of the case nor the stuff of binding precedent."). 

But the government cannot even point to dictum in Unger that

purports to bear on the present issue.

  For all these reasons, Unger does not control this case,

and we reject the government's argument that, as a matter of law,

U.S.S.G.  4A1.2(a)(1) supports the district court's adding

criminal history points based on DiPina's two prior juvenile

dispositions. 

  Instead, the applicability of  4A1.2(a)(1) will be fact-

driven.  It will depend on what process was actually followed in

the case of DiPina's prior juvenile dispositions.  As we discuss

infra, the record before us is insufficient; we need more facts to

be able to determine whether what happened to DiPina in Family

Court was tantamount to a guilty plea or nolo plea, bringing those

dispositions under  4A1.2(a)(1).  DiPina's two dispositions based

on admission to "sufficient facts" were certainly not absolutely

identical to a nolo plea: Rhode Island Family Court allows for

dispositions that are based specifically on a "nolo" plea, as the

PSR indicates was the case for DiPina's resisting arrest

disposition.  Therefore, the "admits sufficient facts" designation

in DiPina's other two juvenile dispositions must be different from

a "nolo" plea in at least some respects.

  In a slightly different context, in United States v.

Roberts, 39 F.3d 10 (1st Cir. 1994), we made it clear that it was

important to know how the process of admitting to sufficient facts

"actually works in the court room," because "[h]ow it works

matters."  Id. at 13.  We also set forth some indicators of what

kind of process would be sufficient to "make the admission

effectively an admission of guilt under the guidelines":

    Perhaps, as in a typical federal court guilty

  plea, the prosecutor gives a recitation of

  what the government would prove, and the

  defendant expressly accepts the government's

  version of events (possibly with

  qualifications), and the judge then determines

  that the admitted facts if proved would

  constitute an offense.  This sequence, or any

  other that achieved the same effect, would

  give reasonable assurance that the defendant

  had confessed to certain events and that the

  events constituted a crime.



39 F.3d at 13.

  We also suggested a procedure that would not be

"effectively an admission of guilt under the guidelines":

    [I]n the hard-pressed conditions of a busy

  first-instance court, it is easy to imagine

  procedures that would give far less assurance. 

  For aught we can tell, the prosecutor and the

  defendant or his counsel may do little more

  than tell the judge that the parties have

  agreed to dispose of the matter by a

  continuance, admission to sufficient facts,

  and a treatment program. . . .  [S]uch a

  procedure . . . would give one little

  confidence that the defendant had admitted to

  a crime.  Indeed, it would approach the

  "diversion from the judicial process without a

  finding of guilt" that the guidelines say is

  "not counted."  U.S.S.G.  4A1.2(f).



Roberts, 39 F.3d at 13. 

  In substance, these two scenarios provide some guidance

that may help the district court   when more is known about the

Rhode Island process   to decide whether admission to sufficient

facts in the juvenile court should be viewed as the equivalent of

a guilty plea or a nolo plea under U.S.S.G.  4A1.2(a)(1).  We are

not, however, seeking narrowly to confine the district court's

inquiry: the phrase "admission to sufficient facts" does not

necessarily mean the same thing in every context or jurisdiction,

the Massachusetts two-step procedure appears to be unusual, and

Roberts was not an attempt to create an all-encompassing formula. 

Both sides are free to produce information on remand about how the

admission to sufficient facts procedure operates in Rhode Island

juvenile courts in general, or with reference to the specific two

instances involved in this case (if information is available), or

both.  In particular, if the government relies on evidence of

general practice and on the inference that the general practice was

followed in DiPina's case, DiPina is free "to offer evidence that

the general practice was not followed in his case and that what

happened to him was inadequate to constitute" the equivalent of a

guilty plea or nolo plea.  Roberts, 39 F.3d at 13.  The court

should, in each instance, focus on whether the substance of the

plea is guilty or nolo, i.e., whether the defendant either

confessed to events which constituted a crime or stated his

decision not to contest such events.  See id.

  Further, we are not suggesting that every admission to

sufficient facts in Rhode Island juvenile court necessarily must be

treated in the same way.  For example, it might turn out to be the

fact that the admission to sufficient facts that led to DiPina's

spending eighteen months in the Rhode Island Training School might

  given the seriousness of the penalty   have been accompanied by

or entailed notice and procedures that are different from those

involving the contested probation sentence.  If so, and if those

procedures are tantamount to a plea of guilty or nolo, then it will

be possible for the district court to conclude that one of DiPina's

prior juvenile dispositions should be counted toward his criminal

history and one should not.  In the circumstances of this case,

although we do not resolve the issue, it would appear that counting

one such prior disposition would be enough to produce the criminal

history level required to sustain DiPina's sentence in the present

case, regardless of how the other prior disposition is treated.

  As we noted in Roberts, 39 F.3d at 13, because it is the

government that is seeking to assign the extra criminal history

points to DiPina, the government "therefore carries the burden of

showing whatever facts are needed to justify the point[s]."  In

this case, that means the burden is on the government to "show that

what happened in [the prior proceeding] was in substance" a plea of

guilty or nolo, id., as required by  4A1.2(a)(1), i.e., the court

must have found "that the defendant ha[s] confessed to certain

events" or that other evidence proves such events, "and that the

events constituted a crime," id.

  This is a factual question.  The district court did not

resolve it and the record before us today provides insufficient

evidence for us to know which of the two polar case scenarios in

Roberts is a closer analogue to DiPina's prior juvenile

dispositions.  The record simply tells us that DiPina "admitted

sufficient facts."  Sufficient for what?  What did he admit?  Did

he admit sufficient facts which, if proved, would constitute an

offense, which might be tantamount to a plea of guilty or nolo

under the guideline?  Cf. Roberts, 39 F.3d at 12-13 ("admission of

guilt" under U.S.S.G.  4A1.2(f)).  Or did he instead admit no

actual facts at all, merely "tell[ing] the judge that the parties

have agreed to dispose of the problem" by an admission of

sufficient facts and the negotiated disposition?  Id. at 13.  

  In Nicholas, we relied on facts "formalized in written

stipulations," even though we rejected the defendant's claim that

the government failed to meet its burden because it did not append

the actual police report to the defendant's waiver of rights

submitted to the court under Commonwealth v. Duquette, 438 N.E.2d

334, 342 (Mass. 1982).  See Nicholas, 133 F.3d at 136.  In the

present case, not only are there no formal written stipulations of

the facts, but the record before us does not even reflect an oral

agreement as to what facts underlay the prior juvenile

dispositions.  The PSR summarizes some allegations regarding

DiPina's juvenile heroin charge (although it offered no facts as to

the motor vehicle charge).  But the PSR cites no source or evidence

in support of the stated allegations and we have no reason to

believe that DiPina's "admission of sufficient facts" in Family

Court encompassed any or all of such allegations.  

  For aught we can tell, DiPina's admission was simply the

type described in the second Roberts scenario (the "busy court"),

and we have "far less assurance" that DiPina "confessed to certain

events and that the events constituted a crime."  Roberts, 39 F.3d

at 13; cf. United States v. Dueno, 171 F.3d 3, 7 (1st Cir. 1999)

(analyzing prior adult conviction and concluding that there was

"insufficiently reliable evidence to ground a finding" that the

defendant's guilty plea to breaking and entering charge entailed

entry into a building as would be necessary to invoke career

offender provisions of sentencing guidelines; and deciding that

PSR's uncontradicted description of a home invasion, presumably

based on a police report (of undisclosed genesis), was insufficient

to demonstrate that defendant's prior guilty plea "constituted an

admission to the building invasion described by the police

report").

  The record does not tell us what facts DiPina admitted,

and therefore we cannot know whether what he admitted is sufficient

to satisfy the requirement of the guideline.  The district court

baldly asserted, without articulating any basis or citing to Rhode

Island law, that an admission of sufficient facts is the

"equivalent of a nolo plea."  That assertion was not based on the

court's actual findings of fact, and it is clearly not supported by

the present record.  Nothing in the government's post-argument

submission, relying on three rules of the Rhode Island Family

Court, clearly resolves the matter in the government's favor.

  At this point, because the government has failed to

satisfy its burden on the record before us, we could simply vacate

the sentence and remand for the district court to resentence DiPina

without considering, as part of his criminal history, his prior

juvenile dispositions.  Instead, we remand for a factual

determination of what judicial process was followed in DiPina's 

juvenile cases.  See Roberts, 39 F.3d at 13-14.  We leave it to the

district court on remand to determine the relevant facts in the

first instance.  The court on remand will have to determine whether

all requirements of  4A1.2(a)(1) were met.  That is, was DiPina's

"admission of sufficient facts" the functional equivalent of a

guilty plea or a nolo plea?  (There apparently was no trial, the

third possibility under 4A1.2(a)(1).)  If one or both of DiPina's

prior dispositions was the equivalent of a guilty plea or nolo

plea, then that disposition may be counted toward his criminal

history.  On the other hand, if, after fact-finding, it appears

that all DiPina did was "submit to the court's jurisdiction," Rule

9, RIFC Rules, and accept its rehabilitative services, that is a

far cry from the Roberts scenario where "the defendant ha[s]

confessed to certain events and . . . the events constituted a

crime."  Roberts, 39 F.3d at 13.  If DiPina's prior juvenile

dispositions are not tantamount to a guilty plea or a nolo plea,

then they may not be counted, because U.S.S.G.  4A1.2(a)(1) does

not afford a basis for the government to add such a criminal

history point.  We remind the parties that the government bears the

burden, if it wishes to add points to a defendant's criminal

history, of proving whatever facts are necessary to establish the

justification for adding such points.  See Roberts, 39 F.3d at 13.

  There is another aspect to the remand which was not

discussed by the district court or the parties: the effect, if any,

to be given to U.S.S.G.  4A1.2(f), titled "Diversionary

Dispositions."  Subsection 4A1.2(f) reads as follows:

  (f) Diversionary Dispositions



        Diversion from the judicial

    process without a finding of

    guilt (e.g., deferred

    prosecution) is not counted.  A

    diversionary disposition

    resulting from a finding or

    admission of guilt, or a plea of

    nolo contendere, in a judicial

    proceeding is counted as a

    sentence under  4A1.1(c) even

    if a conviction is not formally

    entered, except that diversion

    from juvenile court is not

    counted.



U.S.S.G.  4A1.2(f) (second emphasis added).

  If DiPina's prior juvenile dispositions were

"diversionary dispositions," then we think it clear that Section

4A1.2(f) does not permit the district court to count those

dispositions as part of DiPina's criminal history.  The last

proviso of subsection 4A1.2(f) contains a significant exception to

the counting of diversionary dispositions:  "diversion from

juvenile court is not counted" toward the defendant's criminal

history.  U.S.S.G.  4A1.2(f) (emphasis added); see also U.S.S.G.

 4A1.2 application note 9 (explaining that "Section 4A1.2(f)

requires counting prior adult diversionary dispositions if they

involved a judicial determination of guilt or an admission of guilt

in open court" (emphasis added)).  

  In Rhode Island, the Family Court is where juvenile

proceedings like DiPina's take place.  See Rhode Island Family

Court Act, R.I. Gen. Laws  14-1-5 (1956, 1981 Reenactment) (The

Family Court has "exclusive original jurisdiction in proceedings

(A) [c]oncerning any child . . . who is:  (1) [d]elinquent; [or]

(2) [w]ayward."); Bouchard v. Price, 694 A.2d 670, 672 (R.I. 1997). 

Therefore, the Rhode Island Family Court is encompassed within the

meaning of "juvenile court" in U.S.S.G.  4A1.2(f), and

diversionary dispositions in that court are not counted toward a

defendant's criminal history.

  Thus, if DiPina's prior juvenile dispositions were

"diversionary dispositions" within the meaning of  4A1.2 (f), then

they could not be counted toward his criminal history.  The record

reveals nothing about whether or not they were diversionary, so the

district court must resolve this question on remand.  We note that

the guidelines do not specifically define what they mean by a

"diversionary disposition," nor did the drafters make it

particularly clear what they intended to mean by that term.  They

offer one, and only one, example   a "deferred prosecution"   which

is certainly not exhaustive.  U.S.S.G.  4A1.2(f). And subsection

4A1.2(f) begins with a reference to "[d]iversion from the judicial

process." 

  In sum, on remand, the district court must first

determine whether DiPina's prior juvenile dispositions constituted 

diversions, such that subsection 4A1.2(f) applies.  If so, because

Family Court is the juvenile court in Rhode Island, these

dispositions cannot be counted toward DiPina's criminal history.  

  If, on the other hand, DiPina's prior juvenile

dispositions were not diversionary dispositions, then the district

court must determine whether his admitting sufficient facts in

Rhode Island Family Court was tantamount to a plea of guilty or

nolo under U.S.S.G.  4A1.2(a)(1).  That is, were those admissions

the equivalent of the first Roberts scenario, where "the defendant

ha[s] confessed to certain events" (or other evidence proves such

events) "and . . . the events constituted a crime"?  Roberts, 39

F.3d at 13.  If DiPina's prior juvenile dispositions were not

tantamount to a plea of guilty or nolo, then they may not be

counted toward his criminal history.

  The sentence is vacated and the case is remanded to the

district court for resentencing after making findings of fact and

rulings of law consistent with this opinion.