United States Court of Appeals For the First Circuit
No. 00-1141
UNITED STATES OF AMERICA,
Appellee,
v.
JESÚS 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. Martínez for appellant.
Donald C. Lockhart, Assistant United States Attorney, with whom Margaret E. Curran, United States Attorney, and James H. Leavey, Assistant United States Attorney, were on brief for appellee.
November 1, 2000 -2- BOWNES, Senior Circuit Judge. This case returns to us
after a remand to the district court for further consideration
of the sentencing ramifications of defendant-appellant Jesús
DiPina’s juvenile criminal dispositions. See United States v.
DiPina, 178 F.3d 68 (1st Cir. 1999). On remand, the district
court determined that DiPina's admission of sufficient facts on
juvenile heroin charges should count toward his criminal history
under the United States Sentencing Guidelines, and that he was
therefore ineligible for the “safety valve” provision.
Accordingly, the court reimposed its previous sentence. We
affirm.
I.
On November 22, 1994, DiPina pled guilty to possession
with intent to distribute more than one hundred grams of heroin
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) (1994). He
entered a plea agreement in which he agreed to plead guilty to
the charge in exchange for the government's promise to recommend
that the district court impose the shortest term of imprisonment
under the sentencing guidelines. The government also promised
to recommend that DiPina receive the benefits of the "safety
valve" provision, 18 U.S.C. § 3553(f), U.S.S.G. § 5C1.1 (1997),
which would exempt him from the mandatory minimum sentence of
five years' imprisonment. The safety valve would only apply,
-3- however, if DiPina did not have more than one criminal history
point.
The Presentence Investigation Report (PSR) prepared by
the Probation Department described DiPina's criminal record as
including three juvenile dispositions, all in the 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"; and (3) unlawful delivery of heroin, "Admits
Sufficient Facts, eighteen months Rhode Island Training School."
The district court counted each of these dispositions as a
"prior sentence" under the sentencing guidelines. See U.S.S.G.
§§ 4A1.2(a)(1), (d)(2). Accordingly, it found that DiPina had
four criminal history points, placing him in criminal history
category III. DiPina therefore was ineligible for the safety
valve provision. On February 13, 1995, he was sentenced to the
statutory minimum of five years in prison. See 21 U.S.C. §§
841(a)(1), (b)(1)(B).
After some intermediate litigation not relevant to the
present case, DiPina appealed, contending that the district
court erred in determining his criminal history category. He
argued that two of his three prior juvenile dispositions -- for
the motor vehicle and heroin offenses, both carrying the
-4- notation "admits sufficient facts" -- should not count toward
his criminal history.1 If those two dispositions were
disregarded, DiPina's criminal history would be in category I
instead of category III, and he would be eligible for the safety
valve. On January 29, 1999, while the appeal was pending,
DiPina completed his prison term and began serving his five-year
term of supervised release.
On May 27, 1999, this court held that DiPina's appeal
raised issues that depended on "certain factual determinations
and the record is not clear enough as to these issues for us to
resolve the dispute." See DiPina, 178 F.3d at 78. We vacated
DiPina's sentence and remanded for further proceedings, stating:
[O]n 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
1 At the original sentencing, DiPina did not dispute that the charge of resisting arrest counted toward his criminal history. As discussed infra, he now contends that the PSR was erroneous in stating that he pled nolo contendere to the resisting arrest charge. Rather, DiPina says, the transcript from that disposition indicates that he admitted sufficient facts, just as in the other two dispositions at issue.
-5- tantamount to a plea of guilty or nolo under U.S.S.G. § 4A1.2(a)(1). . . 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.
Id. at 78.
On remand, the district court limited its consideration
to only one of DiPina's juvenile dispositions: his admission of
sufficient facts as to the unlawful delivery of heroin charges,
which had resulted in an eighteen-month sentence at the Rhode
Island Training School (RITS). The government introduced the
following evidence: On July 15, 1992, the state of Rhode Island
filed four charges against DiPina based on allegations that he
delivered heroin to an undercover officer in violation of R.I.
Gen. Laws § 21-28-4.01(2)(a).2 Based on the state's allegation
that DiPina was a danger to the community, he was remanded to
the custody of RITS. DiPina waived his right to a probable
cause hearing.
On August 7, 1992, DiPina, DiPina's lawyer, and
DiPina's mother signed the first page of a two-page document
entitled "Request for Admission of Specific Facts or Admission"
("RFA"). The first page of the RFA described the "offense(s)"
2R.I. Gen. Laws § 21-28-4.01(2)(a) makes it a crime "for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance."
-6- as "Ct-1 - Ct-4 unlawful delivery." As to those offenses,
DiPina affirmed that he was "request[ing] Court permission to
withdraw [his] denial and to enter an ADMISSION TO SUFFICIENT
FACTS OR ADMISSION." DiPina also stated:
I understand that the ADMISSION OF SUFFICIENT FACTS is for all purposes the same as an ADMISSION and that I will be admitting sufficient facts to substantiate the offense(s) which [have] been brought against me in the cases to which these pleas relate.
In the RFA, DiPina affirmed that by changing his plea
he would be "giving up and waiving" seven enumerated rights: (1)
the right to a judge trial and to an appeal of any finding of
delinquency or waywardness; (2) the right to insist that the
state offer evidence proving the elements of the offenses beyond
a reasonable doubt; (3) the presumption of innocence; (4) the
privilege against self-incrimination; (5) the right to confront
and cross-examine the witnesses against him; (6) the right to
present evidence and witnesses on his own behalf and to testify
on his own behalf; and (7) the right to appeal the sentence
imposed by the court after the entry of his admission of
sufficient facts. He also affirmed that he had received no
promises other than that the court would impose a sentence of
eighteen months in RITS, effective July 14, 1992, and that other
pending charges would be dismissed.
-7- Finally, DiPina affirmed that: (1) he understood that
the court could "keep jurisdiction" over him until he was
twenty-one years old; (2) he understood that absent the court's
permission, he would not be allowed to withdraw his plea after
the disposition was imposed; (3) he had discussed the RFA with
his attorney, who had explained the RFA to him; (4) he had "no
questions" concerning the meaning of the RFA and understood the
RFA "completely"; and (5) he swore to the truth of all
statements in the RFA.
DiPina's RFA was presented to the Rhode Island Family
Court on August 7, 1992. DiPina's counsel confirmed that he had
advised DiPina of the rights he would be waiving, and summarized
the rights discussed in the RFA. The prosecutor stated that the
state was prepared to prove beyond a reasonable doubt that
DiPina "did deliver unlawfully heroin to an undercover officer
from the Providence Police on July 1st, July 7th, July 8th and
July 14th of this year."
The family court then addressed DiPina personally and
established, inter alia, that DiPina: (1) was seventeen years
old; (2) had entered an earlier plea before the court; (3) had
been detained at RITS since July 14, 1992; (4) had not recently
used drugs or alcohol; and (5) understood "each and every one of
the rights" he was giving up. In response to the court's
-8- questions, DiPina admitted that on July 1, 1992, at 1:25 p.m.,
he sold heroin to a man on Comstock Street in Providence, Rhode
Island. DiPina further admitted that he sold heroin to the same
man on July 7th, 8th and 14th in 1992. DiPina stated that each
sale was for a different amount of heroin, but that he could not
recall the exact amounts of heroin that he sold.
At the conclusion of the hearing, the family court
pronounced the following judgment and sentence:
I'll accept an admission of sufficient facts for a finding that [DiPina] is delinquent on all four petitions. [DiPina] is committed to the Training School for 18 months.
In written orders of the same date, the court stated that DiPina
had been advised of his rights, had waived those rights, and had
"admit[ted] sufficient facts and submit[ted] to court
jurisdiction." The court entered a finding that DiPina was
"delinquent" and committed him to the custody of RITS for
eighteen months.
Also on that date, the family court signed a
"Certificate of Judge" on the second page of the RFA. There,
the court certified that the parties had provided the court with
the RFA and that the court had established at the hearing that
DiPina understood the rights listed in the RFA and the
consequences of his plea. The court further certified: (1) "I
have also been satisfied by the prosecutor's statement of the
-9- facts, [DiPina's] answers and the content of the [RFA], that
there is a factual basis for [DiPina's] plea"; and (2) "I find
that this plea is made voluntarily, intelligently and with
knowledge and understanding of all matters set forth in the
attached [RFA]."
In determining whether this family court disposition
should be counted in DiPina's criminal history, the district
court first focused on the second question posed by the remand
order: whether the disposition was tantamount to a guilty or
nolo contendere plea. The court stated that DiPina "clearly
admitted guilt of four sales of heroin to an undercover agent at
four different times," and hence had essentially entered a
guilty plea.
The district court then addressed the first question
posed by the remand order: whether the heroin disposition was
diversionary within the meaning of § 4A1.2(f). It noted that
the state court had sentenced DiPina not to a treatment center,
hospital or school, but to eighteen months at RITS, which it
found to be a "juvenile prison" in which males who have
committed serious crimes can be incarcerated until age twenty-
one. The district court concluded that the heroin disposition
-10- "was certainly not a diversion from the criminal justice
system."3
Accordingly, the district court resentenced DiPina to
sixty months’ imprisonment and five years’ supervised release,
the same sentence that it had previously imposed. The court
noted that DiPina had served the prison term, but that his term
of supervised release was still in effect. 4 This appeal
followed.
II.
We begin with the text of the relevant sentencing
guidelines. Sections 4A1.1(a)-(c) of the guidelines, titled
"Criminal History Category," read in pertinent part:
3 The district court employed the following definition of diversionary disposition:
A diversion is when there is a disposition that takes the particular defendant out of the criminal justice system as where someone is sent, for example, to a treatment center instead of incarcerating them, where someone is sent to a hospital, or where, in the case of a juvenile, may be sent to a special school of some sort. 4 At oral argument, DiPina stated that the district court had imposed the term of supervised release to run anew from the date of resentencing, rather than giving him credit for supervised release already served. The transcript of the resentencing, however, does not support this contention; rather, it indicates that the court simply reimposed the previous sentence, while acknowledging that DiPina had already served some of it. DiPina has not pointed to any other evidence (i.e. documentation from the Probation Department) that he has been doubly sentenced.
-11- 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.
Under certain circumstances, offenses committed prior to age
eighteen are counted under § 4A1.1. See id., cmt. n.2 (citing
§ 4A1.2(d)). As to those offenses, § 4A1.2(d)(2) instructs the
sentencing court to
(A) add 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; [and] (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)(2).
Section 4A1.1 refers us to § 4A1.2(a) for the
definition of the term "prior sentence":
(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.
-12- U.S.S.G. § 4A1.2(a)(1). Certain prior sentences, however, "are
not counted or are counted only under certain conditions." §
4A1.1, cmt. n.3. Of relevance here is the "diversionary
disposition," which "is counted only where there is a finding or
admission of guilt in a judicial proceeding." Id. The
commentary references "Diversionary Dispositions," § 4A1.2(f),
which provides:
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) (emphasis added).
III.
In reviewing a sentence under the guidelines, we
determine the applicability of each guideline to a particular
case de novo. See United States v. Cali, 87 F.3d 571, 575 (1st
Cir. 1996). We review the district court's factual
determinations for clear error, giving "due deference to the
district court’s application of the guidelines to the facts."
Id. (internal quotation marks omitted).
On appeal, DiPina asserts several points: (1) the
court erroneously concluded that his juvenile dispositions were
-13- not diversionary within the meaning of § 4A1.2(f); (2) the court
erroneously determined that his admission of sufficient facts in
Rhode Island Family Court was tantamount to a guilty plea; (3)
the court violated Fed. R. Crim. P. 32 at the resentencing; (4)
the court incorrectly calculated DiPina's criminal history
score; and (5) the judge was biased.
A. "Diversionary disposition"
First, DiPina contends that his juvenile court
proceedings were diversionary dispositions within the meaning of
U.S.S.G. § 4A1.2(f). In our earlier decision in this case, we
noted:
[T]he 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.
DiPina, 178 F.3d at 78 (citing § 4A1.2(f)). Although this court
has not assembled a comprehensive definition of a diversionary
disposition, our cases provide some examples. In United States
v. Morillo, 178 F.3d 18, 21 (1st Cir. 1999), we held that a
"continuance without a finding," based on a defendant's
admission of facts sufficient for a guilty finding on charges of
violating a domestic violence restraining order and threatening
to commit a crime, was diversionary within the meaning of the
-14- guidelines. See also United States v. Nicholas, 133 F.3d 133,
133-35 (1st Cir. 1998). We also affirmed the application of the
diversionary disposition label to an "'adjudication withheld'
battery conviction." See United States v. Cadavid, 192 F.3d
230, 235 (1st Cir. 1999). In these cases, either the
adjudication or the sentence was deferred in some way; in none
did the court immediately impose a sentence of imprisonment.
This is consistent with case law from other circuits.
In United States v. Shazier, 179 F.3d 1317, 1319 (11th Cir.
1999), the Eleventh Circuit concluded that there was no
diversionary disposition where the defendant had served a
six-month prison term: "Although not specifically defined, it
is clear that [§ 4A1.2(f)] does not apply to sentences where
confinement is imposed and served." Id. In United States v.
Crawford, 83 F.3d 964, 966 (8th Cir. 1996), the Eighth Circuit
rejected the defendant’s contention that his juvenile sentence
for assault constituted a diversionary disposition, on the
ground that he "had completed [his] probation and community
service, and thus discharged the sentence imposed." Id.
Without adopting wholesale the district court's
definition of “diversionary,” see note 3, supra, we conclude
that there was no error in the determination that the heroin
disposition was not diversionary. There was no deferral in the
-15- prosecution, adjudication, or sentencing on DiPina's heroin
charges and DiPina was sentenced to imprisonment. The family
court entered a finding that DiPina was "delinquent" and
immediately sentenced him to an eighteen-month term in the
custody of RITS, of which at least seven months were actually
served. RITS, the district court found, was a prison in which
serious juvenile offenders were incarcerated. Cf. United States
v. Unger, 915 F.2d 759, 763 (1st Cir. 1990) (assuming that a
RITS sentence constituted "imprisonment"). This disposition
does not, therefore, resemble cases in which courts have found
diversion within the meaning of § 4A1.2(f) on the ground that
the adjudication was somehow withheld, stayed, or deferred. See
Morillo, 178 F.3d at 20; see also United States v. Amster, 193
F.3d 779, 779-80 (3d Cir. 1999) (diversionary disposition where
defendant pled nolo contendere, "adjudication was withheld," and
case was dismissed after defendant complied with certain
conditions); United States v. Bagheri, 999 F.2d 80, 82-83 (4th
Cir. 1993) (diversionary disposition where court imposed
"probation without entry of judgment"); United States v.
Rockman, 993 F.2d 811, 812-14 (11th Cir. 1993) (diversionary
disposition where defendant pled nolo contendere and "the state
court withheld adjudication of guilt"); United States v. Frank,
932 F.2d 700, 701 (8th Cir. 1991) (diversionary disposition
-16- where defendant pled guilty and "the state court stayed the
adjudication" and imposed probation).
DiPina argues that he was found "delinquent" in the
heroin disposition, which is not the same as finding that he
committed the crime.5 Assuming this is true, it does not lead
to the conclusion that dispositions involving delinquency
findings are necessarily diversionary. Rhode Island has
specific provisions for the diversion of juvenile offenders,
which apparently were not applied to DiPina's case. R.I. Gen.
Laws § 42-72-33(a) describes a "youth diversion program" that
applies to certain first-time offenders between the ages of nine
and seventeen "who may be the subject of a family court
petition." Under this statute, "[r]eferrals to the youth
diversionary program shall be served for a maximum of ninety
(90) days" and certain services shall be rendered to the
offenders. Id.; see also R.I. Gen. Laws § 14-1-32(4). The
existence of these provisions suggests that Rhode Island does
5 Rhode Island defines "delinquent" as "any child -- who has committed any offense which, if committed by an adult, would constitute a felony . . ." R.I. Gen. Laws § 14-1-3(5). It is true that Rhode Island law distinguishes between a finding of juvenile delinquency and a criminal conviction. See In re Bernard H., 557 A.2d 864, 867 (R.I. 1989); In re John D., 479 A.2d 1173, 1176 (R.I. 1984). For purposes of calculating criminal history, however, the sentencing guidelines are concerned not with prior convictions, but with "prior sentences." See U.S.S.G. §§ 4A1.1, 4A1.2(a).
-17- not regard an adjudication of delinquency resulting in
incarceration in RITS as diversionary.
More importantly, it is federal law, not Rhode Island
law, that controls the analysis of whether the heroin
disposition was diversionary. See Unger, 915 F.2d at 762-63.
Accordingly, we focus on the substantive import of the
disposition, not the state-law terminology describing it. See
id.; see also United States v. Kirby, 893 F.2d 867, 868 (6th
Cir. 1990) (fact that defendant had been adjudicated delinquent
as a minor could be considered in determining his criminal
history category under sentencing guidelines, even though
adjudication of delinquency by a juvenile court could not be
deemed a conviction under state law). As discussed supra, there
was no deferral or diversion of DiPina’s adjudication or
sentencing on the heroin charges; the finding of delinquency
does not change the result.
DiPina also contends that the judge erred in not
considering whether his other juvenile dispositions – for
disorderly conduct and tampering with a motor vehicle – were
diversionary. Such analysis was not necessary, however, as the
heroin disposition alone raised his criminal history points to
a level at which the safety valve provision was unavailable.
See DiPina, 178 F.3d at 75 ("it would appear that counting one
-18- 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").
B. Tantamount to guilty plea
Second, DiPina challenges the district court’s
conclusion that his admission of sufficient facts in the heroin
disposition was tantamount to a guilty plea. In our earlier
opinion, we said that in order to so conclude, "the court must
have found that the defendant has confessed to certain events or
that other evidence proves such events, and that the events
constituted a crime." DiPina, 178 F.3d at 75 (internal
quotation marks omitted). Specifically, we recommended that the
district court examine factors such as whether the prosecutor
recited what the state would prove if the case were to proceed
to trial; whether the defendant accepted the prosecutor's
version of the events; and whether the family court judge
determined that the admitted facts, if proved, would constitute
an offense. Id. at 74. If these factors were present, the
admission of sufficient facts would likely be tantamount to a
guilty or nolo plea. If, on the other hand, "the prosecutor and
the defendant or his counsel . . . [did] little more than tell
the judge that the parties have agreed to dispose of the matter
-19- by a continuance, admission to sufficient facts, and a treatment
program” it would not appear that the defendant had admitted to
a crime. Id.
The record permits no conclusion other than that
DiPina’s admission of sufficient facts on the heroin charges,
given what transpired at the hearing, effectively constituted a
confession to events that constituted a crime. See id. at 75.
During the family court hearing, the prosecutor recited what the
state would prove if the matter were to proceed to trial: that
DiPina "did deliver unlawfully heroin to an undercover officer
from the Providence Police on July 1st, July 7th, July 8th and
July 14th of [1992]." DiPina expressly and without
qualification admitted those facts. Furthermore, he affirmed in
the RFA that he would be "admitting sufficient facts to
substantiate the offense(s) which [have] been brought against me
in the cases to which these pleas relate." Finally, the family
court determined that DiPina's conduct constituted an offense
under Rhode Island law, R.I. Gen. Laws § 21-28-4.01(2)(a).
Hence, we conclude that the district court correctly determined
that the heroin disposition was equivalent to a guilty plea for
sentencing purposes. We do not hold that a simple "admission to
sufficient facts" is automatically enough in the absence of
safeguards such as occurred here.
-20- DiPina complains that the family court failed to inform
him of all of the rights enumerated in Fed. R. Crim. P. 11.
Nowhere in our earlier opinion, however, did we suggest that
compliance with Rule 11 is a prerequisite to determining that an
admission of sufficient facts is tantamount to a guilty or nolo
contendere plea, and DiPina cites no authority to support his
position. We have, in fact, previously stated that any sequence
that gives "reasonable assurance that the defendant had
confessed to certain events and that the events constituted a
crime . . . would make the admission effectively an admission of
guilt under the guidelines." United States v. Roberts, 39 F.3d
10, 13 (1st Cir. 1994). As it happens, the record supports the
conclusion that the family court substantially complied with
Rule 11 in the heroin disposition. The court effectively
informed DiPina of the nature of the charges against him; the
maximum possible penalty; his right to contest the charges and
choose to proceed to trial; his right to assistance of counsel;
his right against compelled self-incrimination; that by entering
the plea he was waiving his right to trial; and that he was
waiving his right to appeal. See Fed. R. Crim. P. 11(c).
Moreover, the family court addressed DiPina and ascertained that
he understood the rights he was giving up, that the plea was
-21- entered voluntarily and was based on sufficient facts. See Fed.
R. Crim. P. 11(d).
C. Fed. R. Crim. P. 32
DiPina contends that the district court violated Fed.
R. Crim. P. 32 in not providing him an opportunity for
allocution before reimposing the sentence. This court has held,
however, that Rule 32 does not require that opportunity where
the court merely reimposes a sentence identical to one imposed
before, as long as the rationale for the sentence is the same.
See United States v. Garafano, 61 F.3d 113, 116-17 (1st Cir.
1995). Here, the district court’s rationale was identical to
that of the original sentence: that DiPina was ineligible for
the safety valve provision due to a juvenile disposition that
increased his criminal history points above one.
DiPina also asserts that the court erred in failing to
verify whether DiPina and his counsel read and discussed the PSR
and in failing to determine whether they had any objections to
it. Nothing in the record indicates, however, that a new PSR
was issued prior to the resentencing. See id. at 117. Hence,
the court was under no obligation to revisit the issue.6 See id.
6 To the extent that DiPina additionally argues that the court erred in failing to inform him of his right to appeal at the resentencing, his timely appeal makes clear that any such error was harmless. See Pequero v. United States, 526 U.S. 23, 24 (1999).
-22- D. Calculation error
DiPina contends that the court incorrectly calculated
his criminal history points at resentencing. He argues that the
PSR erroneously stated that he had pled nolo contendere to the
resisting arrest charge, while in fact he had admitted
sufficient facts.7 Therefore, he contends, this disposition
should not yield any criminal history points.
At his original sentencing, DiPina did not dispute that
the charge of resisting arrest counted toward his criminal
history. Even assuming arguendo that DiPina may raise this
issue now, it cannot change the outcome. The heroin disposition
alone raises DiPina's criminal history points to two. As we
have said, having more than one point makes him ineligible for
the safety valve. Hence, we need not consider any of DiPina's
other juvenile dispositions.
E. Bias
DiPina contends that the district judge exhibited bias
against him based on his remarks at the resentencing. The judge
twice characterized DiPina's legal arguments as "worthless," and
commented on his criminal conduct.8 DiPina also complains that
7He contends, moreover, that the charge was of disorderly conduct, not resisting arrest. 8The judge's comments included the following:
-23- bias was evidenced by the court's reliance on Unger despite our
statement that Unger did not control this case; its failure to
make the necessary findings of fact and rulings of law upon
remand; and its failure to comply with Rule 32.
It is unclear whether DiPina is seeking the recusal of
the district judge and reversal of the resentencing, or whether
he is simply requesting that any additional proceedings be
prospectively assigned to a different judge. It does not appear
that DiPina moved below for the judge's recusal or otherwise
raised the issue of bias, and we therefore consider it waived.
See In re Abijoe Realty Corp., 943 F.2d 121, 127 (1st Cir.
1991); United States v. Devin, 918 F.2d 280, 294 n.11 (1st Cir.
1990). Moreover, because we do not remand for any further
In fact the defendant was at one time sent to a special school in Narragansett, but he didn't learn anything from that, and he became a juvenile heroin dealer, just about as bad as you can be in the drug field. The worst of all drugs. The most addictive of all drugs. And he graduated. He graduated to becoming an adult heroin dealer. * * * * I suppose technically his supervised release was not in effect, but it certainly is going to be in effect as of now, and if he's charged with another drug offense, he'll be a violator, and we'll deal with him. * * * * The defendant is on his way to doing life on the installment plan. He's going to be in and out of prison most of the rest of his life because he is a habitual offender. He's a drug dealer, and he hasn't changed, apparently.
-24- proceedings, we need not consider assigning the matter to a
different judge in the future.
Affirmed.
-25-