United States v. Fraser

388 F.3d 371, 2004 U.S. App. LEXIS 23490, 2004 WL 2537410
Court of Appeals for the First Circuit·Decided November 10, 2004·No. No. 04-1100·Published·Cited by 7 cases

Opinion

PER CURIAM.

After Gregory Fraser pleaded guilty to possessing stolen firearms, in violation of 18 U.S.C. § 922(j), he was sentenced to 54 months’ imprisonment. In this appeal from that sentence, Fraser argues that the district court erred in counting a prior state-court continuance without a finding in calculating his base offense level and his criminal history score under the federal Sentencing Guidelines. In addition, in a supplemental brief, he argues that, under the Supreme Court’s recent decision in Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), he is entitled to have his sentence recalculated without reliance on two factors — the prior continuance without a finding and the involvement of 29 guns in the present offense — that were neither admitted by him nor proved to a jury beyond a reasonable doubt. For the reasons discussed below, we affirm the sentence.

DISCUSSION

A. Use of State-Court Continuance Without a Finding in Computing Fraser’s Sentence Under the Guidelines

In calculating Fraser’s sentence under the Guidelines, the district court used Fraser’s state-court continuance without a finding in three ways — in setting his base offense level at 20 (based on a [374]*374“prior conviction”) and in giving him one criminal history point for a “prior sentence” and two criminal history points for being under a “criminal justice sentence” when he committed the present federal offense.1 In reviewing those calculations, this court accepts the district court’s factual findings unless they are clearly erroneous and gives due deference to the district court’s application of the Guidelines to those facts. 18 U.S.C. § 3742(e); United States v. DiPina, 230 F.3d 477, 482 (1st Cir.2000). For the reasons discussed below, we conclude that each of those uses of the continuance without a finding was consistent with the Guidelines.

1. Base Offense Level

Under section 2K2.1(a)(4)(A), the base offense level for violating 18 U.S.C. § 922© is 20 where the defendant has a prior felony conviction for a crime of violence.2 For that purpose, the Guidelines define “conviction” as an “adult conviction,” which, for an offense committed before the defendant was 18 years old, is a conviction “classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted.” USSG § 2K2.1, comment, (n. 5). As Fraser concedes, under Massachusetts law (the law of the jurisdiction where Fraser was convicted), a 17-year-old offender is considered an adult rather than a juvenile. See Mass. Gen. Laws ch. 119, § 52. Accordingly, as Fraser further concedes and as the district court found, Fraser’s breaking-and-entering proceeding took place in adult rather than juvenile court.

The only remaining question is, therefore, whether the disposition of that proceeding was a “conviction” within the meaning of section 2K2.1(a)(4)(A). The answer to that question turns on whether the disposition is countable for purposes of awarding a criminal history point under section 4A1.1. See USSG § 2K2.1 comment. (n. 15). Because, as discussed immediately below, Fraser’s previous continuance without a finding is countable for purposes of calculating his criminal history category, it is also usable in calculating his base offense level.

2. Criminal History Point for “Prior Sentence”

For purposes of awarding criminal history points under section 4Al.l(c), a disposition is countable if it is a “prior sentence,” which is defined to mean “any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere,” USSG § 4A1.2(a)(l), even where “the imposition ... of sentence was totally suspended or stayed,” USSG § 4A1.2(a)(3). Applying that definition, we previously have held that “a continuance without a finding, entered as a result of an admission to facts sufficient to warrant a finding of guilt under Massachusetts law, is counted as a sentence for purposes of calculating criminal history points in sentencing.” United States v. Dubovsky, 279 F.3d 5, 8 (1st Cir.2002) (citing United States v. Morillo, 178 F.3d 18, 21 (1st Cir.1999)); see also United States v. Reyes, 386 F.3d 332, 2004 WL 2348554, *2 (1st Cir. Oct.20, 2004).

[375]*375Under that definition, even if the defendant was under 18 when he committed the offense in question, the sentence imposed for that offense, by either a juvenile or an adult court, counts as a “prior sentence” as long as the sentence was imposed within five years of the commission of the offense for which the defendant is presently being sentenced. USSG § 4A1.2(d); id., comment. (n.7). Here, the state-court continuance without a finding was imposed only a few months before Fraser committed the present firearms-possession offense and is therefore countable as a “prior sentence” under section 4Al.l(c) regardless of his age.

Nor does it matter that the state-court disposition was diversionary in nature. Under section 4A1.2(f), “[a] diversionary disposition resulting from ... an admission of guilt ... in a judicial proceeding is counted as a sentence under § 4Al.l(c) even if a conviction was not formally entered.”3 An admission to sufficient facts under Massachusetts procedure is deemed “an admission of guilt” for this purpose. United States v. Nicholas, 133 F.3d 133, 135 (1st Cir.1998) (citing United States v. Roberts, 39 F.3d 10, 13 (1st Cir.1994)). The exception to this rule for “a diversion from juvenile court,” which is not counted, USSG § 4A1.2(f), is inapplicable here, since the disposition was from adult, not juvenile, court.

Fraser’s final argument — that the procedures followed by the state court in accepting his admission to sufficient facts were deficient in various respects and that the resulting disposition should therefore not be counted for sentencing purposes — is also unavailing. Where, as here, “the district court determined that [Fraser] had admitted guilt in open court and that there was a judicial determination by the state court judge of facts sufficient to support a finding of guilt[,][t]hat is sufficient under the Guidelines.” Nicholas, 133 F.3d at 137; see also DiPina, 230 F.3d at 485. While the government has the burden of establishing those basic facts, once that is done, the burden shifts to the defendant to offer evidence that what actually happened did not constitute an admission of guilt. Nicholas, 133 F.3d at 136.

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United States v. Fraser, 388 F.3d 371, 2004 U.S. App. LEXIS 23490, 2004 WL 2537410 (1st Cir. 2004).

388 F.3d 371 (United States v. Fraser) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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