United States v. Rosalio Correa

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT



                              _________________________


No. 96-2159


UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                NELSON ROSALIO CORREA,



                                Defendant, Appellant.



                              _________________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                  [Hon. George A. O'Toole, Jr., U.S. District Judge]
                                                ___________________



                              _________________________



                                        Before



                                Selya, Circuit Judge,
                                       _____________



                        Coffin and Cyr, Senior Circuit Judges.
                                        _____________________



                              _________________________



               Elizabeth  A. Lunt,  with  whom Zalkind,  Rodriguez, Lunt  &
               __________________              ____________________________

          Duncan were on brief, for appellant.
          ______

               Donald L.  Cabell,  Assistant United  States Attorney,  with
               _________________

          whom Donald K. Stern,  United States Attorney, was on  brief, for
               _______________

          appellee.



                              _________________________


May 29, 1997

                              _________________________



SELYA,  Circuit  Judge.     Defendant-appellant  Nelson
                    SELYA,  Circuit  Judge.
                            ______________



          Rosalio Correa challenges that part of his sentence which depends



          upon the district court's  allegedly erroneous computation of his



          criminal  history score.   We  first must  resolve an  issue that



          divides  the circuits.   Once  that is  behind us,  we detect  no



          miscalculation and therefore affirm the sentence.



                                          I
                                          I
                                          _



                                      Background
                                      Background
                                      __________



                    We  cull the  largely  undisputed facts  from the  plea



          colloquy,   the   presentence  investigation   report,   and  the



          transcript  of the  sentencing  hearing.   See  United States  v.
                                                     ___  _____________



          Garcia, 954 F.2d 12, 14 (1st Cir. 1992); United States v.  Dietz,
          ______                                   _____________     _____



          950 F.2d 50, 51 (1st Cir. 1991).



                    A  native  of  the Dominican  Republic,  Correa resided



          legally in  the United States  for a short  spell.  That  sojourn



          ceased on January 5,  1994, when, after having been  convicted of



          various  crimes committed between 1989 and 1993, he was deported.



          We do not chronicle the  complete compendium of Correa's criminal



          capers,  but  confine  ourselves  to conveying  the  contours  of



          certain crimes  that possess  particular  pertinence for  present



          purposes.



                    1.   The  February Offenses.   On  March 13,  1991, the
                    1.   The  February Offenses.
                         ______________________



          Commonwealth of Massachusetts issued  a criminal complaint (later



          served  by summons) which charged  Correa, then 19  years of age,



          with  three  counts of  breaking and  entering  and one  count of



          larceny.  See  Mass. Gen. Laws ch.  266,    16A, 30  (1990).  The
                    ___


2



charges arose from a spree that occurred on February 19, 1991; on



          that  date, Correa  raided three  separate automobiles  parked in



          Danvers, Massachusetts, and  absconded with ill-gotten gain  from



          one.



                    2.   The  June Offenses.   Some  months later,  Correa,
                    2.   The  June Offenses.
                         __________________



          still  19, was  charged  with  falsifying  his  age  to  purchase



          alcoholic beverages, in violation  of Mass. Gen. Laws ch.  138,  



          34A  (1991), and contributing to  the delinquency of  a child for



          buying  and  serving  alcohol  to  two  boys,  ages  12  and  15,



          respectively,  in  violation of  Mass. Gen.  Laws  ch. 119,    63



          (1993).  The infractions were alleged to have occurred on June 8,



          1991, in Beverly, Massachusetts.



                    3.  The  State Court Disposition  Hearing.  On  October
                    3.  The  State Court Disposition  Hearing.
                        _____________________________________



          28,  1992, Correa pled  guilty in a  state district  court to all



          charges  arising from  both  incidents.    With  respect  to  the



          February offenses, the court imposed a nine-month sentence on the



          three   breaking-and-entering  counts   and  filed   the  larceny



          conviction.  With respect  to the June offenses, the  court filed



          all the convictions.1



                    In due course, the  government deported Correa.  Little

                              
          ____________________



               1In  Massachusetts, after  a plea  of  guilty in  a criminal

          case, "a judge, with the consent of  the defendant, may place the

          case on file rather than impose sentence immediately."  DuPont v.
                                                                  ______

          Superior  Court, 401  Mass. 122,  123 (1987).   Although  that is
          _______________

          usually the  end of the matter,  the case thereafter  "may at any

          time be called up [by the  court] and sentence may be imposed, or

          some  other final disposition made  of it."   Marks v. Wentworth,
                                                        _____    _________

          199 Mass. 44, 45 (1908).  Hence, the  defendant's right to appeal

          is  suspended for  the length of  time that  the case  remains on

          file.  See DuPont, 401 Mass. at 123; Commonwealth v. Delgado, 367
                 ___ ______                    ____________    _______

          Mass. 432, 438 (1975).



                                          3



daunted, he reentered  the United States  unlawfully in 1995  and



          found his way to Lynn, Massachusetts.  The authorities eventually



          apprehended him  and pressed a  charge of  illegal reentry  after



          deportation.  See 8 U.S.C.   1326 (1994).  Correa  pled guilty to
                        ___



          this  accusation  in  federal  district court.    The  sentencing



          proceeding that followed comprises the cynosure of this appeal.2



                    We  set   the  stage.    In   applying  the  sentencing



          guidelines, a  nisi prius  court, among other  things, transposes



          the  defendant's criminal  past into  "criminal history  points,"



          thus  obtaining  a  "criminal   history  score"  which  yields  a



          "criminal history  category."   See United  States v.  Emery, 991
                                          ___ ______________     _____



          F.2d  907, 909-10  (1st  Cir. 1993)  (illustrating the  process).



          Since the guideline sentencing range (GSR) is derived from a grid



          and  is determined in a given case by correlating the defendant's



          criminal history  category with  his adjusted offense  level, see
                                                                        ___



          United States v.  Diaz-Villafane, 874  F.2d 43,  47-48 (1st  Cir.
          _____________     ______________



          1989), criminal  history points can profoundly  affect the length



          of a sentence.



                    This case typifies  the phenomenon.   In the course  of



          his sentencing calculations,  Judge O'Toole treated  the February



          offenses  as  comprising  one  crime  and  the  June offenses  as



          comprising another, unrelated crime.  Hence, he assigned criminal



                              
          ____________________



               2The  district  court apparently  applied the  November 1995

          edition  of the  sentencing  guidelines.   See  United States  v.
                                                     ___  _____________

          Harotunian,  920  F.2d  1040,  1041-42  &  n.2  (1st  Cir.  1990)
          __________

          (explaining  that  the  guidelines  in  effect  at  the  time  of

          sentencing control  unless ex post  facto considerations prohibit

          their use).  Thus, all references herein are to that edition.



                                          4



history  points for  each.   On  that  basis, Correa  garnered  a



          criminal history score of 7, which placed him in criminal history



          category  IV.    Had the  judge  treated  the  February and  June



          offenses as related rather  than unrelated, or had he  deemed the



          June  offenses  unworthy  of  consideration,   Correa's  criminal



          history score would  have dropped  by one point,  placing him  in



          criminal  history category  III.   At  Correa's adjusted  offense



          level (19),  the single  criminal history point  accounted for  a



          substantial  increase in his GSR (which rose from 37-46 months to



          46-57 months).  See USSG ch. 5, Pt. A (sentencing table).
                          ___



                    Having  added the disputed  criminal history  point and



          fixed  the GSR  at  46-57 months,  the  judge then  accepted  the



          government's  recommendation, incorporated in the plea agreement,



          that  Correa be sentenced at  the nadir of  the applicable range.



          Consequently,   the  court   imposed  a   46-month  incarcerative



          sentence.  This  appeal ensued.   In it,  the appellant  contends



          that  the  district court  erred  in  adding  the extra  criminal



          history  point.    He makes  two  arguments  in  support of  this



          contention.  We treat these arguments sequentially.



                                          II
                                          II
                                          __



                                    Related Cases
                                    Related Cases
                                    _____________



                    The  guidelines  require  the  assessment  of  criminal



          history  points for  "each prior  sentence."   USSG  4A1.1.   But



          there are  exceptions.   One such exception  authorizes sentences



          imposed in  what the Sentencing Commission  calls "related cases"



          to  be  treated as  a single  sentence.   See  USSG  4A1.2(a)(2).
                                                    ___


5



Insofar as  pertinent here, sentences are  considered related "if



          they  resulted from  offenses that  . .  . were  consolidated for



          trial  or sentencing."    Id., comment.  (n.3).   At  sentencing,
                                    ___



          Correa argued unsuccessfully that  the February and June offenses



          fell  within this safe  harbor (and, therefore,  should be deemed



          related) because  the state court had in effect consolidated them



          for sentencing.   Judge O'Toole  rejected the  notion that  these



          disparate offenses constituted  a set of related cases.3   Correa



          now presses this argument on appeal.



                    The standard of review in sentencing appeals ordinarily



          is deferential.  See 18 U.S.C.    3742(e) (1994); see also Dietz,
                           ___                              ___ ____ _____



          950 F.2d  at 52.  Thus,  "where there is more  than one plausible



          view of  the circumstances,  the sentencing court's  choice among



          supportable  alternatives"  is  not   clearly  erroneous  and   a



          reviewing tribunal cannot disturb it.  United States v. Ruiz, 905
                                                 _____________    ____



          F.2d 499,  508 (1st Cir. 1990).   However, to the  extent that an



          alleged error  involves the district court's  interpretation of a



          sentencing guideline,  it presents  a question of  law warranting

                              
          ____________________



               3In so ruling, the lower court relied on an application note

          instructing that "[p]rior sentences are not considered related if

          they  were  for offenses  that were  separated by  an intervening

          arrest (i.e.,  the defendant is  arrested for  the first  offense
                  ____

          prior to committing the second offense)."  USSG   4A1.2, comment.

          (n.3).  The court repudiated United States v. Joseph, 50 F.3d 401
                                       _____________    ______

          (7th  Cir.), cert. denied, 116  S. Ct. 139  (1995), and impliedly
                       _____ ______

          found that the summons Correa received for the February offenses,

          which had  been served  before  he committed  the June  offenses,

          constituted the functional  equivalent of an intervening  arrest.

          While this  holding seems  problematic, we  need not  resolve the

          uncertainty.   Here, the  record plainly presents  an alternative

          ground for affirmance, and we are free to use that ground in lieu

          of the trial court's  rationale.  See Hachikian v.  FDIC, 96 F.3d
                                            ___ _________     ____

          502, 504 (1st Cir. 1996).



                                          6



plenary review.  See  United States v.  Santiago, 83 F.3d 20,  26
                           ___  _____________     ________



          (1st Cir. 1996); United States v. St. Cyr, 977 F.2d 698, 701 (1st
                           _____________    _______



          Cir. 1992).  So it is here.



                    In United  States v.  Elwell, 984  F.2d 1289 (1st  Cir.
                       ______________     ______



          1993),  we intimated that  a mere coincidence  in timing, without



          more, is not enough  to justify treating convictions that  do not



          possess  common  antecedents  as  having  been  consolidated  for



          purposes of sentencing.   See  id. at 1296  n.7 (explaining  that
                                    ___  ___



          such convictions cannot  be "deemed `constructively' consolidated



          because  of .  . .  [a] plea  bargain and  concurrent sentences")



          (dictum).    We now  transform  the  Elwell adumbration  into  an
                                               ______



          express  holding:   at  least in  respect  to offenses  that  are



          temporally  and  factually  distinct  (that  is,  offenses  which



          occurred  on different dates  and which did not  arise out of the



          same course  of conduct),  charges based  thereon  should not  be



          regarded as having been  consolidated (and, therefore, "related")



          unless the original  sentencing court entered an actual  order of



          consolidation  or  there is  some  other  persuasive indicium  of



          formal  consolidation apparent on the face of the record which is



          sufficient to  indicate that the offenses  have some relationship



          to one  another  beyond  the  sheer fortuity  that  sentence  was



          imposed by the same judge at the same time.



                    In  so holding, we align ourselves with a number of our



          sister  circuits  which  have  reached  a  substantially  similar



          conclusion.  See, e.g., United States v. Patasnik, 89 F.3d 63, 74
                       ___  ____  _____________    ________



          (2d  Cir. 1996); Green v. United States, 65 F.3d 546, 548-49 (6th
                           _____    _____________


7



Cir. 1995), cert. denied, 116 S. Ct. 826 (1996); United States v.
                      _____ ______                         _____________



          Allen,  50 F.3d 294, 298-99 (4th Cir.),  cert. denied, 115 S. Ct.
          _____                                    _____ ______



          2630  (1995); United  States  v. Alberty,  40 F.3d  1132, 1134-35
                        ______________     _______



          (10th  Cir. 1994), cert. denied,  115 S. Ct.  1416 (1995); United
                             _____ ______                            ______



          States  v.  Klein, 13  F.3d 1182,  1185  (8th Cir.  1994); United
          ______      _____                                          ______



          States v. Garcia, 962 F.2d 479, 483 (5th Cir. 1992).  By the same
          ______    ______



          token, we reject the  minority view embodied in United  States v.
                                                          ______________



          Smith,  991 F.2d 1468, 1473 (9th Cir. 1993) (envisioning "no need
          _____



          for  a formal consolidation order for cases to be `related' under



          section 4A1.2").



                    We  are cognizant  that some  may see  insistence on  a



          formal  indicium of consolidation, such  as an order  or a docket



          entry, as  arbitrary.   But judicial  inquiry into a  defendant's



          criminal  past  for  sentencing  purposes,   properly  conceived,



          requires  only a  snapshot of  the surface, not  an archeological



          dig.   Thus,  when  a  federal court  is  obliged  to tabulate  a



          defendant's  criminal  history  score  for  sentencing  purposes,



          limiting  the  requisite  inquiry  to the  formal  record     the



          indictment, the  docket entries, the judgment  of conviction, and



          the like   strikes the right balance.  Moreover, it does so  in a



          manner that  supplies needed  uniformity while husbanding  scarce



          judicial resources.



                    This  approach also is in keeping with the way in which



          we have treated  analogous matters.   After all,  when a  federal



          court  looks  to  a prior  state  conviction  in formulating  its



          sentencing  calculus,  the  court  most  often  characterizes the


8



previous conviction  by means  of a formal  categorical approach,



          restricting its  examination to  the legislature's  definition of



          the  crime.  See,  e.g., Taylor v.  United States,  495 U.S. 575,
                       ___   ____  ______     _____________



          600-02  (1990); United States v.  DeLuca, 17 F.3d  6, 8 (1st Cir.
                          _____________     ______



          1994);  United States  v. De  Jesus, 984  F.2d 21,  23 (1st  Cir.
                  _____________     _________



          1993).    If the  legislature's  definition  provides an  inexact



          construct, however, the court commonly bases its characterization



          of the previous conviction  on what is readily apparent  from the



          formal documents  in the case,  without delving more  deeply into



          the  actual circumstances of the offense.  See, e.g., Taylor, 495
                                                     ___  ____  ______



          U.S. at  602 (permitting a  sentencing court, when  a categorical



          approach  fails,  to  consider   the  charging  papers  and  jury



          instructions to  ascertain the  contours of the  particular prior



          offense); United States v. Winter, 22 F.3d 15, 19 (1st Cir. 1994)
                    _____________    ______



          (similar); United  States v. Fiore,  983 F.2d 1,  3-4 & n.3  (1st
                     ______________    _____



          Cir. 1992) (similar).



                    We  are  not disposed  to  deviate  from this  salutary



          principle in  interpreting  the "related  case"  guideline,  USSG



           4A1.2(a)(2).    Were  we  to  do  so,  we  would  make  criminal



          sentencing   already  an operose  task under the  guidelines    a



          more   cumbersome  and   time-consuming   endeavor  with   little



          corresponding benefit.   Criminal  history, by  definition, deals



          with bygone events which  often happened in the distant  past, or



          in a remote jurisdiction,  or both.  Requiring a federal judge to



          go  behind the  formal record  and excavate  the details  of what



          transpired  in  each instance  would  impose  an onerous  burden,


9



freighted with unusual evidentiary difficulties.  We think that a



          categorical  rule, analogous  to  that sponsored  by the  Supreme



          Court in Taylor, better serves the interests of justice.
                   ______



                    In the instant  case, the record  is pellucid that  the



          state  court  judge  never  entered an  order  consolidating  the



          complaints, which  embodied the  February and June  offenses, for



          sentencing or  for any other purpose.  To the exact contrary, the



          complaints embodying these two sets of offenses were at all times



          handled under separate docket numbers, and there is no indication



          that  the state  court  judge ever  gave  a moment's  thought  to



          whether consolidation was (or was  not) desirable.  Moreover, the



          appellant concedes that the offenses occurred in different places



          at different  times  and  that they  arose  in  widely  divergent



          factual contexts.  Last, but  not least, this is not a  situation



          in which  the court  of original  jurisdiction  imposed a  single



          sentence spanning a  series of  discrete offenses.   Rather,  the



          court  imposed  a prison  sentence  on  the breaking-and-entering



          convictions (the main component of the February offenses) but did



          not include the  convictions on the June offenses as  part of the



          underpinning for that  sentence.  Instead, the  court filed those



          charges, in effect  reserving the right to  call up the  file and



          impose a sentence at a future date.  See supra note 1.
                                               ___ _____



                    We  will not  paint the  lily.   Because there  were no



          formal indicia  of consolidation, the February  offenses were not



          "related"  to the  June offenses  under a  proper reading  of the



          federal sentencing guidelines.  Hence, the appellant's  principal


10



assignment of error fails.



                                         III
                                         III
                                         ___



                               Juvenile Status Offenses
                               Juvenile Status Offenses
                               ________________________



                    The appellant's fallback position  is that, even if the



          June offenses are not  "related" to the February offenses  in the



          requisite  sense, they  nonetheless are juvenile  status offenses



          and thus not countable  in compiling his criminal  history score.



          See USSG   4A1.2(c) (ordaining  that the sentencing  court should
          ___



          "never count  . . .  [j]uvenile status offenses"  when tabulating



          criminal  history  points).   The  district  court rejected  this



          asseveration.  So do we.



                    The  sentencing  guidelines  do  not  define  the  term



          "juvenile status offense,"  although they offer  illustrations of



          crimes which,  like juvenile  status offenses, are  excludable in



          computing  a  defendant's  criminal  history  score.    See  USSG
                                                                  ___



           4A1.2(c)(2).   In determining  whether a prior  conviction falls



          within  the  ambit of  section 4A1.2(c)(2),  courts traditionally



          "look  to the substance of the underlying state offense."  United
                                                                     ______



          States v.  Unger, 915 F.2d 759,  763 (1st Cir. 1990).   Moreover,
          ______     _____



          courts  can derive some guidance from a mirror image provision in



          the  guidelines  which  encourages  the  assignment  of  criminal



          history points  for  a  crime committed  by  a  defendant  before



          reaching the  age of 18 if he or she perpetrated the crime within



          the five-year period immediately  preceding the occurrence of the



          offense of conviction.  See USSG   4A1.2(d)(2).  This provision's
                                  ___



          primary purpose is to promote points for past crimes that predict


11



criminal proclivity.



                    Considering   together  the  caselaw   and  the  actual



          guideline  provisions, we  conclude  that a  crime constitutes  a



          juvenile status offense only if three elements coalesce:  (1) the



          defendant  committed the crime  as a  juvenile, see  USSG  4A1.2,
                                                          ___



          comment. (n.7); (2) the conduct would have been lawful if engaged



          in by  an adult, see United  States v. Ward, 71  F.3d 262, 263-64
                           ___ ______________    ____



          (7th Cir. 1995);  and (3) the offense is not  serious, see United
                                                                 ___ ______



          States v.  Hardeman, 933 F.2d 278, 281-83  (5th Cir. 1991).  When
          ______     ________



          all  is said and done, this third element, which necessitates the



          appraisal of  gravity for  a given  crime, is  quintessentially a



          judgment  call.   Still, the  illustrations of  exempted offenses



          supplied   by   the   Sentencing   Commission,   e.g.,   truancy,



          hitchhiking, loitering, vagrancy, and minor  traffic infractions,



          USSG  4A1.2(c)(2),  furnish a  valid point  of  comparison.   The



          enumerated offenses all  possess a  bland quality  that helps  to



          distinguish  them  from  more  substantial transgressions:    for



          example, one  common characteristic is that  they provide little,



          if  any, indication  of a person's  proclivity to  commit future,



          more serious crimes.



                    In applying this paradigm to the June offenses, we note



          first  that either of the two component crimes   falsifying one's



          age  to purchase alcohol and contributing to the delinquency of a



          child    is, if not an exempted offense, independently sufficient



          to warrant the bestowal of the challenged criminal history point.



          Since  contributing to the delinquency of a child is arguably the


12



more weighty of the crimes, we focus exclusively on it.



                    The  appellant flunks  the first  segment of  the test:



          the victims may have been juveniles, but in  ascertaining whether
              _______



          a  crime is  (or is  not) a  juvenile status  offense, it  is the



          perpetrator's age,  not  the victim's  age,  that matters     and



          Correa was 19 years old when he committed the  act.  Accordingly,



          he was not a juvenile.  See USSG  4A1.2, comment. (n.7) (defining
                                  ___



          a juvenile for this purpose as a person under the age of 18).  He



          also fails  to satisfy the  second requirement:   contributing to



          the  delinquency  of   a  child  is   conduct  which  state   law



          criminalizes regardless of the perpetrator's age.  See Mass. Gen.
                                         _____________       ___



          Laws ch. 119,  63.



                    Since the appellant's  argument depends on  his ability



          to establish three  factors, and  the first two  are lacking,  we



          need  go no further.4   It is abundantly  clear that the district



          court did  not err either in  declining to classify the  crime of



          contributing to the delinquency  of a child as a  juvenile status



          offense or in assessing an extra criminal history point for it.


Affirmed.
          Affirmed.
          ________


____________________



               4Because the  appellant's argument  stalls at the  first two

          stages of the test, we need not decide  whether the offense might

          be  written off either as youthful folly or as lacking predictive

          value vis- -vis  future lawlessness (and,  therefore, pass muster

          at the third stage of the test).



                                          13