
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1020                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  PETER B. ROBERTS,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                    ______________                                 ____________________            Diana L.  Maldonado, Assistant Federal  Defender, Federal Defender            ___________________        Office, with whom Owen S. Walker, Chief Federal Defender, was on brief                          ______________        for appellant.            Jeanne M. Kempthorne, Assistant United States Attorney, with  whom            ____________________        Donald K.  Stern, United States Attorney, was  on brief for the United        ________________        States.                                 ____________________                                   October 27, 1994                                 ____________________                 BOUDIN, Circuit Judge.  Peter C.  Roberts pled guilty on                         _____________            September  24, 1993,  to a  16-count indictment  charging him            with 15  counts of theft of  mail by postal employee  and one            count of access device fraud.  18 U.S.C.    1709, 1029(a)(2).            A sentencing  hearing was conducted and  sentence was imposed            on December 17,  1993.   In the  course of  the hearing,  the            district court computed  the total offense  level as 12,  see                                                                      ___            U.S.S.G.     2B1.1,  2F1.1, and  found  that Roberts  was  in            criminal history category II.   The court imposed a  15-month            sentence of  imprisonment, which  is midway in  the guideline            range of 12 to 18  months.  On this appeal, Roberts  does not            contest  the total  offense level  assigned to  him but  does            dispute his criminal history category.                 The district court determined Roberts'  criminal history            category by assigning Roberts  one criminal history point for            a  1992 state court guilty plea to charges of embezzlement by            a fiduciary and larceny.  See U.S.S.G.    4A1.1(c).  A second                                      ___            point was  assigned because in 1986, Roberts had been charged            in Massachusetts  state court with operating  a motor vehicle            under  the influence  of alcohol  and operating  to endanger;            both  charges were  continued by  the state  court without  a            finding,  upon  Roberts'  admission  to sufficient  facts  to            sustain  a finding  of guilt.   The  second criminal  history            point was sufficient to  push Roberts into category II.   See                                                                      ___            U.S.S.G. Sentencing Table.                                           -2-                                         -2-                 The  main  dispute on  this  appeal  centers around  the            following guidelines  provision  contained in  the  paragraph            that  provides  definitions  and instructions  for  computing            criminal history:                 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).  The issue is how this provision applies            to  the disposition of the charges against Roberts in 1986 by            a  continuance  based on  admission  to  sufficient facts  to            sustain a finding of guilt.                   The government  has maintained throughout  that Roberts'            admission  to  sufficient   facts  led  to   a  "diversionary            disposition  resulting from a finding or admission of guilt .            . . in a judicial proceeding,"  U.S.S.G.   4A 1.2(f), and the            district court  agreed.  Roberts, supported  by United States                                                            _____________            v. Kozinski, 16 F.3d 795 (7th Cir. 1994), says that there was               ________            no  finding or admission of  "guilt," so that  the outcome is            governed by the first sentence of the quoted paragraph or, in            any event, does not fall within  the second.1  We regard  the                                            ____________________                 1Roberts  also  argued   in  the  district  court   that            operating to endanger is  an offense for which no  points are            awarded  even if there is an admission of guilt, see U.S.S.G.                                                             ___               4A1.2(c)(1), but Roberts agrees that  this does not matter            because  driving  under the  influence  is  counted where  an            admission of guilt  occurs.  See  U.S.S.G.   4A1.2,  comment.                                         ___                                         -3-                                         -3-            issue  as a  close  one  that,  for  reasons  shortly  to  be            explained, cannot be settled definitively on this record.                 The  Massachusetts  practice  that  gave  rise  to   the            disputed disposition  is a  composite of procedures  that has            been  modified  several  times.2     As  matters  stood  when            Roberts' case was considered  in 1986, Massachusetts afforded            a  defendant facing charges in  the state district court with            several options;  one of these options  allowed the defendant            to  obtain  a bench  trial ("the  first  tier") and  then, if            unhappy with the outcome, to appeal to obtain a de novo trial                                                            _______            in the  same  court before  a  six-person jury  ("the  second            tier").  See Commonwealth v.  Duquette, 438 N.E.2d 334 (Mass.                     ___ ____________     ________            1982).  At the first tier, the defendant could also choose to            forego  a bench  trial  and advance  to  the second  tier  by            admitting to sufficient facts to warrant a finding  of guilt.            Duquette, 438 N.E.2d at 338.             ________                 It appears that often  in such instances a case  was not            advanced to the second  tier but instead continued without  a            formal finding of  guilt or innocence.   In conjunction  with            the  continuance,  the  court  imposed  conditions,  such  as            supervision by  a probation  officer, restitution, or  (as in                                            ____________________            (n.5).                 2The  procedure  was  altered substantially  in  1973 by            statute  and  again by  case law  in  1982.   Commonwealth v.                                                          ____________            Duquette,   438   N.E.2d   334  (Mass.   1982).      Recently            ________            Massachusetts  has abolished  the  de novo  system.   Compare                                               _______            _______            Mass. Gen. L. ch. 278,   18 (1981) with id. (1994 supp.).                                               ____ ___                                         -4-                                         -4-            this  case)  submission   to  an  abuse  treatment   program.            Technically, where  a case  was continued without  a finding,            there was  no final disposition  and therefore no  appeal, de                                                                       __            novo or otherwise.3   On the  other hand, it  appears that  a            ____            dissatisfied defendant could insist  on a formal  disposition            and exercise his or  her right to a trial de  novo, expunging                                                      ________            the first-tier  disposition.   See Mann v.  Commonwealth, 271                                           ___ ____     ____________            N.E.2d 331, 332-33 (Mass. 1971).                 Roberts' argument in this case starts with the guideline            language   imposing   criminal   history   points   where   a            diversionary disposition results from "a finding or admission            of guilt . . . in  a judicial proceeding . . . ."  U.S.S.G.              4A1.2(f).   There is no  evidence that the  judge in Roberts'            1986 proceeding made  a formal  finding of guilt.   There  is            also no indication that Roberts made an "admission  of guilt"            in the sense of pleading guilty or using the word "guilty" or            saying "yes" when asked whether he admitted his guilt.  This,            says  Roberts, means  that  under the  guideline language  no            criminal  history  points  can   be  assigned  for  the  1986            disposition.                 This literal  approach was apparently persuasive  to the            Seventh  Circuit in Kozinski, 16 F.3d at 811-12.  Under local                                ________                                            ____________________                 3Later  if the defendant  satisfied the  conditions, the            charge or  charges would be  dismissed.   This is  apparently            what happened in  Roberts' case, but the dismissal  itself is            not claimed to erase Roberts' admission.                                         -5-                                         -5-            law, an Illinois state court may defer prosecution and impose            supervision either if the defendant pleads guilty or if he or            she stipulates to  "facts supporting the charge  or a finding            of guilt."   Id. at 812.   The Seventh Circuit said summarily                         ___            that  the latter stipulation "does not in any way equate with            an admission of guilt or an adjudication of guilt" and, under            the sentencing  guidelines, it amounts to  diversion from the            judicial process "without a  finding of guilt (e.g., deferred                                                           ____            prosecution)"  for which  no criminal  history points  may be            awarded.  Id.   Compare United States v. Hines,  802 F. Supp.                      ___   _______ _____________    _____            559 (D. Mass. 1992) (reaching the opposite result).                 In  this  court,  the  government takes  the  view  that            Kozinski  was wrongly  decided,  although its  brief makes  a            ________            half-hearted attempt to distinguish the  case.  We agree that            the  phrase "admission of guilt"  does not have  so clear and            precise  a  meaning  as  to  foreclose  its  extension  to  a            defendant's  admission  to  sufficient  facts  to  warrant  a            finding of guilt.   The guideline by its  terms uses the word            "admission" and does  not require  a formal  plea of  guilty,            U.S.S.G.     4A1.2; and  the  commentary  speaks of  counting            diversionary dispositions  if they involved "an  admission of            guilt in open court."   Id. comment. (n.9).   More important,                                    ___            the guideline  has a  purpose that  helps us  decide disputes                                  _______            about ambiguous language.                                         -6-                                         -6-                 In determining criminal  history points, the  sentencing            guidelines  impose points automatically  where there has been            an  "adjudication  of  guilt,"  U.S.S.G.     4A1.2(a)(1), but            merely  permit  the trial  court  to depart  where  the court            determines  that the  defendant's criminal  history category"            does   not  adequately   reflect  the   seriousness  of   the            defendant's past criminal conduct . . . ."  U.S.S.G.   4A1.3.            This   preference  for  adjudications   of  guilt  presumably            reflects the desire to  fasten on what can readily  be proved            and  the reasonable assurance that one who has pled guilty or            ___            been found  guilty did  commit the prior  crime in  question.            Cf.  Fed. R. Evid. 609  (allowing convictions to  be used for            ___            impeachment).                 In  Massachusetts an  admission to  sufficient facts  is            apparently recorded with about the same formality as  a plea,            see Mass. R. Crim. P. 12(a)(3), and so satisfies the readily-            ___            proved criterion.   Whether an admission  to sufficient facts            adequately assures  that the  defendant  committed the  prior            crime in question may  be a closer question.   There are  two            different reasons  for concern.   Both exist  only where  the            defendant's admission to sufficient facts occurs at the first            tier of the process, but that is where Roberts' admission did            occur.                 The first concern is that a defendant who  has available            a  trial  de novo,  even  after the  admission  to sufficient                      _______                                         -7-                                         -7-            facts, may have  so little  invested in the  admission as  to            make it unreliable as an admission of guilt.  Evidently, many            defendants use the continuance and admission procedure to see            if the condition  imposed is so  light as to make  the matter            not worth contesting.  Where the offense carries little moral            opprobrium  and where  the  penalty is  extremely light,  one            might question whether a  defendant's admission to sufficient            facts creates an  overwhelming likelihood that the  defendant            has done the deeds to which he or she admitted.                 But  this same  doubt exists  wherever a  defendant plea            bargains for  a light sentence and  thereafter pleads guilty.            In that instance, there would be an admission of guilt within            the literal language of  the guidelines, and we do  not think            that a  court would disregard  the admission of  guilt merely            because  the  defendant  might  have pled  for  opportunistic            reasons.  The guidelines embody all manner of compromises.  A            defendant who  commits  a new  crime after  creating a  prior            criminal record  has fair warning  that the record  may haunt            him  or  her  in   sentencing,  absent  quite   extraordinary            circumstances.                 The  second concern,  less easily  overcome, relates  to            process.  In Duquette, the Supreme Judicial Court made  clear                         ________            that an admission to sufficient facts, where it occurs at the            second tier, must be  treated with a formality that  makes it            ______            almost  indistinguishable  from a  guilty  plea.   There  are                                         -8-                                         -8-            required warnings:   the judge must  "prob[e] the defendant's            understanding,"  and must  "satisfy himself  that there  is a            factual basis for  a finding of guilty."  438  N.E.2d at 342.            Where  such an  admission to sufficient  facts occurs  and is            accepted  at the second tier, we think that the defendant has            in substance admitted to his guilt.                 But Duquette  imposed these  formalities because  at the                     ________                             _______            second  tier an admission  to sufficient  facts has  the same            consequences as a plea of guilty and cannot be wiped out by a            de novo appeal.   Id. at 342.  The court said that it was not                              ___            imposing  these  requirements  at  the first  tier  where  an            admission  to   sufficient  facts   could  be  treated   more            informally.  Id.  But it did not say how much more informally                         ___            and,  surprisingly, we  have not  discovered anything  in the            briefs, the record,  or the  cases or treatises  cited to  us            that explains in  any detail  how a first  tier admission  to            sufficient  facts actually works  in the  courtroom.   How it            works matters.                 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 the  offense.  This  sequence, or  any other  that            achieved the  same effect,  would  give reasonable  assurance                                         -9-                                         -9-            that the defendant had  confessed to certain events  and that            the events constituted  a crime.   That, in  our view,  would            make the  admission effectively  an admission of  guilt under            the guidelines.                 But  in 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.   There would be            nothing reprehensible  about such  a procedure; but  it would            give one little confidence that the defendant had admitted to            a crime.  Indeed, it would approach the "[d]iversion from the            judicial  process  without  a  finding  of  guilt"  that  the            guidelines say is "not counted."  U.S.S.G.   4A1.2(f).                   It is the government that is seeking to assign the extra            criminal history  point to  Roberts and it  therefore carries            the burden of  showing whatever facts  are needed to  justify            the  point.  Here  Roberts did not in  formal terms admit his            "guilt," and it  is the  government that needs  to show  that            what happened in 1986 was in substance an admission of guilt.                                      ____________            Thus,   we  think   that   the  necessary   details  of   the            Massachusetts  procedure are  for  the government  to  prove,            whether by showing  what actually happened  to Roberts or  by                                         -10-                                         -10-            showing   a   regular  course   of  practice   in  first-tier            proceedings.                 Whatever evidence  the government may  offer, Roberts is            free to  contradict it.    In particular,  if the  government            relies  on evidence  of general  practice, Roberts  should be            free  in our view to offer evidence that the general practice            was not followed in  his case and  that what happened to  him            was inadequate  to  constitute an  admission of  guilt.   Our            experience  with the  admission  to sufficient  facts is  too            limited to treat general practice as irrebuttable.                  In  this case  the government  has  not yet  carried its            initial burden.  It  is true that the government  appended to            its brief a detailed set of state district court  procedures,            adopted after  Duquette, for  continuances without  a finding                           ________            and  for  admissions  to  sufficient  facts.    Massachusetts            District  Court, Standards of  Judicial Practice:  Sentencing            and  Other Dispositions,  Standards  3:00 to  3:04 (September            1984).  But these  procedures resemble what Duquette required                                                        ________            for  second-tier admissions and we have no idea whether or to            what extent they  are designed  to, or do  in fact,  describe            first-tier admissions.  Enough may turn on this issue that we            are  not willing  merely to assume  that these  procedures do            occur in cases like Roberts.                 We  have noted, but do not  regard as dispositive, other            case law language and  analogies offered by both sides.   For                                         -11-                                         -11-            example, the government thinks that  Roberts' admission would            comprise  a  conviction  under  immigration  regulations, see                                                                      ___            Molina v. INS, 981 F.2d 14, 18 (1st Cir. 1992), while Roberts            ______    ___            points  to  Massachusetts  caselaw  limiting  the  collateral            consequences  of an  admission  to sufficient  facts.   E.g.,                                                                    ____            Santos v.  Director of  Division of Employment  Security, 498            ______     _____________________________________________            N.E.2d  118, 119 (Mass. 1986).  However, the concerns we have            already  addressed  are  the  ones we  think  are  of primary            importance to  a reasonable construction of  the guideline in            question.                 The government asserts  that even if we hold  against it            on  the  criminal  history  issue,  we  should  still  affirm            Roberts' sentence.  It points out that were Roberts  assigned            to  criminal  history  category   I,  the  15-month  sentence            actually   imposed  would   be   within  the   10-to-16-month            imprisonment  range  provided  for  a defendant  who  has  an            offense level of  12 and  a criminal history  category of  I.            The government suggests that the district judge's choice of a            sentence  above the minimum in  this case and  his remarks at            Roberts'  sentencing  strongly  suggest that  he  would  have            sentenced Roberts  to 15  months' imprisonment  regardless of            whether Roberts fell in category I or category II.                 There are  certainly  occasions on  which  a  sentencing            court's comments  make it clear  that the judge  would impose            the  same sentence  even if  a specific  issue as  to offense                                         -12-                                         -12-            level or criminal history category were resolved differently.            Sometimes judges  say so explicitly; in  other instances, the            court's remarks  or other circumstances may  confirm that the            sentence would have been precisely the same regardless of the            finding  on  that  issue.   Where  we  are  certain that  the            sentence would  have  been  the  same, we  normally  treat  a            dispute  about such a finding as harmless, and affirm even if            we think the finding error.  See generally Williams v. United                                         _____________ ________    ______            States, 112 S. Ct. 1112, 1120 (1992).            ______                 In this case, the district court might well have imposed            the  same  sentence  whether  Roberts had  been  assigned  to            category  I or category II, but  we are not certain enough to            avoid a remand.  The  choice of sentence is usually  within a            permissible guideline range based primarily on the individual            characteristics of the  crime and  the defendant's  behavior.            But nothing prevents a sentencing judge from being influenced            by  the  judge's sense  that the  case  calls for  a sentence            toward the top  or bottom  or middle of  the range,  whatever                                                                 ________            that range may be.            ____ _____ ___ __                 On  remand, the district court is free to determine that            the 15-month  sentence imposed  on Roberts  as a  category II            defendant  is also the proper sentence if Roberts is deemed a            category I defendant.   In that event the district  court can            reimpose  the same sentence and the  court need not determine            whether  criminal  history  category  I  or  II  is  correct.                                         -13-                                         -13-            Nevertheless,  in  that  situation  we  think  that  Roberts'            sentencing record could not describe him as having a criminal            history record higher than category I.                 If   instead  the  district  court  concludes  that  its            original sentence would  or might be altered  if Roberts were            assigned to category I, then the government may  adduce facts            that would  allow the  district court  to determine that  the            first-tier admission to  sufficient facts  was the  effective            equivalent of  a guilty plea.   Although the  government here            did not offer such proof in the district court, we think that            it should  be free to do so on remand.  The interpretation of            the guideline presents  a close question on  which this court            has  not  previously  spoken  and  the  government's  per  se                                                                  _______            position is by no means frivolous, see Hines, 802 F. Supp. at                                               ___ _____            564, even though we do not accept it in full.  Conversely, on            remand  the  government is  free not  to  offer proof  and to            permit Roberts to be resentenced as a category I defendant.                 The outcome  in this case  reflects our best  reading of            the present guideline as applied to a peculiar procedure that            the  guideline  drafters  did  not expressly  address.    The            procedure itself may now be wholly obsolete in Massachusetts;            but the  device of an admission to  sufficient facts endures,            quite possibly with variations,  in other jurisdictions.  See                                                                      ___            Annot.,  4 A.L.R.  4th  147 (1981)  (collecting cases).   The            subject  may  be one  that  the  Sentencing Commission  could                                         -14-                                         -14-            usefully address, either to clarify the existing guideline or            to improve it.                 The  sentence  is  vacated  and the  case  remanded  for                                    _______                 ________            further proceedings consistent with this opinion.                                         -15-                                         -15-
