
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2357        No. 93-2383                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  PASQUALE PERROTTA,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. Frank H. Freedman, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Charles K.  Stephenson with whom Richard  L. Goldman  was on brief            ______________________           ___________________        for appellant.            Kevin  O'Regan,  Assistant  United  States  Attorney,  with   whom            ______________        Donald K. Stern, United States  Attorney, was on brief for  the United        _______________        States.                                 ____________________                                  December 27, 1994                                 ____________________                 BOUDIN, Circuit Judge.   Pasquale Perrotta was  indicted                         _____________            for  participating in a  large-scale narcotics conspiracy, 21            U.S.C.      841,  846,  and for  possession  with  intent  to            distribute cocaine on a specific date.  21 U.S.C.    841.  In            1990,  Perrotta was  tried,  with 12  co-defendants, and  was            convicted  on both the conspiracy and  possession counts.  We            resolved the appeals of  a number of Perrotta's co-defendants            in United  States  v. Innamorati,  996 F.2d  456 (1st  Cir.),               ______________     __________            cert. denied, 114  S. Ct. 409, 114 S. Ct.  459 (1993), 114 S.            ____________            Ct. 1072, 114 S. Ct. 1073 (1994).                 Perrotta's sentencing occurred on December 7, 1993.  The            delay is  presumably related to the government's willingness,            at  sentencing,  to  move  for  a  downward  departure  under            U.S.S.G.    5K1.1.  The court computed the guideline range as            providing for 97 to 121 months of imprisonment but, approving            a  downward departure,  the  court sentenced  Perrotta to  60            months  in prison,  with three  years' supervised  release to            follow.  Perrotta has now appealed.                 Perrotta's first  point concerns  the unusual action  of            the  government  in making  a  post-trial  submission to  the            district court, neither the contents nor the existence of the            submission  being known to the  defendants at the  time.  See                                                                      ___            Innamorati,  996 F.2d at 487.  The government, in addition to            __________            providing reasons  for its secrecy, asked  the district court            to  determine whether  the information  fell under  the Brady                                                                    _____                                         -2-                                         -2-            doctrine and had to be disclosed to the defense.  Id.  In the                                                              ___            course of the Innamorati appeals, this court ordered that the                          __________            existence  of  the  government's  submission  and  the relief            sought  be  disclosed  to  the  defense  while  the  contents            remained impounded.  Id.                                 ___                 This  court  eventually  sustained  the  convictions  in            Innamorati.  We agreed  that secret submissions are dangerous            __________            and are to be  discouraged; but we found,  after a review  of            the actual  submission, that there had been an adequate basis            for filing the  submission in the  district court under  seal            and  without  notice  to  defense  counsel;  that  there  was            adequate cause to continue  the impoundment of the submission            (even  though the  existence of the  submission might  now be            made known); and  that the contents of  the submission either            did not  constitute Brady  material or could  not conceivably                                _____            have affected the outcome of the case.  996 F.2d at 487-88.                 Perrotta does  not seek to relitigate  the legal rulings            just described  but makes two narrower  claims concerning the            disclosed material.  First, he suggests  that since more time            has now elapsed since the original submission, it must now be            safe to  have the  contents of  the submission  disclosed, so            that Perrotta's defense counsel can make his own judgment and            argue more  effectively that the material  could constitute a            prejudicial withholding of Brady information.  Alternatively,                                       _____            Perrotta speculates as to  what the withheld submission might                                         -3-                                         -3-            contain and suggests that the material  has a special bearing            as to him that may not have been true of his co-defendants.                 The  contents of  the  government's original  submission            have again been  reviewed by this  court.  We  remain of  the            view  that the  government's reasons  for not  disclosing the            contents of the material remain valid, despite the passage of            additional time.  And having considered Perrotta's suggestion            that the  material  may be  specially pertinent  to him,  the            government's  submission has been  re-examined in that light,            but  with no  difference  in  result:    there  has  been  no            withholding from  Perrotta of Brady material  that could have                                          _____            altered the result in his case.                 Perrotta's  second   claim  of  error  relates   to  his            sentencing.  The  amount of drugs attributed  to Perrotta was            stipulated  but,  in  calculating  this  guideline  range,  a            dispute arose  concerning his  criminal history based  on the            following events.  Perrotta  had been convicted and sentenced            in 1976 for a  gambling offense, but the conviction  had been            overturned on appeal.   See  United States  v. Perrotta,  553                                    ___  _____________     ________            F.2d 247 (1st Cir. 1977).   Perrotta then pled guilty to  the            offense on remand and was resentenced on April 24, 1978.  The            question  is  whether the  1978  sentence  affects Perrotta's            criminal history score.                 The Sentencing Guidelines provide that one point  should            be added  to a  defendant's criminal  history score for  each                                         -4-                                         -4-            "prior sentence"  where, as  was true of  Perrotta's gambling            conviction, the sentence was less than 60 days' imprisonment.            U.S.S.G.     4A1.1(c).   The  guidelines  provide a  kind  of            statute of limitations for  prior sentences used in computing            criminal  history.  For prior sentences of 13 months or less,            points  are to  be added  only for  "any .  . .  [such] prior            sentence that was imposed within ten years of the defendant's            commencement  of  the  instant offense  .  .  .  ."    Id.                                                                      ___            4A1.2(e)(2).     Perrotta  and   the  government  agree  that            Perrotta's  original 1976  sentence  occurred more  than  ten            years before  the "instant"  drug conspiracy began,  but that            the 1978 sentence occurred within  ten years of the beginning            of the conspiracy.                 The  1978  sentence is,  in  the  literal words  of  the            guideline,  a "prior  sentence  that was  imposed within  ten            years"  of the instant offense.  U.S.S.G.   4A1.2(e)(2).  The            guidelines  reinforce this  literal  reading by  treating the            1976  sentence as  a  nullity; a  sentence  resulting from  a            conviction that has been  "reversed or vacated" is not  to be            counted.   U.S.S.G.     4A1.2, comment.  (n.  6).   There  is            consistent case  law to this  effect, e.g., United  States v.                                                  ____  ______________            Schweihs, 971 F.2d  1302, 1318 (7th Cir. 1992).   Thus on the            ________            face of  the guidelines,  the district  court was  correct in            including the  1978 sentence  as part of  Perrotta's criminal            history.                                         -5-                                         -5-                 There  is  no  reason   to  doubt  that  the  Sentencing            Commission meant what it said.  Although the gambling offense            itself  may have occurred more than ten years before the drug            conspiracy  began, the  Commission could  reasonably conclude            that criminal history points should be added in the case of a            defendant who, within ten  years of sentencing, determined to            commit  yet another crime.  To the extent that the sentencing            is  treated  as  a  warning that  should  give  the defendant            special  pause for the  next decade,  the fact  that it  is a            resentencing after a remand makes no difference.                 Finally, we reject  Perrotta's suggestion that  adding a            point  because of  the 1978  sentence is  an unconstitutional            burden  on his  right to appeal  his original  conviction for            gambling.    Defendants  are  protected  against unreasonable            burdens on  their right to  pursue judicial remedies  but not            against every  incidental  and remote  disadvantage that  may            attach.  See North  Carolina v. Pearce, 395 U.S.  711 (1969);                     ___ _______________    ______            Beauchamp v. Murphy,  37 F.3d 700 (1st Cir.  1994).  There is            _________    ______            virtually  no  chance that  a defendant  will fail  to appeal            because of  the fear that a decade later he may be subject to            an additional criminal history point  if he chooses to commit                                                  __            another crime.                 Perrotta's argument regarding the secret submission is a            serious one, and  we have  treated the first  claim of  error            briefly   only  because  the  underlying  secrecy  issue  was                                         -6-                                         -6-            extensively  considered  in Innamorati.    On  the sentencing                                        __________            issue,  Perrotta's claim is  also not frivolous  but we think            that  the merits are clear  enough that we  need not consider            whether, in view of  the district court's downward departure,            Perrotta's precise criminal history  category had any  likely            effect on the sentence.                 Affirmed.                 ________                                         -7-                                         -7-
