                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-7-1999

United States v Amster
Precedential or Non-Precedential:

Docket 98-7625




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Recommended Citation
"United States v Amster" (1999). 1999 Decisions. Paper 280.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/280


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Filed October 7, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-7625

UNITED STATES OF AMERICA

v.

SCOTT AMSTER,
       Appellant

On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Criminal No. 98-cr-00182
(Honorable William W. Caldwell)

Argued June 2, 1999

Before: SCIRICA and McKEE, Circuit Judges,
and SCHWARZER, District Judge*

(Filed October 7, 1999)

J. DAVID BOGENSCHUTZ,
 ESQUIRE (ARGUED)
Bogenschutz & Dutko
600 South Andrews Avenue,
 Suite 500
Ft. Lauderdale, Florida 33301

 Attorney for Appellant



_________________________________________________________________

*The Honorable William W Schwarzer, United States District Judge for
the Northern District of California, sitting by designation.
       GORDON A. D. ZUBROD,
        ESQUIRE (ARGUED)
       Office of United States Attorney
       Federal Building
       228 Walnut Street
       P.O. Box 11754
       Harrisburg, Pennsylvania 17108

        Attorney for Appellee

OPINION OF THE COURT

SCIRICA, Circuit Judge.

This is an appeal of a criminal sentence implicating
S 4A1.2(f) of the U.S. Sentencing Guidelines. Appellant twice
pleaded nolo contendere with the awareness that
adjudication would be withheld and his compliance with
certain conditions would result in subsequent dismissal of
the charges. In each case, the charges were dismissed. This
appeal raises the narrow issue whether the District Court
correctly treated those prior dispositions as sentences
under U.S.S.G. S 4A1.2(f) when calculating appellant's
criminal history score under U.S.S.G. S 4A1.1(c).

I

On March 31, 1993, appellant Scott Amster was arrested
in Broward County, Florida with a homemade crack cocaine
pipe containing residues of cocaine. In the Broward County
Court, he entered a plea of nolo contendere to possession of
cocaine and drug paraphernalia, but the court withheld
adjudication and sentenced him to one year probation. On
June 14, 1994, Amster was arrested again for possession of
crack cocaine. He pleaded nolo contendere, adjudication
was withheld, and he was sentenced to two years
probation. Amster apparently completed a drug treatment
program, and, on May 6, 1996, the Broward County Court
vacated Amster's 1993 and 1994 pleas and sentences and
dismissed both cases under Fla. Stat. Ch. 397.705(1)
(1993) (amended 1997), which at that time provided,

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       If any offender . . . is charged with or convicted of a
       crime, the court . . . may require the offender to receive
       [drug counseling] services . . . . [T]he referral may be
       instead of or in addition to final adjudication,
       imposition of penalty or sentence, or other action.

See also State v. Dugan, 685 So.2d 1210, 1213 (Fla. 1996)
("[Section 397.705(1)] gives the trial court the discretion to
dismiss the charges against an offender who successfully
completes a drug treatment program.").

On August 13, 1998, Amster pleaded guilty in United
States District Court for the Middle District of Pennsylvania
to one count of conspiracy to commit mail fraud and wire
fraud in violation of 18 U.S.C.A. S 371 (West 1966 & Supp.
1999). Under U.S. Sentencing Guidelines Manual S 4A1.1(c)
(1998), Amster's criminal history category was increased by
one point each for his 1993 and 1994 Broward County
dispositions. Amster now appeals, contending his prior nolo
contendere pleas and sentences which were dismissed
should not have increased his federal criminal history
category.

II

The District Court had jurisdiction under 18 U.S.C.A.
S 3231 (West 1985). We have jurisdiction under 18 U.S.C.A.
S 3742(a) (West 1985 & Supp. 1999) and 28 U.S.C.A.
S 1291 (West 1993). The District Court's interpretation of
the guidelines is reviewed de novo. See United States v.
Vitale, 159 F.3d 810, 813 (3d Cir. 1998).

III

The Sentencing Guidelines specify that for purposes of
S 4A1.1(c), "[d]iversion 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 . . . even if a conviction is not
formally entered." U.S.S.G. S 4A1.2(f). In support of its
position that this section requires that Amster's previous
nolo contendere pleas be counted in his criminal history,

                                3
the government has cited several cases in which federal
defendants' criminal history categories were increased
based on prior incidents in which adjudication was
withheld by the court. See United States v. Rockman, 993
F.2d 811 (11th Cir. 1993) (nolo contendere plea considered
sentence for purpose of S 4A1.1(c)); United States v.
Bagheri, 999 F.2d 80, 82 (4th Cir. 1993) (same result where
defendant "agreed to probation without entry of judgment");
United States v. Frank, 932 F.2d 700 (8th Cir. 1991) (same
result where defendant pleaded guilty but adjudication was
withheld); United States v. Giraldo-Lara, 919 F.2d 19 (5th
Cir. 1990) (same).

Amster seeks to distinguish the government's cases by
pointing out that the Broward County Court did more than
withhold adjudication; it vacated his pleas and dismissed
his cases. According to Amster, the nolo pleas should not
be counted against him because the vacaturs placed him in
the position he had been before the pleas were entered.
Furthermore, Amster argues he entered his pleas with full
knowledge they would eventually be vacated by the court if
he successfully completed his treatment.

Section 4A1.2(f) is unequivocal. "A diversionary
disposition resulting from . . . a plea of nolo contendere in
a judicial proceeding is counted . . . ." Each of Amster's nolo
contendere pleas resulted in a "diversionary disposition."
See Rockman, 993 F.2d at 814. In light of the clear and
unambiguous language of the guideline and the lack of
applicable ameliorating language in the application notes,
see U.S.S.G. S 4A1.2, comment. (nn. 6, 9, 10),1 Amster
_________________________________________________________________

1. Application Notes 6, 9 and 10 provide:

       6. Reversed, Vacated, or Invalidated Convictions. Sentences
       resulting from convictions that (A) have been reversed or vacated
       because of errors of law or because of subsequently discovered
       evidence exonerating the defendant, or (B) have been ruled
       constitutionally invalid in a prior case are not to be counted.
       With respect to the current sentencing proceeding, this guideline
       and commentary do not confer upon the defendant any right to
       attack collaterally a prior conviction or sentence beyond any
       such rights otherwise recognized in law (e.g., S 21 U.S.C. 851
       expressly provides that a defendant may collaterally attack
       certain prior convictions). . . .

                                4
cannot avoid the effect of his prior pleas on his present
sentence.

       Accordingly, we will affirm the judgment of sentence.

       A True Copy:
       Teste:

       Clerk of the United States Court of Appeals
             for the Third Circuit
_________________________________________________________________

9. Diversionary Dispositions. Section 4A1.2(f) requires counting
       prior adult diversionary dispositions if they involved a judicial
       determination of guilt or an admission of guilt in open court.
       This reflects a policy that defendants who receive the benefit of
       a rehabilitative sentence and continue to commit crimes should
       not be treated with further leniency.

       10. Convictions Set Aside or Defendant Pardoned. A number of
       jurisdictions have various procedures pursuant to which
       previous convictions may be set aside or the defendant may be
       pardoned for reasons unrelated to innocence or errors of law,
       e.g., in order to restore civil rights or to remove the stigma
       associated with a criminal conviction. Sentences resulting from
       such convictions are to be counted. However, expunged
       convictions are not counted.
       S 4A1.2(j).

U.S.S.G. S 4A1.2, comment. (nn. 6, 9, 10).

Amster does not argue either of the dispositions in question was
expunged.

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