
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
