
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 95-2200                                    UNITED STATES,                                      Appellee,                                          v.                                   FRANK J. LINDIA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Edward S. MacColl with whom Thompson,  McNaboe, Ashley & Bull  was            _________________           _________________________________        on brief for appellant.            Margaret  D.  McGaughey, Assistant  United  States Attorney,  with            _______________________        whom  Jay  P.  McCloskey,  United  States  Attorney,  and Jonathan  R.              __________________                                  ____________        Chapman, Assistant United States Attorney, were on brief for appellee.        _______                                 ____________________                                    April 18, 1996                                 ____________________                      STAHL, Circuit Judge.  Pursuant to a plea agreement                      STAHL, Circuit Judge.                             _____________            with  the  government,  defendant-appellant  Frank  J. Lindia            pleaded guilty to a  one-count indictment charging that, from            December 1994  to January 31, 1995, he  and codefendants John            C. Mosby and  Augustine T. Aguirre conspired  to possess with            intent  to  distribute  in   excess  of  fifty  kilograms  of            marijuana,  in violation  of 21  U.S.C.   846,  841(a)(1) and            (b)(1)(C).  On appeal, Lindia claims that  the district court            erred by:  including a  negotiated but unconsummated  sale of            150  pounds   of  marijuana  in   the  sentence  calculation;            sentencing him as  a career offender; and refusing  to depart            downward  from the  sentence on  his claim  that the  career-            offender    criminal     history    category    significantly            overrepresented his past criminal conduct.                                          I.                                          I.                                          __                      Pertinent Background and Prior Proceedings                      Pertinent Background and Prior Proceedings                      __________________________________________            A.  Facts            _________                      We accept the facts as set forth in the uncontested            portions of  the Presentence Investigation Report ("PSR") and            the  sentencing  hearing  transcript, see  United  States  v.                                                  ___  ______________            Muniz, 49  F.3d 36, 37  (1st Cir. 1995),  reciting additional            _____            facts below as necessary.                        In late  1994,  federal and  Maine law  enforcement            authorities, with the help  of a cooperating individual (CI),            began  investigating Lindia's  activities.   Soon thereafter,                                         -2-                                          2            the  CI  (who had  been  the "buyer"  in  monitored marijuana            transactions) introduced to Lindia an "associate," undercover            DEA  Special Agent  Mike  Cunniff, who  would handle  further            transactions.  During the ensuing negotiations, Agent Cunniff            was introduced to Lindia's associates, Aguirre and Mosby.                      On  January 20,  1995, Agent  Cunniff met  Mosby at            Mosby's  home   in  Jamestown,  Rhode  Island,   where  Mosby            delivered  to Cunniff  forty-eight pounds  of marijuana.   On            January  31, 1995,  Lindia and  Aguirre met Agent  Cunniff in            Portland, Maine, to receive  payment for the marijuana.   The            meeting took place in a hotel room that government agents had            previously  set  up with  videotape  equipment.   During  the            meeting,  Agent   Cunniff  delivered  $62,400  in   cash  and            commented  on the failure of Aguirre and Lindia to accept the            payment  earlier, as they had promised.   Concerned about his            customer's  unhappiness, Lindia apologized  for the delay and            indicated that more marijuana was  available.  The three  men            then planned  for an additional thirty pounds of marijuana to            be delivered the next day.                      Also during  the  videotaped meeting,  Lindia  told            Cunniff, "We have something else .  . . that we would like to            send up to  you."  Both  Lindia and Aguirre  then spoke of  a            subsequent shipment  of  marijuana and  indicated  that  they            could  probably  send  Cunniff  "about" 150  or  200  pounds,                                         -3-                                          3            depending  upon the capacity of the vehicle in which it would            travel.1   Lindia stated that the lot could be delivered in a            little over one  week's time.   After counting  out the  cash            payment for the forty-eight  pound lot and discussing details            of the  next day's thirty-pound delivery,  Lindia and Aguirre            left  the hotel  room  and were  promptly  arrested.   Lindia            eventually   pleaded   guilty   and   cooperated   with   the            authorities.            B.  Sentencing            ______________                                            ____________________            1.  The  transcript  of  this  portion  of  the  conversation            between Lindia, Aguirre and Agent Cunniff reads, in part:                      Lindia:   And let me ask  you another question.  We                                have something  else . . .  that we would                                like  to send  up to  you.   Now this  is                                going to be                      Aguirre:  What, the [shipment] that's coming                      Lindia:   The one that's coming with . . . Chewy                      Aguirre:  Are  you  talking about  this  one that's                                already                      Lindia    Not this  one, the  one that's  behind it                                from Chewy                      Aguirre:  Well, we could probably get about                      Lindia:   We could probably get about                      Aguirre:  One and one half, or two even                      Cunniff:  I can handle three, five, or thousand                      Lindia:   This is contingent upon the  vehicle that                                we have at this point. . . . So two would                                probably be the limit.            After  discussing delivery  matters about this  shipment, the            discussion continued:                      Cunniff:  How much are we talking about?                      Lindia:   Probably one and half to two                                . . . .                      Aguirre:  Whatever we can get [in the vehicle].                                         -4-                                          4                      The  district  court sentenced  Lindia as  a career            offender under  21 U.S.C.   994(h), including  as a predicate            offense Lindia's Rhode Island conviction on a nolo contendere                                                          ____ __________            plea for possession with intent to deliver marijuana.   Under            the Career  Offender guideline,  U.S.S.G.   4B1.1, the  court            was required  to determine  the offense statutory  maximum in            order to ascertain the applicable offense level.  Because the            court included the negotiated 150-pound lot in  the amount of            drugs attributable to Lindia,  it found the offense statutory            maximum  to be  twenty  years' imprisonment  under 21  U.S.C.              841(b)(1)(C).                      Pursuant  to  the  Career Offender  guideline,  the            statutory maximum of twenty years yielded an offense level of            thirty-two with  a criminal history  category of VI.   Lindia            asked  the court  to depart  downward on  the basis  that the            criminal  history  category   overrepresented  his   criminal            history; but  the court refused, specifically  ruling that it            did  not have the authority to do so.   The court did grant a            three-level  downward  adjustment  in the  offense  level for            acceptance of  responsibility, resulting  in a  total offense            level of  twenty-nine and  a guideline imprisonment  range of            151 to 188 months.  On the government's motion under U.S.S.G.              5K1.1, the court departed downward from the guideline range            for Lindia's substantial assistance and imposed a sentence of            108 months' incarceration.                                         -5-                                          5                                         II.                                         II.                                         ___                                      Discussion                                      Discussion                                      __________                      We review  the sentencing court's  findings of fact            for  "clear error"  and  generally defer  to its  credibility            determinations.   United States v. Muniz, 49 F.3d 36, 41 (1st                              _____________    _____            Cir. 1995); United States v. Whiting, 28 F.3d 1296, 1304 (1st                        _____________    _______            Cir.),  cert. denied, 115 S.  Ct. 378, 498,  499, 532 (1994).                    _____ ______            We  review   de  novo  the  court's   interpretation  of  the                         __  ____            guidelines and application of law.  Muniz, 49 F.3d at 41.                                                _____            A.  Drug Quantity Calculation            _____________________________                      The   extent  of  the  penalty  for  a  controlled-            substance  conviction  is determined  in  large  part by  the            amount  of  drugs  properly attributable  to  the  defendant.            United  States v. Campbell, 61 F.3d 976, 982 (1st Cir. 1995),            ______________    ________            petition for cert. filed,  (Mar. 8, 1996) (No. 95-8348).   On            ________ ___ _____ _____            appeal,  Lindia challenges the  district court's inclusion of            the  negotiated  but  unconsummated  150-pound  lot  in   the            calculation of his sentence.  Without this quantity, he would            have received the benefit  of 21 U.S.C.   841(b)(1)(D), which            provides for a  maximum imprisonment term of only  five years            "[i]n  the case  of less  than 50  kilograms of  marijuana."2            Use of  this penalty provision would have  yielded, under the                                            ____________________            2.  1 kilogram is equivalent to approximately 2.2 pounds.                                         -6-                                          6            Career Offender guideline, a pre-adjustment  offense level of            seventeen instead of thirty-two.  See U.S.S.G.   4B1.1.3                                              ___                      The  PSR stated  that  Lindia was  responsible  for            103.5 kilograms of  marijuana, representing a  combination of            the forty-eight  pound,  thirty-pound, and  150-pound  lots.4                                            ____________________            3.  This  challenge is  somewhat perplexing  in light  of the            indictment  and  plea  agreement  in the  record  before  us.            Lindia  informs  this court  that  he pleaded  guilty  to the            conspiracy to possess with intent to distribute marijuana but            "did  not plead guilty to quantity."  The indictment to which            he pleaded  guilty, however,  states that the  conspiracy was            for  "in   excess  of  50  kilograms."    Further,  both  the            indictment   and   the   plea   agreement   cite  21   U.S.C.              841(b)(1)(C)  which sets  forth  a maximum  sentence of  20            years as the applicable penalty provision.  Indeed,  the plea            agreement  explicitly states  that "[t]he  parties agree  and            understand that  the maximum  statutory penalty which  may be            imposed  upon conviction  is  imprisonment of  not more  than            twenty years."                      Nonetheless,  Lindia insists that  at the change of            plea hearing, the court and the parties "understood" that the            issue  of  drug quantity  would  be  left entirely  open  for            sentencing  purposes.   Incredibly, Lindia  does not  provide            this  court with a transcript  of the change  of plea hearing            for our consideration  of his claimed material change  in the            indictment and  plea agreement.   And  nothing in the  record            before us  hints of  a superseding indictment  or information            eliminating the  quantity specification.  Because  the record            adequately supports  the court's finding  that, counting  the            negotiated 150-pound lot, the marijuana quantity attributable            to Lindia was  in excess of  50 kilograms, we  do not  decide            whether his plea precluded his challenge to the drug quantity            finding.            4.  The government points  out that, with a total quantity of            103.5 kilograms of marijuana, the five-year mandatory minimum            and 40-year  maximum in  21 U.S.C.    841(b)(1)(B)(vii) might            have   applied   rather   than   the   20-year   maximum   in              841(b)(1)(C).    The  application  of   the  lower  maximum            sentence  is apparently  based  on the  understanding of  the            parties  and  court, as  evidenced  in  the indictment,  plea            agreement, and  PSR, that Lindia  would be responsible  for a            marijuana  quantity  that  would  trigger no  more  than  the            penalties set for in   841(b)(1)(C).                                         -7-                                          7            Lindia objected to  this conclusion,  asserting, inter  alia,                                                             _____  ____            that the 150-pound lot "never existed" and was not the object            of  any   conspiracy,  and  that  his   statements  about  it            constituted  mere  "puffing"  in  an attempt  to  gain  Agent            Cunniff's business  confidence.   At the sentencing  hearing,            Lindia  testified  that  the  150-pound lot  had  never  been            previously discussed or  planned and that  no steps had  been            taken  to obtain it.  Lindia repeated that the discussion was            meant to impress Agent Cunniff, and testified that only after            obtaining payment  for the forty-eight  and thirty-pound lots            did he intend to  actually seek the additional 150  pounds of            marijuana.                      The district court found, under a preponderance-of-            the-evidence standard, that the  proposed delivery of the 150            pound lot  had  not  been  discussed or  planned  before  the            videotaped  meeting.   The  court also  found, however,  that            based on Lindia's and Aguirre's statements, the 150 pounds of            marijuana added to, and were part of, the charged conspiracy.            The court found that  Lindia and Aguirre intended  to produce            that  marijuana and were  reasonably capable of  doing so and            thus, the 150  pounds were includable in  the offense conduct            for the purposes of the statutory maximum and the  Sentencing            Guidelines.                      Application note 12 of U.S.S.G.   2D1.1 provides:                      In  an  offense involving  negotiation to                      traffic  in  a controlled  substance, the                                         -8-                                          8                      weight    under    negotiation   in    an                      uncompleted distribution shall be used to                      calculate    the    applicable    amount.                      However, where the  court finds that  the                      defendant did  not intend to  produce and                      was not reasonably  capable of  producing                      the  negotiated  amount, the  court shall                      exclude  from  the guideline  calculation                      the  amount that  it finds  the defendant                      did not  intend  to produce  and was  not                      reasonable capable of producing.            We  have interpreted  this note  as requiring  the sentencing            court to include the negotiated  amount in the drug  quantity            calculation unless it finds  both that the defendant did  not            have the intent to produce the amount, and that he lacked the            capacity to deliver  it.   United States v.  Wihbey, 75  F.3d                                       _____________     ______            761, 777 (1st Cir. 1996); Muniz, 49 F.3d at  39.  Application                                      _____            note  12  applies for  the  purposes of  both  the Sentencing            Guidelines  and  the  statutory  penalties  under  21  U.S.C.              841(b).  Muniz, 49 F.3d at 39-40 (indicating that five-year                       _____            difference in statutory mandatory minimum was  dependent upon            drug quantity  calculated under application  note 12); United                                                                   ______            States v. Pion,  25 F.3d 18, 25 n.12  (1st Cir.) (noting that            ______    ____            drug  quantity  finding  under  note  12  provides  threshold            calculus for  mandatory minimums),  cert. denied, 115  S. Ct.                                                _____ ______            326 (1994).                      Lindia  contends  that  due  process  requires  the            government to prove drug  quantity beyond a reasonable doubt.            Drug quantity, however, is  not an element of the  offense of            conviction, 21 U.S.C.    846  and 841(a)(1), but is typically                                         -9-                                          9            relevant only for  determining the  penalty.   See 21  U.S.C.                                                           ___              841(b); United States v. Campbell, 61 F.3d 976, 979-80 (1st                      _____________    ________            Cir. 1995) (citing  United States v. Lam  Kwong-Wah, 966 F.2d                                _____________    ______________            682,  685 (D.C.  Cir.), cert. denied,  506 U.S.  901 (1992));                                    _____ ______            United States  v. Patterson,  38 F.3d  139, 143-44  (4th Cir.            _____________     _________            1994), cert. denied, 115  S. Ct. 1968 (1995).  As  such, drug                   _____ ______            quantity  for  purposes  of    841(b) is  determined  by  the            sentencing   court   under  a   preponderance-of-the-evidence            standard.5   See United States  v. Barnes, 890  F.2d 545, 551                         ___ _____________     ______            n.6 (1st Cir. 1989) (noting that  court, not jury, determines            drug quantity  under   841(b)),  cert. denied, 494  U.S. 1019                                             _____ ______            (1990); United  States v. Lombard,  72 F.3d 170,  175-76 (1st                    ______________    _______            Cir. 1995) (explaining that  "once convicted, a defendant has            no  right under the Due Process Clause to have his sentencing            determination be confined to facts proved beyond a reasonable            doubt,"  rather, applicable standard  is preponderance of the            evidence);  Whiting, 28  F.3d  at 1304  and n.5  (reaffirming                        _______                                            ____________________            5.  We note  that, during  the sentencing  proceeding, Lindia            argued that the government must prove drug quantity beyond  a            reasonable doubt, and that  he had the right to a "jury trial            on the question of quantity."  The court told Lindia, "either            you  get a jury  trial on the offense  or not," remarked that            this  request  was essentially  an  attempt  to withdraw  the            guilty  plea, and inquired if he sought to withdraw his plea.            After consulting with his counsel, Lindia stood by his plea.                                         -10-                                          10            preponderant  evidence  standard);   see  also  McMillan   v.                                                 ___  ____  ________            Pennsylvania, 477 U.S. 79, 91-93 (1986).6            ____________                      Here, to assist in its determination of whether the            conspiracy included the 150-pound lot, the district court had                                            ____________________            6.  Lindia  cites  McMillan  v.  Pennsylvania,  477  U.S.  79                               ________      ____________            (1986), in support of his argument that due  process requires            proof  of drug quantity beyond a reasonable doubt.  McMillan,                                                                ________            however, expressed a due process concern where a state treats            an element of a criminal offense as a sentencing factor, thus            affording it less procedural safeguards.  477  U.S. at 84-88.            Here,  the quantity of drugs  in this federal  offense is not                       ________            one of the elements of the  offense, see supra, but a settled                                                 ___ _____            sentencing factor.                      Moreover,  this  is not  a case  in which  the drug            quantity  finding  is  "a tail  which  wags  the  dog of  the            substantive  offense,"  McMillan,  477 U.S.  at  88,  thereby                                    ________            possibly  triggering   a  higher  burden  of   proof  on  the            government.   See United States v. Townley, 929 F.2d 365, 369                          ___ _____________    _______            (8th Cir. 1991) (suggesting but not deciding that due process            requires  more than preponderant  standard where inclusion of            uncharged  drug amounts  produced 18-level  increase in  base            offense level  and seven-fold increase  in sentencing range);            United States v. Kikumura, 918 F.2d 1084, 1102 (3d Cir. 1990)            _____________    ________            (holding that clear-and-convincing evidence  standard applies            to justify a twelve-fold, 330-month  departure from guideline            range median); cf. United States v. Lombard, 72 F.3d 170, 176                           ___ _____________    _______            (1st  Cir. 1995)  (holding that  sentencing court  may depart            downward  where  uncharged,  enhancing  conduct  of acquitted            murder  charge increased  sentence  from 262-327  months'  to            mandatory life term).                      Without expressing any  opinion as to  the holdings            of Townley and  Kikumura, we  note that,  unlike those  cases               _______      ________            (and  Lombard,  as  well),  this  case  does  not  involve  a                  _______            sentencing  enhancement  or  departure  based   on  uncharged                                                                _________            conduct.  Here, Lindia pleaded guilty to every element of the            offense charging a marijuana conspiracy between December 1994            and January 31, 1995; and the sentence squarely punishes that            offense  of  conviction.    See United  States  v.  Harrison-                                        ___ ______________      _________            Philpot,  978  F.2d  1520,  1524  (9th  Cir.  1992)  (holding            _______            inapplicable tail-wagging-dog concerns  where disputed  drug-            quantity  pertained only to  sentence for convicted conduct),            cert. denied, 508 U.S. 929 (1993).  In short, this  is simply            _____ ______            not a case  in which  due process required  anything more  at            sentencing.                                         -11-                                          11            the  benefit  of  the  videotape  of the  hotel  meeting  and            Lindia's  own  testimony  at  the sentencing  hearing.    The            transcript from  the hotel meeting  clearly reveals  Lindia's            (and  Aguirre's)  stated  desire  and  agreement  to  provide            Cunniff  with 150 to 200 pounds of marijuana.  The discussion            included details such as the identification of the shipment's            source,  the  capacity  of   the  vehicle  to  transport  the            marijuana,  and the number of days for delivery.  Thus, there            was sufficient, reliable evidence  from which the court could            find, by a preponderance of the evidence, that the conspiracy            included the 150-pound lot.                      To invoke the exception of application note 12, the            court needed to  be persuaded  that Lindia did  not have  the            intent  and ability to produce the 150-pound lot.  Wihbey, 75                                                               ______            F.3d  at 777.   The  court  was free  to reject,  as it  did,            Lindia's claim that the discussion of the 150 pounds was mere            "puffing" to impress the buyer into future negotiations.  See                                                                      ___            Whiting,  28 F.3d  at  1305 (refusing  to disturb  sentencing            _______            court's rejection of "puffing" claim); see also United States                                                   ___ ____ _____________            v.  DeMasi, 40 F.3d 1306,  1322 n.18 (1st  Cir. 1994) (noting                ______            that sentencing court's  choice between supportable plausible            inferences cannot  amount to clear error),  cert. denied, 115                                                        _____ ______            S. Ct. 947 (1995).  Lindia did not prove to the court that he            lacked  the  intent and  ability  to  produce the  negotiated            amount; rather,  based on  the evidence presented,  the court                                         -12-                                          12            affirmatively  found that he had  both.  We  discern no clear            error in the court's finding that the 150 pounds of marijuana            were part  of the  conspiracy and,  as such,  were includable            under U.S.S.G.    2D1.1 to  determine  the offense  statutory            maximum and Guideline sentencing range.7            B.  Career Offender Status            __________________________                                            ____________________            7.  Lindia  cites  Neal  v.  United States,  116  S.  Ct. 763                               ____      _____________            (1996), in support of his contention that application note 12            "is inconsistent with established  law."  In Neal, the  court                                                         ____            held  that stare  decisis required  it to  adhere to  a prior                       _____  _______            statutory   interpretation   pertaining  to   the  sentencing            calculation  of  a  certain drug,  in  the  face  of a  newly            conflicting  methodology set forth in the Guidelines.  116 S.            Ct. at 768-69.   Here, Lindia cites no controlling sentencing            precedent with which application note  12 actually conflicts.            Rather, Lindia  cites cases  affirming the general  principle            that the object of a conspiracy is an element of  the offense            and must be  proven beyond  a reasonable doubt.   See  United                                                              ___  ______            States  v. Bush, 70 F.3d  557, 561 (10th  Cir. 1995) (holding            ______     ____            that in a multiple-object  conspiracy conviction, where it is            impossible to tell which  controlled substance was the object            of conviction, defendant must be sentenced based on objective            yielding lowest offense  level), cert. denied, 116 S. Ct. 795                                             _____ ______            (1996).   Lindia  contends  that because  specific intent  to            effectuate  the  substantive offense  must  be  proven for  a            conspiracy  conviction,  application note  12  conflicts with            "long-established  law  for  identifying   the  object  of  a            conspiracy" because  it permits inclusion of  a drug quantity            even if the defendant did not have the intent to produce that            quantity.                      Here,  unlike Bush,  the indictment  specifies only                                    ____            one controlled-substance object of the conspiracy: possession            with intent  to distribute  marijuana.  Lindia's  guilty plea            waived the government's burden to prove that object.  Had the            case  gone to  trial, the  government would  not have  had to            prove  any  specific  amount   of  drugs  for  a  conviction.            Campbell,  61  F.3d at  979.   Thus,  application note  12 is            ________            simply   part  of  the  Sentencing  Commission's  permissible            methodology for  employing the penalty  provisions pertaining            to  quantity set forth in    841(b); it does  not remove from            the government's burden an element of the conspiracy offense.                                         -13-                                          13                      The  district  court sentenced  Lindia as  a career            offender  under 21 U.S.C.    994(h) due to  two previous drug            distribution offenses and the  instant offense.  See U.S.S.G.                                                             ___              4B1.1.   Lindia  challenges  this aspect  of his  sentence,            arguing  first,   that  conspiracy  to  commit  a  controlled            substance offense should not  trigger career offender status,            and  second,  that the  court should  not  have counted  as a            predicate  offense  a Rhode  Island  charge  to which  Lindia            pleaded nolo contendere.                    ____ __________                                         -14-                                          14                      1.  Conspiracy As Predicate Offense                      ___________________________________                      In 1994, this  court joined a number of  our sister            circuits  in  holding  that,  in  U.S.S.G.    4B1.2, comment.            (n.1),  the  Commission  properly  designated  conspiracy  to                                                           __________            commit  a  "crime  of  violence  or  a  controlled  substance            offense"  as a  triggering  or predicate  offense for  career            offender purposes, even though conspiracy convictions are not            listed  in  the body  of the  pertinent  guidelines or  in 28            U.S.C.   994(h).  United  States v. Piper, 35 F.3d  611, 618-                              ______________    _____            619  (1st Cir. 1994) (citing cases), cert. denied, 115 S. Ct.                                                 _____ ______            1118  (1995).   On appeal,  Lindia  invites us  to reconsider            Piper and  join those  circuits holding that  conspiracies to            _____            commit  the crimes defined in   994(h) do not fall within its            purview.   See  e.g., United  States v.  Mendoza-Figueroa, 28                       ___  ____  ______________     ________________            F.3d  766 (8th  Cir.  1994), cert.  denied,  116 S.  Ct.  939                                         _____  ______            (1996).    We  decline  the  invitation  and  adhere  to  our            controlling precedent, thus affirming  the use of the instant            conspiracy   conviction  to   trigger  the   career  offender            provisions.                      2.  The Rhode Island Nolo Contendere Plea                      _________________________________________                      In 1986, Lindia pleaded  nolo contendere to a Rhode                                               ____ __________            Island charge of possession  with intent to deliver marijuana            ("the  1986 charge").  On this plea, the state court adjudged            Lindia  "guilty as  charged  and convicted"  and  gave him  a            deferred sentence.  Lindia argues that the 1986 charge is not                                         -15-                                          15            a "conviction"  under Rhode  Island law and  therefore cannot            constitute  a  predicate  offense  for  purposes   of  career            offender status.                      We have previously  addressed the issue  of whether            or not a  nolo contendere plea and  subsequent disposition in                      ____ __________            Rhode   Island  constitutes   a   "conviction"  for   federal            sentencing purposes.   See United States v. Patrone, 948 F.2d                                   ___ _____________    _______            813, 816-17  (1st  Cir. 1991),  cert.  denied, 504  U.S.  978                                            _____  ______            (1992).  Patrone involved sentencing under  the armed-career-                     _______            criminal  statute, 18  U.S.C.    924(e),  which  specifically            provides that  state law  determines whether or  not a  state                           _____            disposition constitutes a  "conviction."  Id. at  816; see 18                                                      ___          ___            U.S.C.   921(a)(20).  By contrast, for purposes of the career            offender  provisions,  whether  or not  a  state  disposition            constitutes  a  "conviction" is  determined  by  reference to            federal law and the Guidelines.  See United States v. Pierce,                                             ___ _____________    ______            60  F.3d  886,  892  (1st Cir.  1995)  (analyzing  Guidelines            provisions in  concluding  that  state  disposition  on  nolo                                                                     ____            contendere plea constituted "conviction"), petition for cert.            __________                                 ________ ___ _____            filed, (Oct. 19, 1995) (No. 95-6474).            _____                      After  carefully  analyzing the  Guideline language            and commentary, we held in Pierce that the guilt-establishing                                       ______            event,  such as  a  guilty  plea,  trial,  or  plea  of  nolo                                                                     ____            contendere,  "determines whether  and when  there has  been a            __________            countable `conviction'" for  purposes of the  Career Offender                                         -16-                                          16            guideline.   60 F.3d at  892.   We concluded  that a  Florida            offense, to  which the defendant pleaded  nolo contendere and                                                      ____ __________            that  resulted in  a  "withheld adjudication,"  constituted a            countable "conviction" under  the Career Offender  guideline.            Id.   Similarly,  Lindia's nolo  contendere  plea, subsequent            ___                        ____  __________            adjudication,  and   deferred  sentence  also   constitute  a            "conviction" for  career offender purposes.   See also United                                                          ___ ____ ______            States  v.  Cuevas,  75  F.3d  778,  780-83 (1st  Cir.  1996)            ______      ______            (holding,   under  federal   standards,  that   Rhode  Island            disposition  on nolo  contendere plea  is a  "conviction" for                            ____  __________            immigration law purposes).                      Moreover,  there is  little  doubt  that  the  1986            charge would constitute a  conviction under Rhode Island law.            In Patrone, we  explained that under R.I.  Gen. Laws   12-18-               _______            3(a),  a   nolo  contendere   plea  will  not   constitute  a                       ____  __________            "conviction  for  any  purpose"   if  the  court  places  the            defendant on probation and the defendant completes  probation            without violating its terms.  948 F.2d at 816, n.1.   Section            12-18-3(b)  further provides,  however, that  subdivision (a)            "shall  not apply to  any person who is  sentenced to serve a            term  in the adult correctional institution or who is given a            suspended or deferred sentence in addition to probation."  As            explained  in Patrone,  we interpret  this provision  to mean                          _______            that  a nolo contendere plea followed  by a deferred sentence                    ____ __________                                         -17-                                          17            (or other sentence  described in   12-18-3(b)) constitutes  a            "conviction" under Rhode Island law.  See id.                                                  ___ ___                      Lindia  contends that  our  analysis in  Patrone is                                                               _______            inapplicable,  reading much into   12-18-3(b)'s language: "or            deferred  sentence  in  addition  to   probation."  (emphasis                                __  ________  __   _________            added).   Lindia claims that he was not placed on "probation"            for the 1986 charge,  rather, he "entered probationary status            based solely on an agreement  with the Rhode Island  Attorney            General."  The record before this court is less than clear on            this issue.   It is  apparent, however,  that although  Rhode            Island law  provides for  a special circumstance  in which  a            nolo contendere plea and  successful completion of  probation            ____ __________            will not constitute a  conviction, that circumstance will not            apply  where  the  defendant  is also  given  a  sentence  of            imprisonment, or a suspended or deferred sentence.   See R.I.                                                                 ___            Gen. Laws   12-18-3.  Thus, even assuming that Lindia was not            placed on  probation,  the controlling  fact is  that he  was            given  a deferred  sentence, thus  rendering the  benefits of              12-18-3(a)  inapplicable.    Lindia   cites  to  no   other            applicable Rhode Island  law in which a nolo  contendere plea                                                    ____  __________            will not constitute a conviction.8                                            ____________________            8.  R.I. Gen.  Laws   12-19-19 provides, inter  alia, that if                                                     _____  ____            the  court  defers sentencing  on a  plea  of guilty  or nolo                                                                     ____            contendere, it may  actually impose a sentence  only within a            __________            certain  time  period  unless  the  defendant   is  otherwise            sentenced to  prison during that  period, in  which case  the            time  for imposing sentence  is extended.   This section says            nothing about  whether  or  not the  plea,  followed  by  the                                         -18-                                          18                      Under  both  federal and  state law  standards, the            district  court properly  counted Lindia's  1986 charge  as a            conviction for purposes of the career offender adjudication.            C.  Authority to  Depart Downward Based on Overrepresentation            _____________________________________________________________            in Career-Offender Criminal History Category            ____________________________________________                      Lindia contends that  the criminal history category            of  VI, calculated  pursuant to  his career  offender status,            significantly  overrepresents  his  criminal  history.    The            district court  ruled  that nothing  in  the  career-offender            statute, 28 U.S.C.   994(h), or in the Guidelines permitted a            downward departure  on this  basis.9  The  First Circuit  has            not yet decided the  permissibility of such a departure  in a            career offender case, see United States v. Morrison, 46  F.3d                                  ___ _____________    ________            127,  129  (1st  Cir.  1995), although  many  of  our  sister            circuits have answered this  question in the affirmative, see                                                                      ___            e.g.,  United  States v.  Spencer,  25 F.3d  1105  (D.C. Cir.            ____   ______________     _______            1994);  United States v. Rogers, 972 F.2d 489 (2d Cir. 1992);                    _____________    ______            United States  v. Bowser,  941 F.2d  1019  (10th Cir.  1991);            _____________     ______            United States v. Lawrence, 916 F.2d 553, 554 (9th Cir. 1990).            _____________    ________                      Pursuant  to the  Sentencing  Reform  Act of  1984,            commencing  at 18  U.S.C.    3551, 28  U.S.C.    991-998  (as                                            ____________________            deferred sentence, constitutes a  "conviction."  Based on the            structure of    12-18-3, however,  it is apparent  that Rhode            Island treats nolo contendere pleas as convictions unless the                          ____ __________                      ______            defendant meets the provisions of   12-18-3.            9.  The court did not  indicate in any way whether  or not it            would depart if it had the authority to do so.                                         -19-                                          19            amended), the United States Sentencing Commission promulgates            Sentencing Guidelines that  establish presumptive  sentencing            ranges for  categories of defendants and  offenses.  Williams                                                                 ________            v.  United States,  503 U.S.  193, 195-96  (1992).   Under 28                _____________            U.S.C.   994(h),                      The  Commission  shall  assure  that  the                      guidelines  specify a sentence  to a term                      of  imprisonment at  or near  the maximum                      term   authorized   for   categories   of                      defendants  in  which  the  defendant  is                      eighteen years old or older and [has been                      convicted  of a  violent crime  or felony                      drug  offense and  has a  least two  such                      prior convictions].            This  statute  is  meant  to  ensure  that  the  Commission's            Guidelines  provide  that certain  felony-recidivists receive            maximum authorized sentences.   See United States v. Labonte,                                            ___ _____________    _______            70  F.3d 1396,  1404 (1st  Cir. 1995).   The  Career Offender            guideline,    U.S.S.G.      4B1.1,   is    the   Commission's            implementation  of   994(h).   See U.S.S.G.   4B1.1, comment.                                           ___            (backg'd);  Labonte, 70  F.3d  at 1400-1401.   The  guideline                        _______            establishes the career-offender presumptive  sentencing range            by  setting  forth  enhanced   total  offense  levels  --  by            reference  to offense  statutory maximums10  -- and  provides            that  "[a] career  offender's  criminal  history category  in                                            ____________________            10.  The   First  Circuit   has   upheld   the   Commission's            interpretation  that  "maximum  term"   in    994(h)  is  the            applicable  unenhanced  statutory  maximum.    See  generally                                                           ___  _________            LaBonte, 70 F.3d 1396.            _______                                         -20-                                          20            every case shall be Category VI," the highest category level.            U.S.S.G.   4B1.1.                      The  Sentencing  Reform  Act permits  a  sentencing            court to  depart from  a  Guidelines' presumptive  sentencing            range "only when  it finds that `there  exists an aggravating            or mitigating circumstance  of a  kind, or to  a degree,  not            adequately  taken  into   consideration  by  the   Sentencing            Commission in formulating  the guidelines.'"   Williams,  503                                                           ________            U.S. at 198 (quoting 18 U.S.C.   3553(b)); see also 28 U.S.C.                                                       ___ ____              991(b)(1)(B)  (providing  that  the  Commission's  purposes            include   "maintaining   sufficient  flexibility   to  permit            individualized  sentences  when  warranted by  mitigating  or            aggravating   factors  not   taken   into   account  in   the            establishment    of    general    sentencing    guidelines").            Accordingly, the  Guidelines provide that "a  case that falls            outside the linguistically applicable guideline's `heartland'            is  a candidate for departure."  United States v. Rivera, 994                                             _____________    ______            F.2d  942, 947  (1st  Cir. 1993);  see  U.S.S.G. Ch.I,  Pt.A,                                               ___            intro.  comment. (4)(b).   Such  cases are  deemed "unusual,"            and, by definition, the Commission (with some exceptions) has            not  "adequately"  considered  them  within  the  meaning  of              3553(b).    Id.    As  Justice  (then  Chief  Judge) Breyer                          ___            thoroughly  explained  in  Rivera,  the  exceptions  to  this                                       ______            principle  are  those  several  factors  the  Commission  has            explicitly  rejected  as permissible  grounds  for departure.                                         -21-                                          21            Id. at 948-949  (also explaining  that encouraged  departures            ___            are likely "reasonable" while discouraged  departures require            "unusual or  special" circumstances); see  also Williams, 503                                                  ___  ____ ________            U.S.  at 200  (concluding that  departure based  on expressly            rejected factorconstitutesincorrect applicationofGuidelines).                      The  Application  Instructions for  the Guidelines,            set  forth   in  U.S.S.G.    1B1.1,  explain   that  after  a            sentencing   court   determines   the   offense   level,  the            defendant's  criminal history  category,  and the  applicable            guideline  range, it  then refers  to certain  provisions for            "Specific  Offender Characteristics and  Departures" and "any            other policy  statement or commentary in  the guidelines that            might  warrant  consideration  in   imposing  sentence."    A            guidelines policy statement,  U.S.S.G.   4A1.3,  specifically            addresses  the  adequacy  of  a  criminal-history  category's            reflection of a defendant's past criminal conduct.  See also,                                                                ___ ____            U.S.S.G.  Ch.5, Pt.H,  intro.  comment. and    5H1.8 (stating            that criminal history is  relevant in determining if sentence            should be outside applicable guideline range).  Section 4A1.3            explicitly recognizes  that  a defendant's  criminal  history            category may "significantly over-represent[]  the seriousness            of a defendant's criminal history or the likelihood that  the            defendant will  commit  further crimes."   U.S.S.G.    4A1.3,            (policy statement).  In such cases, the sentencing  court may            consider a downward departure.  Id.  We agree with our sister                                            ___                                         -22-                                          22            circuits (that  have considered the issue)  that a sentencing            court  may invoke   4A1.3 to depart downward from the career-            offender  category   if  it  concludes   that  the   category            inaccurately   reflects   the  defendant's   actual  criminal            history,  within the  meaning of  18 U.S.C.    3553(b).   See                                                                      ___            e.g., United States v. Spencer, 25 F.3d 1105, 1113 (D.C. Cir.            ____  _____________    _______            1994);  United  States v. Rogers, 972 F.2d  489, 494 (2d Cir.                    ______________    ______            1992);  United States v.  Bowser, 941  F.2d 1019,  1024 (10th                    _____________     ______            Cir. 1991); United States  v. Lawrence, 916 F.2d 553,  554-55                        _____________     ________            (9th Cir. 1990).                      The district court  interpreted Congress's  mandate            in    994(h) and  the  Commission's implementation,  U.S.S.G.              4B1.1,   as   precluding   departure  on   the   basis   of            overrepresentation  in all  cases in  which the  defendant is            assigned  a criminal history category of  VI under the Career            Offender guideline.  Section  994(h), however, is directed to            the Commission's  duty to formulate  guidelines pertaining to            categories of defendants, not to sentencing courts faced with            individual defendants.  As  explained above, Congress and the            Commission   have  rejected   rigid  sentencing   schemes  by            empowering  the sentencing  court  to  consider factors  that            might  comprise an  "unusual" case.   The Commission  has not            designated as a "forbidden departure"  the overrepresentation            of a criminal history category in career offender  cases, see                                                                      ___            Rivera, 994 F.2d at  948-49, and "there is nothing  unique to            ______                                         -23-                                          23            career offender  status which would strip  a sentencing court            of its  `sensible  flexibility' in  considering  departures."            Rogers, 972 F.2d at 493.            ______                        A   district   court   that  considers   numerous            Guidelines cases has a  "special competence" to determine the            "ordinariness"  or   "unusualness"  of  a   particular  case.            Rivera, 994 F.2d at 951.  When faced with a departure  motion            ______            in  a career-offender case,  as in  other cases,  the court's            experience and  unique perspective will allow it to decide if            the case before it falls outside the guideline's "heartland,"            warranting departure.   See Rivera, 994 F.2d at  952 (holding                                    ___ ______            that appellate court reviews "unusualness" determination with            "respect"  for sentencing  court's "superior  `feel' for  the            case"  (citation omitted)).   Because  the district  court in            this case did not consider whether or not the career-offender            criminal    history    category   overrepresented    Lindia's            circumstances,  so as to  make his case  "unusual," we remand            for its determination of this issue.11                                         III.                                         III.                                         ____                                      Conclusion                                      Conclusion                                      __________                      For  the  foregoing  reasons, we  affirm  in  part,                                                        ______            vacate  in part  and remand  for proceedings  consistent with            ______               ______                                            ____________________            11.  The government, both in its brief  and at oral argument,            conceded that the court  had the authority to depart  on this            basis  and   stated  that,   should  we  agree,   remand  for            resentencing would be appropriate.                                         -24-                                          24            this opinion.                                         -25-                                          25
