
USCA1 Opinion

	




          September 27, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1384                                                UNITED STATES,                                      Appellee,                                          v.                                  ANTHONY DIPRIZIO,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                         Torruella and Selya, Circuit Judges.                                              ______________                                 ___________________               Annemarie Hassett on brief for appellant.               _________________               A. John  Pappalardo, United States Attorney,  and Stephen A.               ___________________                               __________          Higginson, United States Attorney, on brief for appellee.          _________                                  __________________                                  __________________                 Per Curiam.    Appellant Anthony  DiPrizio  appeals  his                 __________            sentence of 24 months imprisonment  for credit card fraud and            aiding and abetting, in violation of 18 U.S.C.     1029(a)(2)            & 2.  We vacate the sentence of the district court and remand            for resentencing.                 On October 27, 1992, DiPrizio pled guilty, pursuant to a            plea agreement, to one count of a three count indictment.  He            was sentenced on January 25,  1993.  At that time, the  court            determined that the appropriate  offense level was 10.    The            court also found that  appellant's criminal history score was            13 and that  he thus had a criminal history  category of VI.             The  court sentenced  DiPrizio at  the low  end of  the 24-30            month sentencing  range.   Appellant contends that  the court            erred in  its determination of the  criminal history category            because (1) it relied on a  conviction too old to be  counted            in the criminal history score and (2)  it improperly included            an   enhancement,  pursuant   to   U.S.S.G.   4A1.1(d),   for            appellant's  having committed  the instant  offense  while "a            violation  warrant from  a  prior  sentence is  outstanding."            U.S.S.G.      4A1.1,  comment.   (n.4)  (Nov.  1992).     The            government,  noting  that  the  government,  the  Presentence            Report,  and   the   court,  had   inadvertently   overlooked            appellant's  argument made  in  the district  court, concedes                                         -2-            that appellant is  correct in his  first contention and  that            the appropriate criminal history category is V.                 In 1977  DiPrizio received a suspended  sentence and two            years  probation for controlled substances offenses.  Section            4A1.1(c) of the United States Sentencing Guidelines instructs            that,  where no  sentence  of imprisonment  was imposed,  the            court is to  add one point to the  criminal history score for            each  prior sentence up  to a total  of four points.   In the            instant  case,  the  court  added  one  point  to  DiPrizio's            criminal history  score for this conviction.   The commentary            clearly   states,  however,  that,  under     4A1.1(c),  "[a]            sentence imposed more than ten years prior to the defendant's            commencement  of   the  instant  offense  is   not  counted."            U.S.S.G.  4A1.1,  comment. (n.3).  Since  the instant offense            commenced  on August 22, 1991, more than ten years had passed            since the 1977 sentence was imposed.  It thus should not have            been counted in determining DiPrizio's criminal history.                 We  do  not  reach  appellant's contention  that  he  is            entitled  to  a further  reduction  in  his criminal  history            score.   Such  a  reduction  would  have  no  effect  on  his            sentencing  range.   Given  the one  point  reduction in  his            criminal  history score due to the error in counting the 1977            conviction, appellant's criminal history score is  twelve and            his  criminal history category is V.  Even if the enhancement            pursuant  to   4A1.1(d) were  incorrect,  appellant would  be                                         -3-            entitled  only  to  a one  point  reduction  in his  criminal            history score  and thus  his criminal history  category would            still be V.1                 Appellant's sentence is vacated and the case is remanded                                         _______                 ________            for resentencing.                                            ____________________            1.    Appellant's  criminal history  score was  increased two            points pursuant to  4A1.1(d).   However, appellant  concedes,            that if the enhancement  were found improper, the  net effect            would only be a one point reduction in criminal history score            since the deduction of  these two points would require  a one            point increase under  4A1.1(e).                                          -4-
