
September 11, 1995    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 94-1954 

                        UNITED STATES,

                          Appellee,

                              v.

                     FREDERICK J. BONAMO,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Rya W. Zobel, U.S. District Judge]                                                              

                                         

                            Before

                    Cyr, Boudin and Lynch,
                       Circuit Judges.                                                 

                                         

Frederick J. Bonamo on brief pro se.                               
Colleen M. Rooney on brief for appellant.                             
Donald K.  Stern, United States  Attorney, and  Michael J. Pelgro,                                                                             
Assistant United States Attorney, on brief for appellee.

                                         

                                         

          Per Curiam.  Defendant Frederick  J. Bonamo appeals                                

his  sentence  under  the  Sentencing  Guidelines.    He  was

sentenced  to   nine  years  imprisonment   and  three  years

supervised release  following a  valid plea agreement.   This

agreement, made under Fed.  R. Crim. P. 11(e)(1)(C), included

a specific sentence of 10 years incarceration and three years

supervised release,  and provided  that the  government would

move to dismiss  a pending  indictment.  As  a result of  the

agreement,  defendant pled guilty  to an information charging

him with violating 18 U.S.C.   922(d)(3) and 18 U.S.C.   371.

By  so doing,  he avoided  going to  trial on  the indictment

which would have  exposed him to a  15-year mandatory minimum

sentence  under the  Armed Career Criminal  Act, 18  U.S.C.  

924(e).   The  government argues  that defendant's  appeal is

barred by 18 U.S.C.   3742(c)(1).

          A defendant may appeal a final sentence pursuant to

  3742(a).  When a defendant agrees to a negotiated plea that

contains  a specific sentence, however,   3742(c)(1) provides

that  he  or  she "may  not  file  a notice  of  appeal under

paragraph  (3) or (4)  of subsection (a)  unless the sentence

imposed  is  greater than  the  sentence  set forth  in  such

agreement. . . ."1  Obviously, defendant's sentence is  lower

                                                    

1.  Section  3742(a)(3)  permits  a  defendant  to  appeal  a
sentence greater  than the  applicable guideline range  and  
3742(a)(4) permits  the  appeal  of  a  plainly  unreasonable
sentence for an offense for which there is no guideline.

than the 10-year sentence  stated in the plea agreement.   We

therefore have  no  jurisdiction to  review  this  sentence.2

See United States  v. Prieto-Duran, 39 F.3d  1119, 1120 (10th                                              

Cir. 1994).

          Defendant attempts to avoid  the ban contained in  

3742(c) by arguing that his sentence was imposed in violation

of the law or  as the result  of an incorrect application  of

the  sentencing  guidelines   --  appeals   permitted  by    

3742(a)(1) and (a)(2) respectively.  His claim is premised on

the  fact that  his sentence  represents an  upward departure

from  the guideline range for  the offenses to  which he pled

guilty.   Specifically, he  contends that the  district court

erred in basing  the enhanced sentence  on convictions as  to

which he had  had his  civil rights restored  pursuant to  18

U.S.C.   921(a)(20) (a "conviction . . . for which a person .

. . has had civil rights  restored shall not be considered  a

conviction").   We  reject  this argument  for the  following

reasons.

                                                    

2.  The  government could  have filed  an appeal  because the
sentence is  lower than the one  to which it had  agreed.  18
U.S.C.   3742(c)(2).   See, e.g., United States v.  Mukai, 26                                                                     
F.3d 953 (9th Cir. 1994)  (government appealed the refusal by
the  district court  to  allow it  to  withdraw from  a  plea
agreement when  the court imposed a sentence  lower than that
contained in  the agreement); United States  v. Skidmore, 998                                                                    
F.2d 372  (6th Cir.  1993) (government appealed  the district
court's  imposition  of  a   sentence  which  did  not  order
forfeiture  as  the  parties  had specified).    Because  the
government  does not pursue  an appeal, however,  we need not
address the correctness of the sentence in this case.

                             -3-

          First, no matter how defendant  phrases this issue,

it still concerns an appeal of a sentence within   3741(a)(3)

--  that is, one that is "greater than the sentence specified

in  the  applicable  guideline  range."    The  fact  is that

defendant received the benefit of his bargain and avoided the

possibility of  a 15-year sentence.   "This is  precisely the

type  of appeal which is  barred by 18  U.S.C.   3742(c)(1)."

Prieto-Duran, 39 F.3d at 1120 (where a sentence is within the                        

plea agreement, no appeal  will lie even though the  sentence

is an upward departure from the guideline range).

          Second, the plea  agreement provided for  an upward

departure  on the  ground that  defendant's  criminal history

category under the Guidelines  did not adequately reflect the

seriousness of his  past criminal conduct.   The parties thus

agreed to an upward departure based on   4A1.3:

          If  reliable  information indicates  that
          the  criminal  history category  does not
          adequately reflect the seriousness of the
          defendant's past criminal conduct  or the
          likelihood that the defendant will commit
          other  crimes,  the  court  may  consider
          imposing  a  sentence departing  from the
          otherwise applicable guideline range.

Such  information includes  "prior  sentence(s) not  used  in

computing the criminal history category."    4A1.3(a).

          Defendant's argument is  premised on the definition

of  a conviction contained in   921(a)(20) and referred to in

U.S.S.G.    2K2.1  (calculating  the base  offense level  for

firearms violations).  The problem with this position is that

                             -4-

  4A1.3 is  not limited  to "past convictions."   Rather,  it

refers  to "past criminal  conduct."   Certainly, defendant's                                              

past convictions are evidence of criminal conduct.  Moreover,

there  is  nothing  in  the  Guidelines  or  elsewhere  which

indicates  that the  kind  of criminal  conduct  a court  may

consider under    4A1.3 is  restricted in  the way  defendant

suggests.   Thus,  the  district court  did  not err  in  the

calculation of the upward departure defendant received.

          Defendant's other claim is that the  district court

failed to  state with sufficient specificity  the grounds for

the upward departure  as required by 18 U.S.C.    3553(c)(2).

We  disagree.    First,  the  plea  agreement  obligated  the

district  court  to  enhance  defendant's  sentence  and  the

agreement specified  the reason  for the upward  departure --

defendant's  criminal  history  category did  not  adequately

reflect  the seriousness of his  past criminal conduct or the

likelihood that  he  would continue  to commit  crimes.   The

district  court  not only  iterated  this  at the  sentencing

hearing, but also observed that defendant often ended up back

in  prison after being released, that the absence of criminal

activity usually  was because defendant was  incarcerated and

that  there  were other  criminal  charges  currently pending

against  defendant.   We  believe that  this  is a  "reasoned

justification" for  its decision and plainly  is adequate for

appellate  review.  See United States v. Emery, 991 F.2d 907,                                                          

                             -5-

913 (1st Cir. 1993)  (the district court need not  explain in

"mathematical or pseudo-mathematical  terms each  microscopic

choice made in arriving at  the precise sentence").  Further,

it is obvious from the record as a whole in this case why the

court  ordered an  upward departure.   See  United States  v.                                                                     

Quinones, 26 F.3d 213, 219 (1st Cir.  1994) (we will uphold a                    

departure  decision  where  "an  explanation  can  fairly  be

implied from the record as a whole").

          The judgment  of  the district  court is  summarily                                                                         

affirmed.  See Local Rule 27.1.                          

                             -6-
