
USCA1 Opinion

	




          September 11, 1995    [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                          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-
