United States v. Curet, 2012 WL 75392

Curet pled guilty to three counts of conspiracy to distribute cocaine base and distribution within 1,000 feet of a school, pursuant to an indictment from December 12, 2007.
An information under 21 U.S.C. § 851 was filed in December 2007 to rely on a 2005 Massachusetts conviction (possession with intent to distribute near a school) to impose a ten-year mandatory minimum.
The initial PSR (Dec. 2008) treated Curet as a career offender based on three predicates: a 2003 youthful-offender adjudication, a 2003 guilty-filed disposition for resisting arrest, and the 2005 drug conviction.
Sentencing occurred February 2, 2010, with a below-guideline 174-month sentence, after the government and Curet largely stipulated to the career-offender calculation.
On appeal, Curet challenged (i) failure to conduct a § 851 hearing/colloquy, (ii) misclassification as a career offender, and (iii) retroactive application of the Fair Sentencing Act and related amendments.
The First Circuit held that the Massachusetts guilty-filed disposition is a diversionary disposition countable as a sentence and a conviction for career-offender purposes, and that the youthful-offender plea was not a valid predicate; the FSA does not apply retroactively to Curet.

Issue	Plaintiff's Argument	Defendant's Argument	Held
§ 851 hearing/colloquy required?	Curet argues the district court erred by not holding a § 851 colloquy.	Curet's counsel waived the issue; any colloquy was unnecessary.	Waiver and harmless error; failure to conduct a colloquy is not reversible here.
Are guilty-filed dispositions convictions for career offender purposes?	Massachusetts guilty-filed disposition may count as a conviction under federal guidelines.	Massachusetts law does not treat guilty-filed dispositions as convictions; conflict with McGhee.	Guilty-filed dispositions count as diversions that are sentences and thus convictions for career-offender purposes.
Is the 2003 youthful-offender adjudication a valid predicate?	Youthful-offender adjudications can serve as predicates under the guidelines.	McGhee holds Massachusetts youthful-offender adjudications are not adult convictions for career-offender purposes.	Invalid predicate; only two valid predicates remain: 2005 conviction and 2003 guilty-filed disposition.
Retroactive application of the Fair Sentencing Act (FSA) and amendments?	FSA or its guideline amendments might reduce Curet's sentence retroactively.	FSA does not apply to those sentenced before Aug. 3, 2010; guideline amendments are not retroactive to alter career-offender status.	FSA and its amendments not retroactive to Curet.

Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010) (mandatory prerequisites to obtaining punishment based on prior convictions)
United States v. Dickerson, 514 F.3d 60 (1st Cir. 2008) (harmless/ plain error review for § 851(b) colloquy)
United States v. Henry, 519 F.3d 68 (1st Cir. 2008) (§ 851 colloquy harmless error; notice purpose of § 851(b))
United States v. Espinal, 634 F.3d 655 (2d Cir. 2011) (notice purpose of § 851(b))
United States v. Lindia, 82 F.3d 1154 (1st Cir. 1996) (federal law governs conviction status for career-offender purposes)
United States v. McGhee, 651 F.3d 153 (1st Cir. 2011) (Massachusetts youthful-offender adjudications not career-offender predicates)
United States v. Fraser, 388 F.3d 371 (1st Cir. 2004) (counting diversionary dispositions under § 4A1.2(f))
United States v. DiPina, 230 F.3d 477 (1st Cir. 2000) (diversionary dispositions counted under § 4A1.2(f))
United States v. Pierce, 60 F.3d 886 (1st Cir. 1995) (convictions counting under § 4B1.2 and related definitions)
United States v. Weekes, 611 F.3d 68 (1st Cir. 2010) (crime of violence/ career-offender predicates)