United States v. CuretUnited States v. Curet
Alex Curet appeals his below-guidelines career offender sentence of 174 months after a plea of guilty to three counts of conspiracy to distribute cocaine base and distribution of cocaine base within 1,000 feet of a school. His appeal raises an issue that we have not resolved before: whether a Massachusetts state-court “guilty-fíled” disposition qualifies as a “conviction” for purposes of the career offender guidelines, U.S.S.G. § 4B1.1(a)(3). We hold that it does, and that federal law controls the issue. We affirm Curet’s sentence.
I.
Alex Curet and a co-defendant were in-dieted on December 12, 2007. Count one charged that, beginning on September 25, 2007, and continuing until at least October 3, 2007, Curet conspired with others to distribute at least five grams of cocaine base in Boston, in violation of
On December 13, 2007, the government filed an information to establish that Curet had a prior state felony conviction in April 2005 for possession of a class D substance with intent to distribute and of a drug violation near a school, in violation of Mass. Gen. Laws ch. 94C, §§ 32C, 32J. This § 851 information,
see
Curet initially pled not guilty to all three counts of the indictment. On October 27, 2008, at a change of plea hearing, Curet pled guilty to all three counts. Sentencing was initially scheduled for January 29, 2009, but was postponed several times.
On December 30, 2008, the initial presentence report (PSR) found that Curet (A) had a base offense level of 24, because he was responsible for distribution of 13.95 grams of cocaine base, and (B) was a career offender under the guidelines, because he had at least two prior felony convictions: (1) a 2003 state-court “youthful offender” adjudication of distribution of class B substances and distribution of a controlled substance in a school zone; (2) a 2003 state-court “guilty-fíled” disposition for resisting arrest, which took place when Curet was seventeen years old; and (3) the April 2005 state-court conviction for distribution of class D substances that was outlined in the
The government moved to strike the notice of intent the same day, for failure to satisfy the statutory requirement that “[a] person claiming that a conviction alleged in the information was obtained in violation of the Constitution of the United States shall set forth his claim, and the factual basis therefor, with particularity in his response to the information.”
On February 13, 2009, Curet objected to the PSR, challenging the career-offender designation, but solely on the basis that the 2005 drug conviction was constitutionally invalid.
The next day, Curet challenged the
On December 4, 2009, the government filed its sentencing memorandum, recommending a below-guideline sentence of 174 months. On January 19, 2010, the government filed a supplemental response regarding the
Sentencing took place on February 2, 2010. At the outset of the hearing, the prosecutor explained that he had discussed the
The district court found, as had the PSR, that after consideration of the career offender provisions, Curet was subject to a total career offender offense level of 35. Curet’s attorney agreed with these calculations.
The court then found that Curet had three state career offender predicates: the 2003 youthful offender adjudication, the 2003 resisting arrest guilty-filed disposition, and the 2005 drug conviction. Curet’s attorney did not object to the counting of all three of these convictions as career offender predicates. The court then found, as had the PSR, that Curet’s guideline range was 292 to 365 months, to which there was again no objection.
The district court then sentenced Curet to the 174 months recommended by the government, varying downward from the guidelines. Curet timely appealed.
II.
Curet raises three challenges to his sentence: (1) that the district court committed reversible error in failing to conduct a hearing and colloquy regarding the
A.
The
Curet argues that the district court was required to conduct a hearing pursuant to
If the United States attorney files an information under this section, the court shall after conviction but before pronouncement of sentence inquire of the person with respeét to whom the information was filed whether he affirms or denies that he has been previously convicted as alleged in the information, and shall inform him that any challenge to a prior conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence.
After the colloquy, “[i]f the person denies any allegation of the information of prior conviction, or claims that any conviction alleged is invalid, he shall file a written response to the information.”
In this case, Curet initially filed a response under
As a result, the court was not required to “hold a hearing to determine any issues raised by the response,” as required by
We review failure to conduct a
To demonstrate plain error, Curet must show that “(1) there is an error; (2) the error is plain or obvious; (3) the error ‘affected [Curet’s] substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings;’ and (4) ‘the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ”
United States v. De Jesús-Viera,
As a matter of statutory construction, the statute itself does not make a violation of
We have held that “[t]he mere failure to conduct a
Moreover, a primary purpose of
Here, the fact that Curet had filed a response under
While there was no plain error here, the district court did have an obligation to conduct an inquiry under
B. Career Offender Classification
The legal interpretation of the guidelines at issue here is reviewed de novo.
To be deemed a career offender, a defendant must, among other requirements, have “at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a)(3). Curet argues that he did not have two valid predicate convictions, and was therefore improperly classified as a career offender under the sentencing guidelines.
Curet’s career offender classification was originally based on three prior convictions: (1) the 2005 state-court conviction for distribution of class D substances that was outlined in the § 851 information, (2) a 2003 state-court “youthful offender” adjudication of distribution of class B substances and distribution of controlled substance in a school zone, and (3) a 2003 state-court “guilty-filed” disposition for resisting arrest, which took place when he was age seventeen.
To the extent that Curet raises any challenge to the use of the 2005 state conviction as a predicate offense, that challenge is based on the § 851 argument, which was rejected above. 5 As a result, that conviction is a valid predicate offense.
Curet’s claim that the 2003 youthful offender adjudication is not a valid predicate offense is correct, as the government concedes, under our decision in
United States v. McGhee,
As a result, the validity of Curet’s career offender classification turns on whether his 2003 guilty-filed disposition is a valid career offender predicate. Curet raises two arguments as to why it is not a valid predicate. First, Curet contends that under McGhee and the relevant language of the guidelines, state law governs whether the disposition is a conviction within the meaning of the guidelines. Curet reasons that because Massachusetts does not consider guilty-filed dispositions to be convictions, the disposition may not be deemed a conviction for purposes of the guidelines. Second, Curet argues that, even if federal law governs whether the guilty-filed disposition is a conviction, the relevant portions of the guidelines indicate that such a disposition is not a conviction.
Both of Curet’s arguments fail; the district court did not err in counting Curet’s guilty-filed disposition as a career offender predicate conviction under the guidelines. 6
We explain the nature of Curet’s guilty-filed disposition under Massachusetts law.
1. Massachusetts Guilty-Filed Dispositions
The effect of a guilty-filed disposition in Massachusetts is to suspend sentencing of
It has long been a common practice in this Commonwealth, after verdict of guilty in a criminal case, when the court is satisfied that, by reason of extenuating circumstances, or of the pendency of a question of law in a like case before a higher court, or other sufficient cause, public justice does not require an immediate sentence, to order, with the consent of the defendant and of the attorney for the Commonwealth, and upon such terms as the court in its discretion may impose, that the indictment be laid on file....
Commonwealth v. Simmons,
The practice of placing cases on file has been explained as “a predecessor to modern probation,” because it “allow[s] the would-be sentencing judge discretion in circumstances adjudged to be unduly harsh.”
Id.
at 554-55. When a guilty-filed disposition occurs, “the court retains the ability, at any time, to remove the indictment from the file,” and to sentence the defendant.
Id.
at 557. In its most recent decision addressing this practice, the Supreme Judicial Court (SJC) explained that “the purpose of placing a case ‘on file’ is to suspend sentencing indefinitely,
not to prevent a guilty finding from entering on the record.” Powell,
In this case, the PSR clearly states that the disposition was “Guilty, Filed,” and that was not challenged. Curet now asserts that “there is no evidence in the record that Mr. Curet in fact pleaded guilty or nolo contendere,” but there was no objection to the PSR’s description of
The PSR also makes clear that Curet’s guilty-filed disposition took place in the Roxbury District Court. The government asserts, and Curet concedes, that the fact that Curet was proceeded against in district court means that he was proceeded against as an adult, even though he was seventeen at the time of the offense.
See
2. The Claim that State Law Controls
Curet’s first argument is that state law controls the determination of whether a disposition is an “adult conviction” within the meaning of the guidelines. Curet’s argument hinges upon the application note defining a “prior felony conviction”:
“Prior felony conviction” means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed. A conviction for an offense committed at age eighteen or older is an adult conviction. A conviction for an offense committed prior to age eighteen is an adult conviction if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted (e.g., a federal conviction for an offense committed prior to the defendant’s eighteenth birthday is an adult conviction if the defendant was expressly proceeded against as an adult).
U.S.S.G. § 4B1.2 cmt. n. 1 (emphasis added). Curet argues that under the language of this application note, in order for a conviction for an offense committed under the age of eighteen to be an adult conviction, it must be “classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted.” Curet argues that because Massachusetts law does not define guilty-filed dispositions as convictions, his guilty-filed disposition is not a conviction within the meaning of the guidelines.
This argument fails. As a textual matter, the application note itself presupposes that there is an independent, federal definition of the term conviction, and the purpose of looking to the law of the jurisdiction of conviction is simply to determine whether the conviction is adult in nature.
There is no dispute here that under state law, Curet was treated as an adult. The note, which is addressed to that issue, does not assist his argument that state law governs what is a conviction. The application note states that
“[a] conviction
for an offense committed prior to age eighteen
is an adult conviction if
it is classified as an adult conviction under the laws of the ju
The guidelines provide detailed guidance on what constitutes a “conviction.” Application note 3 provides that “[t]he provisions of § 4A1.2 (Definitions and Instructions for Computing Criminal History) are applicable to the counting of convictions under § 4B1.1.”
Id.
§ 4B1.2 cmt. n. 3. This application note “directs that ‘convictions’ of a certain type be counted, and other guidelines and commentary which elaborate upon the events to be counted essentially define that which is a conviction.”
United States v. Pierce,
Second, Curet’s reading is undermined by the remainder of the application note. The sentence immediately prior to the sentence Curet relies on provides that “[a] conviction for an offense committed at age eighteen or older is an adult conviction,” with no reference to state law. U.S.S.G. § 4B1.2 cmt. n. 1. This sentence reinforces that the question of what constitutes a “conviction” is separate from, and logically prior to, the question of whether such a conviction is an “adult” conviction.
Moreover, interpreting the guidelines in the manner Curet advocates would result in an inconsistent definition of conviction within this application note. State law would govern whether a particular disposition of a case constitutes a “conviction” for those under the age of eighteen, but the guidelines would determine whether that disposition is a “conviction” for those over eighteen. We see no reason why the guidelines would take such an inconsistent approach regarding what constitutes a conviction, and do not read them that way.
Third, our case law holds that “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,” not state law.
United States v. Lindia,
Our decision in
McGhee
is not to the contrary. There, we addressed the question of whether a Massachusetts “youthful offender” conviction of someone under the age of eighteen was an “adult conviction” under the guidelines.
3. Curet’s Argument that the Guidelines Do Not Deem Guilty-Filed Dispositions to Be Convictions
Curet argues that, even if federal law under the guidelines governs what constitutes a conviction, the relevant guideline provisions require that his guilty-filed disposition not be deemed a “conviction,” and thus may not serve as a career offender predicate. This belated argument also fails. 10
The career offender guidelines provide that the provisions of U.S.S.G. § 4A1.2 apply to the counting of convictions for career offender purposes. U.S.S.G. § 4B1.2 cmt. n. 3. Curet’s argument relies on § 4A1.2(d). This section is entitled “Offenses Committed Prior to Age Eighteen,” and provides, in full:
(1) If the defendant was convicted as an adult and received a sentence of imprisonment exceeding one year and one month, add 3 points under § 4Al.l(a) for each such sentence.
(2) In any other case,
(A) add 2 points under § 4Al.l(b) for each adult or juvenile sentence to confinement of at least sixty days if the defendant was released from such confinement within five years of his commencement of the instant offense;
(B) add 1 point under § 4Al.l(c) for each adult or juvenile sentence imposed within five years of the defendant’s commencement of the instant offense not covered in (A).
Id. § 4A1.2(d).
Curet argues that subsection (2)(B) is the only provision that could apply to his guilty-filed disposition, and that because there was no “sentence imposed” as a result of such disposition, subsection (2)(B) does not apply, and the guilty-filed disposition is not a conviction. Curet also points to the application note interpreting this section, which explains that “for offenses committed prior to age eighteen, only those that resulted in adult sentences of imprisonment exceeding one year and one month, or resulted in imposition of an adult or juvenile sentence or release from confinement on that sentence within five years of the defendant’s commencement of the instant offense are counted.” Id. § 4A1.2 cmt. n. 7.
We do not need to address the merits of Curet’s interpretation of § 4A1.2(d) and the application note. Curet’s argument assumes as its premise that § 4A1.2(d) governs all offenses committed prior to age eighteen. This premise is incorrect, and instead a separate subsection requires treating the guilty-filed disposition as a conviction.
Section 4A1.2(f), entitled “Diversionary Dispositions” provides, in full:
Diversion from the judicial process without a finding of guilt (e.g., deferred prosecution) is not counted. A diversionary disposition resulting from a finding or admission of guilt, or a plea of nolo contendere, in a judicial proceeding is counted as a sentence under § 4Al.l(c)even if a conviction is not formally entered, except that diversion from juvenile court is not counted.
Id. § 4A1.2(f).
The final portion of this provision undermines Curet’s premise that only subsection (d) applies to offenses committed prior to age eighteen: if that were so, there would be no need for the language “except that diversion from juvenile court is not counted.” Subsection (f) thus may apply to offenses committed prior to the age of eighteen, so long as its other requirements are satisfied.
See United States v. Fraser,
The question is whether the guilty-filed disposition is (1) “[a] diversionary disposition” (2) “resulting from a finding or admission of guilt.” 11 We hold that the guilty-filed disposition in this ease is a diversionary disposition within the meaning of this subsection.
Curet, correctly, does not dispute that the guilty-filed disposition is “diversionary” in nature. Diversionary dispositions involve circumstances where “either the adjudication or the sentence was deferred in some way,”
DiPina,
Guilty-filed dispositions also involve “a finding or admission of guilt” within the meaning of the guidelines. The application note to the diversionary disposition provision explains that the diversionary disposition must “involve[] a judicial determination of guilt or an admission of guilt in open court.” U.S.S.G. § 4A1.2 cmt. n. 9. The existence of “a guilt-establishing event ..., and not the formal entry of an adjudicatory judgment, determines whether and when there has been a countable ‘conviction.’ ”
Pierce,
The nature of a guilty-filed disposition under Massachusetts law means there has been “a guilt-establishing event” within the meaning of U.S.S.G. § 4A1.2(f). It means that there has either been a verdict or a plea of guilty in the case. Moreover, the SJC has made clear that “the purpose of placing a case ‘on file’ is to suspend sentencing indefinitely, not to prevent a guilty finding from entering on the record.”
Powell,
Our holding that guilty-filed dispositions constitute diversionary dispositions within the meaning of the guidelines accords with our holdings in prior cases.
See Griffiths v. INS,
As said, the guilty-filed disposition procedure in Massachusetts is “a predecessor to modern probation.”
Simmons,
Because the guilty-filed disposition was a diversionary disposition, it must be “counted as a sentence under § 4A1.1(c).” Id. § 4A1.2(f). Because it counts as a sentence under that subsection, it also counts as a “conviction” for career offender purposes, pursuant to U.S.S.G. § 4B1.2 cmt. n. 3. This conviction is also an “adult conviction” within the meaning of the guidelines, as Curet was expressly proceeded against as an adult under state law, as is discussed above. The 2003 guilty-filed disposition is a valid prior conviction for career offender purposes. In conjunction with Curet’s 2005 conviction, Curet has two valid career offender predicates, and the district court did not err in finding that Curet was a career offender. 12
C. Retroactive Application of the Fair Sentencing' Act and the Sentencing Guidelines Amendment
Curet’s final claim is that the Fair Sentencing Act of 2010 (FSA), Pub.L. No. 111-220, 124 Stat. 2372, and/or the amendments to the sentencing guidelines implementing that Act, should be retroactively applied to him. This claim fails.
Curet was sentenced on February 2, 2010; the relevant quantity of cocaine base was 13.95 grams. At the time he was sentenced, defendants were subject to a mandatory minimum of five years for “5 grams or more of a mixture or substance ... which contains cocaine base.”
However, we have held that the FSA does not apply to individuals who were sentenced before the FSA was signed into law on August 3, 2010.
United States v. Goncalves,
While the amendments to the guidelines are retroactive, they are of no help to Curet because he is a career offender. If only the amended guidelines were the basis for the sentence, Curet would have a somewhat reduced base offense level under the amended drug quantity table — a reduction from 24 to 20.
See
U.S.S.G. § 2D1.1(c). But this base offense level is irrelevant given Curet’s career offender status. For career offenders, a separately specified base offense level is to apply if it is “greater than the offense level otherwise applicable.”
Id.
§ 4B1.1(b). Here, Curet was subject to a career offender base offense level of 37, because the maximum statutory penalty he could have been subject to was life imprisonment.
See id.;
Finally, Curet argues that even if the guidelines themselves do not apply to him, the fact that they were made retroactive should mean that the FSA itself is retroactively applicable. Curet cites no authority for the proposition that the Sentencing Commission’s determination to make certain guideline provisions retroactive could somehow give retroactive force to a statute, and it is illogical. The provision granting the Commission authority to make provisions of the guidelines retroactive provides no such authority; it simply provides that “[i]f the Commission reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced.”
III.
The district court committed no reversible error in sentencing Curet. Curet has been ably represented, but we reject his arguments and affirm his sentence.
Notes
. Under the version of
The prior conviction required under
. Curet does not claim that he has appealed the state court's denial of his motion to vacate or otherwise attempted to vacate the 2005 conviction subsequent to his sentencing hearing in this case.
. Both parties as well as the district court described the state court’s refusal to vacate the 2005 conviction as rendering "moot” the § 851 challenge. We do not adopt that characterization. It is not entirely clear whether the term was intended to refer to the legal effects of the state-court decision on the federal-court examination of the conviction under § 851, or, instead, used in a more general sense to indicate that the challenge to the conviction was no longer worth pursuing. However, Curet’s attorney ultimately agreed that the § 851 challenge was "waived.” The state-court decision would not of itself have precluded all challenges to the information under § 851.
. Nothing in § 851 indicates that a defendant’s written response to an information, and a corresponding request for a hearing under § 851(c), cannot be waived. Indeed, the fact that the court
must
impose sentence upon the defendant ”[i]f the [defendant] files no response to the information” makes clear that a court has no independent obligation to conduct a hearing under § 851(c) in the absence of a response to the information.
See
. Because Curet’s challenge to the
. We do not address the government’s contention that Curet waived any challenge to his career offender status because he agreed, at the sentencing hearing, with the district court’s conclusion that he was a career offender.
. There are a few instances where indictments have been placed "on file” before any admission of guilt has taken place,
see Commonwealth v. Jones,
. Curet did object to the inclusion of the guilty-filed disposition in the PSR "to the extent that it fails to reflect that Count 1 (Possession of Class D) was dismissed, and that the guilty-filed disposition was for the charge of resisting arrest (Count 2),” and the PSR was corrected to reflect this fact.
. This language is distinct from that of the Armed Career Criminal Act (ACCA). The ACCA, unlike the guidelines, mandates that "[w]hat constitutes a conviction of such crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held.”
. The argument is arguably waived, as it was not made until Curet’s response to a 28(j) letter. This argument was not influenced by McGhee or any other intervening authority, and could — and should — have been made in the initial brief. Curet's briefing only argued that state law controls whether a guilty-filed disposition constitutes a conviction. Nevertheless, since we reject the argument on its own terms, we bypass the question of waiver.
. We do not need to address whether the requirement of subsection (d)(2)(B) that, for offenses committed before the age of eighteen, the sentence must have been imposed within five years of the defendant's commencement of the instant offense, applies to diversionary dispositions that occur before the age of eighteen and that are not diversions from juvenile court. Here, the defendant's guilty-filed disposition took place in October 2003, and the instant offense's conduct began in September 2007, well within the five-year period.
. Curet also argues that his resisting arrest disposition is not a “crime of violence” within the meaning of the guidelines and thus may not serve as a career offender predicate. See U.S.S.G. § 4B1.1. This argument fails. We have previously held that resisting arrest is a crime of violence.
See United States v. Weekes,
. The Supreme Court has granted certiorari to address whether the FSA applies to all individuals who were sentenced
after
the Act