United States v. Perrotta ( 1994 )

USCA1 Opinion

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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        No. 93-2357
        No. 93-2383

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                  PASQUALE PERROTTA,

                                Defendant, Appellant.

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                    APPEALS FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                 [Hon. Frank H. Freedman, Senior U.S. District Judge]
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                                 ____________________

                                        Before

                              Torruella, Cyr and Boudin,

                                   Circuit Judges.
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                                 ____________________

            Charles K.  Stephenson with whom Richard  L. Goldman  was on brief
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        for appellant.
            Kevin  O'Regan,  Assistant  United  States  Attorney,  with   whom
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        Donald K. Stern, United States  Attorney, was on brief for  the United
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        States.



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                                  December 27, 1994
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                 BOUDIN, Circuit Judge.   Pasquale Perrotta was  indicted
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            for  participating in a  large-scale narcotics conspiracy, 21

            U.S.C.      841,  846,  and for  possession  with  intent  to

            distribute cocaine on a specific date.  21 U.S.C.    841.  In

            1990,  Perrotta was  tried,  with 12  co-defendants, and  was

            convicted  on both the conspiracy and  possession counts.  We

            resolved the appeals of  a number of Perrotta's co-defendants

            in United  States  v. Innamorati,  996 F.2d  456 (1st  Cir.),
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            cert. denied, 114  S. Ct. 409, 114 S. Ct.  459 (1993), 114 S.
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            Ct. 1072, 114 S. Ct. 1073 (1994).

                 Perrotta's sentencing occurred on December 7, 1993.  The

            delay is  presumably related to the government's willingness,

            at  sentencing,  to  move  for  a  downward  departure  under

            U.S.S.G.    5K1.1.  The court computed the guideline range as

            providing for 97 to 121 months of imprisonment but, approving

            a  downward departure,  the  court sentenced  Perrotta to  60

            months  in prison,  with three  years' supervised  release to

            follow.  Perrotta has now appealed.

                 Perrotta's first  point concerns  the unusual action  of

            the  government  in making  a  post-trial  submission to  the

            district court, neither the contents nor the existence of the

            submission  being known to the  defendants at the  time.  See
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            Innamorati,  996 F.2d at 487.  The government, in addition to
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            providing reasons  for its secrecy, asked  the district court

            to  determine whether  the information  fell under  the Brady
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            doctrine and had to be disclosed to the defense.  Id.  In the
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            course of the Innamorati appeals, this court ordered that the
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            existence  of  the  government's  submission  and  the relief

            sought  be  disclosed  to  the  defense  while  the  contents

            remained impounded.  Id.
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                 This  court  eventually  sustained  the  convictions  in

            Innamorati.  We agreed  that secret submissions are dangerous
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            and are to be  discouraged; but we found,  after a review  of

            the actual  submission, that there had been an adequate basis

            for filing the  submission in the  district court under  seal

            and  without  notice  to  defense  counsel;  that  there  was

            adequate cause to continue  the impoundment of the submission

            (even  though the  existence of the  submission might  now be

            made known); and  that the contents of  the submission either

            did not  constitute Brady  material or could  not conceivably
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            have affected the outcome of the case.  996 F.2d at 487-88.

                 Perrotta does  not seek to relitigate  the legal rulings

            just described  but makes two narrower  claims concerning the

            disclosed material.  First, he suggests  that since more time

            has now elapsed since the original submission, it must now be

            safe to  have the  contents of  the submission  disclosed, so

            that Perrotta's defense counsel can make his own judgment and

            argue more  effectively that the material  could constitute a

            prejudicial withholding of Brady information.  Alternatively,
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            Perrotta speculates as to  what the withheld submission might



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            contain and suggests that the material  has a special bearing

            as to him that may not have been true of his co-defendants.

                 The  contents of  the  government's original  submission

            have again been  reviewed by this  court.  We  remain of  the

            view  that the  government's reasons  for not  disclosing the

            contents of the material remain valid, despite the passage of

            additional time.  And having considered Perrotta's suggestion

            that the  material  may be  specially pertinent  to him,  the

            government's  submission has been  re-examined in that light,

            but  with no  difference  in  result:    there  has  been  no

            withholding from  Perrotta of Brady material  that could have
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            altered the result in his case.

                 Perrotta's  second   claim  of  error  relates   to  his

            sentencing.  The  amount of drugs attributed  to Perrotta was

            stipulated  but,  in  calculating  this  guideline  range,  a

            dispute arose  concerning his  criminal history based  on the

            following events.  Perrotta  had been convicted and sentenced

            in 1976 for a  gambling offense, but the conviction  had been

            overturned on appeal.   See  United States  v. Perrotta,  553
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            F.2d 247 (1st Cir. 1977).   Perrotta then pled guilty to  the

            offense on remand and was resentenced on April 24, 1978.  The

            question  is  whether the  1978  sentence  affects Perrotta's

            criminal history score.

                 The Sentencing Guidelines provide that one point  should

            be added  to a  defendant's criminal  history score for  each



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            "prior sentence"  where, as  was true of  Perrotta's gambling

            conviction, the sentence was less than 60 days' imprisonment.

            U.S.S.G.     4A1.1(c).   The  guidelines  provide a  kind  of

            statute of limitations for  prior sentences used in computing

            criminal  history.  For prior sentences of 13 months or less,

            points  are to  be added  only for  "any .  . .  [such] prior

            sentence that was imposed within ten years of the defendant's

            commencement  of  the  instant offense  .  .  .  ."    Id.
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            4A1.2(e)(2).     Perrotta  and   the  government  agree  that

            Perrotta's  original 1976  sentence  occurred more  than  ten

            years before  the "instant"  drug conspiracy began,  but that

            the 1978 sentence occurred within  ten years of the beginning

            of the conspiracy.

                 The  1978  sentence is,  in  the  literal words  of  the

            guideline,  a "prior  sentence  that was  imposed within  ten

            years"  of the instant offense.  U.S.S.G.   4A1.2(e)(2).  The

            guidelines  reinforce this  literal  reading by  treating the

            1976  sentence as  a  nullity; a  sentence  resulting from  a

            conviction that has been  "reversed or vacated" is not  to be

            counted.   U.S.S.G.     4A1.2, comment.  (n.  6).   There  is

            consistent case  law to this  effect, e.g., United  States v.
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            Schweihs, 971 F.2d  1302, 1318 (7th Cir. 1992).   Thus on the
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            face of  the guidelines,  the district  court was  correct in

            including the  1978 sentence  as part of  Perrotta's criminal

            history.



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                 There  is  no  reason   to  doubt  that  the  Sentencing

            Commission meant what it said.  Although the gambling offense

            itself  may have occurred more than ten years before the drug

            conspiracy  began, the  Commission could  reasonably conclude

            that criminal history points should be added in the case of a

            defendant who, within ten  years of sentencing, determined to

            commit  yet another crime.  To the extent that the sentencing

            is  treated  as  a  warning that  should  give  the defendant

            special  pause for the  next decade,  the fact  that it  is a

            resentencing after a remand makes no difference.

                 Finally, we reject  Perrotta's suggestion that  adding a

            point  because of  the 1978  sentence is  an unconstitutional

            burden  on his  right to appeal  his original  conviction for

            gambling.    Defendants  are  protected  against unreasonable

            burdens on  their right to  pursue judicial remedies  but not

            against every  incidental  and remote  disadvantage that  may

            attach.  See North  Carolina v. Pearce, 395 U.S.  711 (1969);
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            Beauchamp v. Murphy,  37 F.3d 700 (1st Cir.  1994).  There is
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            virtually  no  chance that  a defendant  will fail  to appeal

            because of  the fear that a decade later he may be subject to

            an additional criminal history point  if he chooses to commit
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            another crime.

                 Perrotta's argument regarding the secret submission is a

            serious one, and  we have  treated the first  claim of  error

            briefly   only  because  the  underlying  secrecy  issue  was



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            extensively  considered  in Innamorati.    On  the sentencing
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            issue,  Perrotta's claim is  also not frivolous  but we think

            that  the merits are clear  enough that we  need not consider

            whether, in view of  the district court's downward departure,

            Perrotta's precise criminal history  category had any  likely

            effect on the sentence.

                 Affirmed.
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