United States v. Lindia ( 1996 )


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    United States Court of Appeals United States Court of Appeals
    For the First Circuit For the First Circuit
    ____________________

    No. 95-2200

    UNITED STATES,

    Appellee,

    v.

    FRANK J. LINDIA,

    Defendant, Appellant.

    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MAINE

    [Hon. D. Brock Hornby, U.S. District Judge] ___________________

    ____________________

    Before

    Boudin, Circuit Judge, _____________
    Bownes, Senior Circuit Judge, ____________________
    and Stahl, Circuit Judge. _____________

    ____________________

    Edward S. MacColl with whom Thompson, McNaboe, Ashley & Bull was _________________ _________________________________
    on brief for appellant.
    Margaret D. McGaughey, Assistant United States Attorney, with _______________________
    whom Jay P. McCloskey, United States Attorney, and Jonathan R. __________________ ____________
    Chapman, Assistant United States Attorney, were on brief for appellee. _______


    ____________________

    April 18, 1996
    ____________________



















    STAHL, Circuit Judge. Pursuant to a plea agreement STAHL, Circuit Judge. _____________

    with the government, defendant-appellant Frank J. Lindia

    pleaded guilty to a one-count indictment charging that, from

    December 1994 to January 31, 1995, he and codefendants John

    C. Mosby and Augustine T. Aguirre conspired to possess with

    intent to distribute in excess of fifty kilograms of

    marijuana, in violation of 21 U.S.C. 846, 841(a)(1) and

    (b)(1)(C). On appeal, Lindia claims that the district court

    erred by: including a negotiated but unconsummated sale of

    150 pounds of marijuana in the sentence calculation;

    sentencing him as a career offender; and refusing to depart

    downward from the sentence on his claim that the career-

    offender criminal history category significantly

    overrepresented his past criminal conduct.

    I. I. __

    Pertinent Background and Prior Proceedings Pertinent Background and Prior Proceedings __________________________________________

    A. Facts _________

    We accept the facts as set forth in the uncontested

    portions of the Presentence Investigation Report ("PSR") and

    the sentencing hearing transcript, see United States v. ___ ______________

    Muniz, 49 F.3d 36, 37 (1st Cir. 1995), reciting additional _____

    facts below as necessary.

    In late 1994, federal and Maine law enforcement

    authorities, with the help of a cooperating individual (CI),

    began investigating Lindia's activities. Soon thereafter,



    -2- 2













    the CI (who had been the "buyer" in monitored marijuana

    transactions) introduced to Lindia an "associate," undercover

    DEA Special Agent Mike Cunniff, who would handle further

    transactions. During the ensuing negotiations, Agent Cunniff

    was introduced to Lindia's associates, Aguirre and Mosby.

    On January 20, 1995, Agent Cunniff met Mosby at

    Mosby's home in Jamestown, Rhode Island, where Mosby

    delivered to Cunniff forty-eight pounds of marijuana. On

    January 31, 1995, Lindia and Aguirre met Agent Cunniff in

    Portland, Maine, to receive payment for the marijuana. The

    meeting took place in a hotel room that government agents had

    previously set up with videotape equipment. During the

    meeting, Agent Cunniff delivered $62,400 in cash and

    commented on the failure of Aguirre and Lindia to accept the

    payment earlier, as they had promised. Concerned about his

    customer's unhappiness, Lindia apologized for the delay and

    indicated that more marijuana was available. The three men

    then planned for an additional thirty pounds of marijuana to

    be delivered the next day.

    Also during the videotaped meeting, Lindia told

    Cunniff, "We have something else . . . that we would like to

    send up to you." Both Lindia and Aguirre then spoke of a

    subsequent shipment of marijuana and indicated that they

    could probably send Cunniff "about" 150 or 200 pounds,





    -3- 3













    depending upon the capacity of the vehicle in which it would

    travel.1 Lindia stated that the lot could be delivered in a

    little over one week's time. After counting out the cash

    payment for the forty-eight pound lot and discussing details

    of the next day's thirty-pound delivery, Lindia and Aguirre

    left the hotel room and were promptly arrested. Lindia

    eventually pleaded guilty and cooperated with the

    authorities.

    B. Sentencing ______________




    ____________________

    1. The transcript of this portion of the conversation
    between Lindia, Aguirre and Agent Cunniff reads, in part:

    Lindia: And let me ask you another question. We
    have something else . . . that we would
    like to send up to you. Now this is
    going to be
    Aguirre: What, the [shipment] that's coming
    Lindia: The one that's coming with . . . Chewy
    Aguirre: Are you talking about this one that's
    already
    Lindia Not this one, the one that's behind it
    from Chewy
    Aguirre: Well, we could probably get about
    Lindia: We could probably get about
    Aguirre: One and one half, or two even
    Cunniff: I can handle three, five, or thousand
    Lindia: This is contingent upon the vehicle that
    we have at this point. . . . So two would
    probably be the limit.

    After discussing delivery matters about this shipment, the
    discussion continued:

    Cunniff: How much are we talking about?
    Lindia: Probably one and half to two
    . . . .
    Aguirre: Whatever we can get [in the vehicle].

    -4- 4













    The district court sentenced Lindia as a career

    offender under 21 U.S.C. 994(h), including as a predicate

    offense Lindia's Rhode Island conviction on a nolo contendere ____ __________

    plea for possession with intent to deliver marijuana. Under

    the Career Offender guideline, U.S.S.G. 4B1.1, the court

    was required to determine the offense statutory maximum in

    order to ascertain the applicable offense level. Because the

    court included the negotiated 150-pound lot in the amount of

    drugs attributable to Lindia, it found the offense statutory

    maximum to be twenty years' imprisonment under 21 U.S.C.

    841(b)(1)(C).

    Pursuant to the Career Offender guideline, the

    statutory maximum of twenty years yielded an offense level of

    thirty-two with a criminal history category of VI. Lindia

    asked the court to depart downward on the basis that the

    criminal history category overrepresented his criminal

    history; but the court refused, specifically ruling that it

    did not have the authority to do so. The court did grant a

    three-level downward adjustment in the offense level for

    acceptance of responsibility, resulting in a total offense

    level of twenty-nine and a guideline imprisonment range of

    151 to 188 months. On the government's motion under U.S.S.G.

    5K1.1, the court departed downward from the guideline range

    for Lindia's substantial assistance and imposed a sentence of

    108 months' incarceration.



    -5- 5













    II. II. ___

    Discussion Discussion __________

    We review the sentencing court's findings of fact

    for "clear error" and generally defer to its credibility

    determinations. United States v. Muniz, 49 F.3d 36, 41 (1st _____________ _____

    Cir. 1995); United States v. Whiting, 28 F.3d 1296, 1304 (1st _____________ _______

    Cir.), cert. denied, 115 S. Ct. 378, 498, 499, 532 (1994). _____ ______

    We review de novo the court's interpretation of the __ ____

    guidelines and application of law. Muniz, 49 F.3d at 41. _____

    A. Drug Quantity Calculation _____________________________

    The extent of the penalty for a controlled-

    substance conviction is determined in large part by the

    amount of drugs properly attributable to the defendant.

    United States v. Campbell, 61 F.3d 976, 982 (1st Cir. 1995), ______________ ________

    petition for cert. filed, (Mar. 8, 1996) (No. 95-8348). On ________ ___ _____ _____

    appeal, Lindia challenges the district court's inclusion of

    the negotiated but unconsummated 150-pound lot in the

    calculation of his sentence. Without this quantity, he would

    have received the benefit of 21 U.S.C. 841(b)(1)(D), which

    provides for a maximum imprisonment term of only five years

    "[i]n the case of less than 50 kilograms of marijuana."2

    Use of this penalty provision would have yielded, under the





    ____________________

    2. 1 kilogram is equivalent to approximately 2.2 pounds.

    -6- 6













    Career Offender guideline, a pre-adjustment offense level of

    seventeen instead of thirty-two. See U.S.S.G. 4B1.1.3 ___

    The PSR stated that Lindia was responsible for

    103.5 kilograms of marijuana, representing a combination of

    the forty-eight pound, thirty-pound, and 150-pound lots.4

    ____________________

    3. This challenge is somewhat perplexing in light of the
    indictment and plea agreement in the record before us.
    Lindia informs this court that he pleaded guilty to the
    conspiracy to possess with intent to distribute marijuana but
    "did not plead guilty to quantity." The indictment to which
    he pleaded guilty, however, states that the conspiracy was
    for "in excess of 50 kilograms." Further, both the
    indictment and the plea agreement cite 21 U.S.C.
    841(b)(1)(C) which sets forth a maximum sentence of 20
    years as the applicable penalty provision. Indeed, the plea
    agreement explicitly states that "[t]he parties agree and
    understand that the maximum statutory penalty which may be
    imposed upon conviction is imprisonment of not more than
    twenty years."
    Nonetheless, Lindia insists that at the change of
    plea hearing, the court and the parties "understood" that the
    issue of drug quantity would be left entirely open for
    sentencing purposes. Incredibly, Lindia does not provide
    this court with a transcript of the change of plea hearing
    for our consideration of his claimed material change in the
    indictment and plea agreement. And nothing in the record
    before us hints of a superseding indictment or information
    eliminating the quantity specification. Because the record
    adequately supports the court's finding that, counting the
    negotiated 150-pound lot, the marijuana quantity attributable
    to Lindia was in excess of 50 kilograms, we do not decide
    whether his plea precluded his challenge to the drug quantity
    finding.

    4. The government points out that, with a total quantity of
    103.5 kilograms of marijuana, the five-year mandatory minimum
    and 40-year maximum in 21 U.S.C. 841(b)(1)(B)(vii) might
    have applied rather than the 20-year maximum in
    841(b)(1)(C). The application of the lower maximum
    sentence is apparently based on the understanding of the
    parties and court, as evidenced in the indictment, plea
    agreement, and PSR, that Lindia would be responsible for a
    marijuana quantity that would trigger no more than the
    penalties set for in 841(b)(1)(C).

    -7- 7













    Lindia objected to this conclusion, asserting, inter alia, _____ ____

    that the 150-pound lot "never existed" and was not the object

    of any conspiracy, and that his statements about it

    constituted mere "puffing" in an attempt to gain Agent

    Cunniff's business confidence. At the sentencing hearing,

    Lindia testified that the 150-pound lot had never been

    previously discussed or planned and that no steps had been

    taken to obtain it. Lindia repeated that the discussion was

    meant to impress Agent Cunniff, and testified that only after

    obtaining payment for the forty-eight and thirty-pound lots

    did he intend to actually seek the additional 150 pounds of

    marijuana.

    The district court found, under a preponderance-of-

    the-evidence standard, that the proposed delivery of the 150

    pound lot had not been discussed or planned before the

    videotaped meeting. The court also found, however, that

    based on Lindia's and Aguirre's statements, the 150 pounds of

    marijuana added to, and were part of, the charged conspiracy.

    The court found that Lindia and Aguirre intended to produce

    that marijuana and were reasonably capable of doing so and

    thus, the 150 pounds were includable in the offense conduct

    for the purposes of the statutory maximum and the Sentencing

    Guidelines.

    Application note 12 of U.S.S.G. 2D1.1 provides:

    In an offense involving negotiation to
    traffic in a controlled substance, the


    -8- 8













    weight under negotiation in an
    uncompleted distribution shall be used to
    calculate the applicable amount.
    However, where the court finds that the
    defendant did not intend to produce and
    was not reasonably capable of producing
    the negotiated amount, the court shall
    exclude from the guideline calculation
    the amount that it finds the defendant
    did not intend to produce and was not
    reasonable capable of producing.

    We have interpreted this note as requiring the sentencing

    court to include the negotiated amount in the drug quantity

    calculation unless it finds both that the defendant did not

    have the intent to produce the amount, and that he lacked the

    capacity to deliver it. United States v. Wihbey, 75 F.3d _____________ ______

    761, 777 (1st Cir. 1996); Muniz, 49 F.3d at 39. Application _____

    note 12 applies for the purposes of both the Sentencing

    Guidelines and the statutory penalties under 21 U.S.C.

    841(b). Muniz, 49 F.3d at 39-40 (indicating that five-year _____

    difference in statutory mandatory minimum was dependent upon

    drug quantity calculated under application note 12); United ______

    States v. Pion, 25 F.3d 18, 25 n.12 (1st Cir.) (noting that ______ ____

    drug quantity finding under note 12 provides threshold

    calculus for mandatory minimums), cert. denied, 115 S. Ct. _____ ______

    326 (1994).

    Lindia contends that due process requires the

    government to prove drug quantity beyond a reasonable doubt.

    Drug quantity, however, is not an element of the offense of

    conviction, 21 U.S.C. 846 and 841(a)(1), but is typically



    -9- 9













    relevant only for determining the penalty. See 21 U.S.C. ___

    841(b); United States v. Campbell, 61 F.3d 976, 979-80 (1st _____________ ________

    Cir. 1995) (citing United States v. Lam Kwong-Wah, 966 F.2d _____________ ______________

    682, 685 (D.C. Cir.), cert. denied, 506 U.S. 901 (1992)); _____ ______

    United States v. Patterson, 38 F.3d 139, 143-44 (4th Cir. _____________ _________

    1994), cert. denied, 115 S. Ct. 1968 (1995). As such, drug _____ ______

    quantity for purposes of 841(b) is determined by the

    sentencing court under a preponderance-of-the-evidence

    standard.5 See United States v. Barnes, 890 F.2d 545, 551 ___ _____________ ______

    n.6 (1st Cir. 1989) (noting that court, not jury, determines

    drug quantity under 841(b)), cert. denied, 494 U.S. 1019 _____ ______

    (1990); United States v. Lombard, 72 F.3d 170, 175-76 (1st ______________ _______

    Cir. 1995) (explaining that "once convicted, a defendant has

    no right under the Due Process Clause to have his sentencing

    determination be confined to facts proved beyond a reasonable

    doubt," rather, applicable standard is preponderance of the

    evidence); Whiting, 28 F.3d at 1304 and n.5 (reaffirming _______








    ____________________

    5. We note that, during the sentencing proceeding, Lindia
    argued that the government must prove drug quantity beyond a
    reasonable doubt, and that he had the right to a "jury trial
    on the question of quantity." The court told Lindia, "either
    you get a jury trial on the offense or not," remarked that
    this request was essentially an attempt to withdraw the
    guilty plea, and inquired if he sought to withdraw his plea.
    After consulting with his counsel, Lindia stood by his plea.

    -10- 10













    preponderant evidence standard); see also McMillan v. ___ ____ ________

    Pennsylvania, 477 U.S. 79, 91-93 (1986).6 ____________

    Here, to assist in its determination of whether the

    conspiracy included the 150-pound lot, the district court had


    ____________________

    6. Lindia cites McMillan v. Pennsylvania, 477 U.S. 79 ________ ____________
    (1986), in support of his argument that due process requires
    proof of drug quantity beyond a reasonable doubt. McMillan, ________
    however, expressed a due process concern where a state treats
    an element of a criminal offense as a sentencing factor, thus
    affording it less procedural safeguards. 477 U.S. at 84-88.
    Here, the quantity of drugs in this federal offense is not ________
    one of the elements of the offense, see supra, but a settled ___ _____
    sentencing factor.
    Moreover, this is not a case in which the drug
    quantity finding is "a tail which wags the dog of the
    substantive offense," McMillan, 477 U.S. at 88, thereby ________
    possibly triggering a higher burden of proof on the
    government. See United States v. Townley, 929 F.2d 365, 369 ___ _____________ _______
    (8th Cir. 1991) (suggesting but not deciding that due process
    requires more than preponderant standard where inclusion of
    uncharged drug amounts produced 18-level increase in base
    offense level and seven-fold increase in sentencing range);
    United States v. Kikumura, 918 F.2d 1084, 1102 (3d Cir. 1990) _____________ ________
    (holding that clear-and-convincing evidence standard applies
    to justify a twelve-fold, 330-month departure from guideline
    range median); cf. United States v. Lombard, 72 F.3d 170, 176 ___ _____________ _______
    (1st Cir. 1995) (holding that sentencing court may depart
    downward where uncharged, enhancing conduct of acquitted
    murder charge increased sentence from 262-327 months' to
    mandatory life term).
    Without expressing any opinion as to the holdings
    of Townley and Kikumura, we note that, unlike those cases _______ ________
    (and Lombard, as well), this case does not involve a _______
    sentencing enhancement or departure based on uncharged _________
    conduct. Here, Lindia pleaded guilty to every element of the
    offense charging a marijuana conspiracy between December 1994
    and January 31, 1995; and the sentence squarely punishes that
    offense of conviction. See United States v. Harrison- ___ ______________ _________
    Philpot, 978 F.2d 1520, 1524 (9th Cir. 1992) (holding _______
    inapplicable tail-wagging-dog concerns where disputed drug-
    quantity pertained only to sentence for convicted conduct),
    cert. denied, 508 U.S. 929 (1993). In short, this is simply _____ ______
    not a case in which due process required anything more at
    sentencing.

    -11- 11













    the benefit of the videotape of the hotel meeting and

    Lindia's own testimony at the sentencing hearing. The

    transcript from the hotel meeting clearly reveals Lindia's

    (and Aguirre's) stated desire and agreement to provide

    Cunniff with 150 to 200 pounds of marijuana. The discussion

    included details such as the identification of the shipment's

    source, the capacity of the vehicle to transport the

    marijuana, and the number of days for delivery. Thus, there

    was sufficient, reliable evidence from which the court could

    find, by a preponderance of the evidence, that the conspiracy

    included the 150-pound lot.

    To invoke the exception of application note 12, the

    court needed to be persuaded that Lindia did not have the

    intent and ability to produce the 150-pound lot. Wihbey, 75 ______

    F.3d at 777. The court was free to reject, as it did,

    Lindia's claim that the discussion of the 150 pounds was mere

    "puffing" to impress the buyer into future negotiations. See ___

    Whiting, 28 F.3d at 1305 (refusing to disturb sentencing _______

    court's rejection of "puffing" claim); see also United States ___ ____ _____________

    v. DeMasi, 40 F.3d 1306, 1322 n.18 (1st Cir. 1994) (noting ______

    that sentencing court's choice between supportable plausible

    inferences cannot amount to clear error), cert. denied, 115 _____ ______

    S. Ct. 947 (1995). Lindia did not prove to the court that he

    lacked the intent and ability to produce the negotiated

    amount; rather, based on the evidence presented, the court



    -12- 12













    affirmatively found that he had both. We discern no clear

    error in the court's finding that the 150 pounds of marijuana

    were part of the conspiracy and, as such, were includable

    under U.S.S.G. 2D1.1 to determine the offense statutory

    maximum and Guideline sentencing range.7

    B. Career Offender Status __________________________



    ____________________

    7. Lindia cites Neal v. United States, 116 S. Ct. 763 ____ _____________
    (1996), in support of his contention that application note 12
    "is inconsistent with established law." In Neal, the court ____
    held that stare decisis required it to adhere to a prior _____ _______
    statutory interpretation pertaining to the sentencing
    calculation of a certain drug, in the face of a newly
    conflicting methodology set forth in the Guidelines. 116 S.
    Ct. at 768-69. Here, Lindia cites no controlling sentencing
    precedent with which application note 12 actually conflicts.
    Rather, Lindia cites cases affirming the general principle
    that the object of a conspiracy is an element of the offense
    and must be proven beyond a reasonable doubt. See United ___ ______
    States v. Bush, 70 F.3d 557, 561 (10th Cir. 1995) (holding ______ ____
    that in a multiple-object conspiracy conviction, where it is
    impossible to tell which controlled substance was the object
    of conviction, defendant must be sentenced based on objective
    yielding lowest offense level), cert. denied, 116 S. Ct. 795 _____ ______
    (1996). Lindia contends that because specific intent to
    effectuate the substantive offense must be proven for a
    conspiracy conviction, application note 12 conflicts with
    "long-established law for identifying the object of a
    conspiracy" because it permits inclusion of a drug quantity
    even if the defendant did not have the intent to produce that
    quantity.
    Here, unlike Bush, the indictment specifies only ____
    one controlled-substance object of the conspiracy: possession
    with intent to distribute marijuana. Lindia's guilty plea
    waived the government's burden to prove that object. Had the
    case gone to trial, the government would not have had to
    prove any specific amount of drugs for a conviction.
    Campbell, 61 F.3d at 979. Thus, application note 12 is ________
    simply part of the Sentencing Commission's permissible
    methodology for employing the penalty provisions pertaining
    to quantity set forth in 841(b); it does not remove from
    the government's burden an element of the conspiracy offense.

    -13- 13













    The district court sentenced Lindia as a career

    offender under 21 U.S.C. 994(h) due to two previous drug

    distribution offenses and the instant offense. See U.S.S.G. ___

    4B1.1. Lindia challenges this aspect of his sentence,

    arguing first, that conspiracy to commit a controlled

    substance offense should not trigger career offender status,

    and second, that the court should not have counted as a

    predicate offense a Rhode Island charge to which Lindia

    pleaded nolo contendere. ____ __________



































    -14- 14













    1. Conspiracy As Predicate Offense ___________________________________

    In 1994, this court joined a number of our sister

    circuits in holding that, in U.S.S.G. 4B1.2, comment.

    (n.1), the Commission properly designated conspiracy to __________

    commit a "crime of violence or a controlled substance

    offense" as a triggering or predicate offense for career

    offender purposes, even though conspiracy convictions are not

    listed in the body of the pertinent guidelines or in 28

    U.S.C. 994(h). United States v. Piper, 35 F.3d 611, 618- ______________ _____

    619 (1st Cir. 1994) (citing cases), cert. denied, 115 S. Ct. _____ ______

    1118 (1995). On appeal, Lindia invites us to reconsider

    Piper and join those circuits holding that conspiracies to _____

    commit the crimes defined in 994(h) do not fall within its

    purview. See e.g., United States v. Mendoza-Figueroa, 28 ___ ____ ______________ ________________

    F.3d 766 (8th Cir. 1994), cert. denied, 116 S. Ct. 939 _____ ______

    (1996). We decline the invitation and adhere to our

    controlling precedent, thus affirming the use of the instant

    conspiracy conviction to trigger the career offender

    provisions.

    2. The Rhode Island Nolo Contendere Plea _________________________________________

    In 1986, Lindia pleaded nolo contendere to a Rhode ____ __________

    Island charge of possession with intent to deliver marijuana

    ("the 1986 charge"). On this plea, the state court adjudged

    Lindia "guilty as charged and convicted" and gave him a

    deferred sentence. Lindia argues that the 1986 charge is not



    -15- 15













    a "conviction" under Rhode Island law and therefore cannot

    constitute a predicate offense for purposes of career

    offender status.

    We have previously addressed the issue of whether

    or not a nolo contendere plea and subsequent disposition in ____ __________

    Rhode Island constitutes a "conviction" for federal

    sentencing purposes. See United States v. Patrone, 948 F.2d ___ _____________ _______

    813, 816-17 (1st Cir. 1991), cert. denied, 504 U.S. 978 _____ ______

    (1992). Patrone involved sentencing under the armed-career- _______

    criminal statute, 18 U.S.C. 924(e), which specifically

    provides that state law determines whether or not a state _____

    disposition constitutes a "conviction." Id. at 816; see 18 ___ ___

    U.S.C. 921(a)(20). By contrast, 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. See United States v. Pierce, ___ _____________ ______

    60 F.3d 886, 892 (1st Cir. 1995) (analyzing Guidelines

    provisions in concluding that state disposition on nolo ____

    contendere plea constituted "conviction"), petition for cert. __________ ________ ___ _____

    filed, (Oct. 19, 1995) (No. 95-6474). _____

    After carefully analyzing the Guideline language

    and commentary, we held in Pierce that the guilt-establishing ______

    event, such as a guilty plea, trial, or plea of nolo ____

    contendere, "determines whether and when there has been a __________

    countable ``conviction'" for purposes of the Career Offender



    -16- 16













    guideline. 60 F.3d at 892. We concluded that a Florida

    offense, to which the defendant pleaded nolo contendere and ____ __________

    that resulted in a "withheld adjudication," constituted a

    countable "conviction" under the Career Offender guideline.

    Id. Similarly, Lindia's nolo contendere plea, subsequent ___ ____ __________

    adjudication, and deferred sentence also constitute a

    "conviction" for career offender purposes. See also United ___ ____ ______

    States v. Cuevas, 75 F.3d 778, 780-83 (1st Cir. 1996) ______ ______

    (holding, under federal standards, that Rhode Island

    disposition on nolo contendere plea is a "conviction" for ____ __________

    immigration law purposes).

    Moreover, there is little doubt that the 1986

    charge would constitute a conviction under Rhode Island law.

    In Patrone, we explained that under R.I. Gen. Laws 12-18- _______

    3(a), a nolo contendere plea will not constitute a ____ __________

    "conviction for any purpose" if the court places the

    defendant on probation and the defendant completes probation

    without violating its terms. 948 F.2d at 816, n.1. Section

    12-18-3(b) further provides, however, that subdivision (a)

    "shall not apply to any person who is sentenced to serve a

    term in the adult correctional institution or who is given a

    suspended or deferred sentence in addition to probation." As

    explained in Patrone, we interpret this provision to mean _______

    that a nolo contendere plea followed by a deferred sentence ____ __________





    -17- 17













    (or other sentence described in 12-18-3(b)) constitutes a

    "conviction" under Rhode Island law. See id. ___ ___

    Lindia contends that our analysis in Patrone is _______

    inapplicable, reading much into 12-18-3(b)'s language: "or

    deferred sentence in addition to probation." (emphasis __ ________ __ _________

    added). Lindia claims that he was not placed on "probation"

    for the 1986 charge, rather, he "entered probationary status

    based solely on an agreement with the Rhode Island Attorney

    General." The record before this court is less than clear on

    this issue. It is apparent, however, that although Rhode

    Island law provides for a special circumstance in which a

    nolo contendere plea and successful completion of probation ____ __________

    will not constitute a conviction, that circumstance will not

    apply where the defendant is also given a sentence of

    imprisonment, or a suspended or deferred sentence. See R.I. ___

    Gen. Laws 12-18-3. Thus, even assuming that Lindia was not

    placed on probation, the controlling fact is that he was

    given a deferred sentence, thus rendering the benefits of

    12-18-3(a) inapplicable. Lindia cites to no other

    applicable Rhode Island law in which a nolo contendere plea ____ __________

    will not constitute a conviction.8

    ____________________

    8. R.I. Gen. Laws 12-19-19 provides, inter alia, that if _____ ____
    the court defers sentencing on a plea of guilty or nolo ____
    contendere, it may actually impose a sentence only within a __________
    certain time period unless the defendant is otherwise
    sentenced to prison during that period, in which case the
    time for imposing sentence is extended. This section says
    nothing about whether or not the plea, followed by the

    -18- 18













    Under both federal and state law standards, the

    district court properly counted Lindia's 1986 charge as a

    conviction for purposes of the career offender adjudication.

    C. Authority to Depart Downward Based on Overrepresentation _____________________________________________________________

    in Career-Offender Criminal History Category ____________________________________________

    Lindia contends that the criminal history category

    of VI, calculated pursuant to his career offender status,

    significantly overrepresents his criminal history. The

    district court ruled that nothing in the career-offender

    statute, 28 U.S.C. 994(h), or in the Guidelines permitted a

    downward departure on this basis.9 The First Circuit has

    not yet decided the permissibility of such a departure in a

    career offender case, see United States v. Morrison, 46 F.3d ___ _____________ ________

    127, 129 (1st Cir. 1995), although many of our sister

    circuits have answered this question in the affirmative, see ___

    e.g., United States v. Spencer, 25 F.3d 1105 (D.C. Cir. ____ ______________ _______

    1994); United States v. Rogers, 972 F.2d 489 (2d Cir. 1992); _____________ ______

    United States v. Bowser, 941 F.2d 1019 (10th Cir. 1991); _____________ ______

    United States v. Lawrence, 916 F.2d 553, 554 (9th Cir. 1990). _____________ ________

    Pursuant to the Sentencing Reform Act of 1984,

    commencing at 18 U.S.C. 3551, 28 U.S.C. 991-998 (as

    ____________________

    deferred sentence, constitutes a "conviction." Based on the
    structure of 12-18-3, however, it is apparent that Rhode
    Island treats nolo contendere pleas as convictions unless the ____ __________ ______
    defendant meets the provisions of 12-18-3.

    9. The court did not indicate in any way whether or not it
    would depart if it had the authority to do so.

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    amended), the United States Sentencing Commission promulgates

    Sentencing Guidelines that establish presumptive sentencing

    ranges for categories of defendants and offenses. Williams ________

    v. United States, 503 U.S. 193, 195-96 (1992). Under 28 _____________

    U.S.C. 994(h),

    The Commission shall assure that the
    guidelines specify a sentence to a term
    of imprisonment at or near the maximum
    term authorized for categories of
    defendants in which the defendant is
    eighteen years old or older and [has been
    convicted of a violent crime or felony
    drug offense and has a least two such
    prior convictions].

    This statute is meant to ensure that the Commission's

    Guidelines provide that certain felony-recidivists receive

    maximum authorized sentences. See United States v. Labonte, ___ _____________ _______

    70 F.3d 1396, 1404 (1st Cir. 1995). The Career Offender

    guideline, U.S.S.G. 4B1.1, is the Commission's

    implementation of 994(h). See U.S.S.G. 4B1.1, comment. ___

    (backg'd); Labonte, 70 F.3d at 1400-1401. The guideline _______

    establishes the career-offender presumptive sentencing range

    by setting forth enhanced total offense levels -- by

    reference to offense statutory maximums10 -- and provides

    that "[a] career offender's criminal history category in




    ____________________

    10. The First Circuit has upheld the Commission's
    interpretation that "maximum term" in 994(h) is the
    applicable unenhanced statutory maximum. See generally ___ _________
    LaBonte, 70 F.3d 1396. _______

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    every case shall be Category VI," the highest category level.

    U.S.S.G. 4B1.1.

    The Sentencing Reform Act permits a sentencing

    court to depart from a Guidelines' presumptive sentencing

    range "only when it finds that ``there exists an aggravating

    or mitigating circumstance of a kind, or to a degree, not

    adequately taken into consideration by the Sentencing

    Commission in formulating the guidelines.'" Williams, 503 ________

    U.S. at 198 (quoting 18 U.S.C. 3553(b)); see also 28 U.S.C. ___ ____

    991(b)(1)(B) (providing that the Commission's purposes

    include "maintaining sufficient flexibility to permit

    individualized sentences when warranted by mitigating or

    aggravating factors not taken into account in the

    establishment of general sentencing guidelines").

    Accordingly, the Guidelines provide that "a case that falls

    outside the linguistically applicable guideline's ``heartland'

    is a candidate for departure." United States v. Rivera, 994 _____________ ______

    F.2d 942, 947 (1st Cir. 1993); see U.S.S.G. Ch.I, Pt.A, ___

    intro. comment. (4)(b). Such cases are deemed "unusual,"

    and, by definition, the Commission (with some exceptions) has

    not "adequately" considered them within the meaning of

    3553(b). Id. As Justice (then Chief Judge) Breyer ___

    thoroughly explained in Rivera, the exceptions to this ______

    principle are those several factors the Commission has

    explicitly rejected as permissible grounds for departure.



    -21- 21













    Id. at 948-949 (also explaining that encouraged departures ___

    are likely "reasonable" while discouraged departures require

    "unusual or special" circumstances); see also Williams, 503 ___ ____ ________

    U.S. at 200 (concluding that departure based on expressly

    rejected factorconstitutesincorrect applicationofGuidelines).

    The Application Instructions for the Guidelines,

    set forth in U.S.S.G. 1B1.1, explain that after a

    sentencing court determines the offense level, the

    defendant's criminal history category, and the applicable

    guideline range, it then refers to certain provisions for

    "Specific Offender Characteristics and Departures" and "any

    other policy statement or commentary in the guidelines that

    might warrant consideration in imposing sentence." A

    guidelines policy statement, U.S.S.G. 4A1.3, specifically

    addresses the adequacy of a criminal-history category's

    reflection of a defendant's past criminal conduct. See also, ___ ____

    U.S.S.G. Ch.5, Pt.H, intro. comment. and 5H1.8 (stating

    that criminal history is relevant in determining if sentence

    should be outside applicable guideline range). Section 4A1.3

    explicitly recognizes that a defendant's criminal history

    category may "significantly over-represent[] the seriousness

    of a defendant's criminal history or the likelihood that the

    defendant will commit further crimes." U.S.S.G. 4A1.3,

    (policy statement). In such cases, the sentencing court may

    consider a downward departure. Id. We agree with our sister ___



    -22- 22













    circuits (that have considered the issue) that a sentencing

    court may invoke 4A1.3 to depart downward from the career-

    offender category if it concludes that the category

    inaccurately reflects the defendant's actual criminal

    history, within the meaning of 18 U.S.C. 3553(b). See ___

    e.g., United States v. Spencer, 25 F.3d 1105, 1113 (D.C. Cir. ____ _____________ _______

    1994); United States v. Rogers, 972 F.2d 489, 494 (2d Cir. ______________ ______

    1992); United States v. Bowser, 941 F.2d 1019, 1024 (10th _____________ ______

    Cir. 1991); United States v. Lawrence, 916 F.2d 553, 554-55 _____________ ________

    (9th Cir. 1990).

    The district court interpreted Congress's mandate

    in 994(h) and the Commission's implementation, U.S.S.G.

    4B1.1, as precluding departure on the basis of

    overrepresentation in all cases in which the defendant is

    assigned a criminal history category of VI under the Career

    Offender guideline. Section 994(h), however, is directed to

    the Commission's duty to formulate guidelines pertaining to

    categories of defendants, not to sentencing courts faced with

    individual defendants. As explained above, Congress and the

    Commission have rejected rigid sentencing schemes by

    empowering the sentencing court to consider factors that

    might comprise an "unusual" case. The Commission has not

    designated as a "forbidden departure" the overrepresentation

    of a criminal history category in career offender cases, see ___

    Rivera, 994 F.2d at 948-49, and "there is nothing unique to ______



    -23- 23













    career offender status which would strip a sentencing court

    of its ``sensible flexibility' in considering departures."

    Rogers, 972 F.2d at 493. ______

    A district court that considers numerous

    Guidelines cases has a "special competence" to determine the

    "ordinariness" or "unusualness" of a particular case.

    Rivera, 994 F.2d at 951. When faced with a departure motion ______

    in a career-offender case, as in other cases, the court's

    experience and unique perspective will allow it to decide if

    the case before it falls outside the guideline's "heartland,"

    warranting departure. See Rivera, 994 F.2d at 952 (holding ___ ______

    that appellate court reviews "unusualness" determination with

    "respect" for sentencing court's "superior ``feel' for the

    case" (citation omitted)). Because the district court in

    this case did not consider whether or not the career-offender

    criminal history category overrepresented Lindia's

    circumstances, so as to make his case "unusual," we remand

    for its determination of this issue.11

    III. III. ____

    Conclusion Conclusion __________

    For the foregoing reasons, we affirm in part, ______

    vacate in part and remand for proceedings consistent with ______ ______


    ____________________

    11. The government, both in its brief and at oral argument,
    conceded that the court had the authority to depart on this
    basis and stated that, should we agree, remand for
    resentencing would be appropriate.

    -24- 24













    this opinion.



















































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