DocketNumber： 95-1954
Filed Date： 9/11/1995
Status： Precedential
Modified Date： 9/21/2015
September 11, 1995 [NOT FOR PUBLICATION]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
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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.
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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
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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, ___ _____________ _____
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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. ________ ___
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