U.S. v. Nicholas

• Decision Date: 05 December 1997
• Docket Number: No. 97-1733,97-1733
• Citation: 133 F.3d 133
• Parties: UNITED STATES of America, Appellee, v. Christian Modest NICHOLAS, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 133

133 F.3d 133

UNITED STATES of America, Appellee, v. Christian Modest NICHOLAS, Defendant, Appellant.

No. 97-1733.

United States Court of Appeals First Circuit.

Heard Dec. 5, 1997.

Decided Jan. 9, 1998.

J. Martin Richey, of the Federal Defender Office, Brockton, MA, for appellant.

Antoinette E.M. Leoney, Assistant U.S. Attorney, Boston, MA, with whom Donald K. Stern, United States Attorney, was on brief, for appellee.

Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

Federal criminal sentences under the Guidelines are often increased where the defendant had prior state court findings which amount to convictions or admissions of guilt. This defendant in 1997 pled guilty to six bank robberies, federal crimes, and had in 1993 admitted to sufficient facts ¹ on state charges of larceny and forgery, a procedure the state labeled a "continuance without a finding." The rub is that he did so under an archaic Massachusetts criminal procedure, abolished as of January 1, 1994, which gave defendants a trial de novo after an initial criminal proceeding, such as a continuance without a finding, in the state district court.

Defendant Nicholas, an emigre from St. Lucia, argues from this archaic system that this prior state court finding may not be counted against him. Because Nicholas in 1993 signed a Duquette waiver of his right to appeal from the state court finding and because the federal sentencing record, particularly the presentence report (PSR), adequately established the fact and regularity of this waiver and that the state court found (and Nicholas admitted) sufficient facts to warrant a finding of guilty, we find no error and uphold the increased sentence imposed by the federal sentencing judge.

The precise issue is whether the district court erred in revising upward the defendant's criminal history category by counting the prior continuance without a finding in Massachusetts state court. If the court so erred, the sentencing range applicable to Nicholas would be 51 to 63 months instead of 57 to 71 months. The district court sentenced Nicholas to 57 months (4 years and 9 months) of incarceration, the low end of the range.

I.

On March 11, 1997, Christian M. Nicholas pled guilty to six separate bank robberies, dating from September of 1994 through December of 1996, in violation of 18 U.S.C. § 2113(a).

The court adopted the PSR calculation of the total offense level as 24 and the placement of Nicholas in criminal history category II, under U.S.S.G. § 4A1.1(c). Nicholas received one criminal history point under § 4A1.2(f) for the state court case that was continued without a finding after his admission to sufficient facts in the first tier of the old Massachusetts de novo trial system. ² In addition, two points were added pursuant to U.S.S.G. § 4A1.1(d) (offense committed while "under a criminal justice sentence") because at the time of the federal offenses Nicholas was under supervision from that state finding. Because Nicholas had three points, he fell into criminal history category II. If the continuance without a finding may not be counted, as Nicholas argues, then neither may the two additional points, and Nicholas belongs in category I.

Nicholas was sentenced in May of 1997. Nicholas argues that the district court should not have included the Massachusetts continuance in its calculation and that he properly belongs in criminal history category I.

II.

We review de novo a district court's legal interpretation of the Sentencing Guidelines. See United States v. Damon, 127 F.3d 139, 141 (1st Cir.1997).

Under Guidelines § 4A1.2(f), which concerns "diversions from the judicial process," there is different treatment of continuances depending on whether the continuance involves a finding or admission of guilt:

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 § 4A1.1(c) even if a conviction is not formally entered, except that diversion from juvenile court is not counted. ³

The inquiry as to whether Nicholas's 1993 state finding was a "finding or admission of guilt" raises several levels of issues. The first level has, at least in theory, to do with the archaic Massachusetts trial de novo system. Under that system, a defendant could have an initial trial or even a continuance without a finding and then, if he did not like the result, have a second trial de novo, with no consequences from the first trial (other than the discovery it gave defendants). ⁴ The exercise of the right to trial de novo vacates the prior judgment. See Commonwealth v. Duquette, 386 Mass. 834, 438 N.E.2d 334, 342 (1982). That being so, the theoretical issue is how a federal court could count as a finding or admission of guilt an outcome which, in effect, was not final because defendant could exercise his right to a trial de novo, or perhaps was not a reliable indicator of actual guilt, because the consequences of the admissions were so small.

The answer is that Massachusetts, in Duquette, recognized that a defendant could waive his rights to a jury trial at the second tier level of the trial de novo system. That waiver would be enforced, and the defendant's admission would be tantamount to a guilty plea, provided certain procedural safeguards were met. The safeguards, enumerated in Duquette, are that the defendant should sign a written waiver, the facts should be formalized in written stipulations, and the judge should conduct a colloquy with the defendant to ensure the defendant understands the consequences of the waiver. See id. at 342. If those safeguards were met, then the admission to sufficient facts is treated as final and as a guilty plea.

This court, in United States v. Roberts, 39 F.3d 10, 13 (1st Cir.1994), held that continuances without a finding at the second tier of the Massachusetts de novo system are countable diversionary dispositions under U.S.S.G. § 4A1.2(f) because "[w]here such an admission to sufficient facts occurs and is accepted at the second tier ... the defendant has in substance admitted to his guilt." Thus in Roberts, we held that a second tier admission to sufficient facts is almost indistinguishable from a guilty plea, and so could be counted as a finding or admission of guilt for federal sentencing purposes. Roberts involved an admission at the first tier level, and we remanded for further development of the facts as to what happened at that level or what were the regular procedures at that level.

Not surprisingly, in the aftermath of the Duquette decision, a form known as a "Duquette waiver" came to be used in the state system. By the time of the defendant's admission to sufficient facts in 1993, Massachusetts case law had clearly established that when a defendant signs a Duquette waiver at the first tier, the second tier formalities prescribed by Duquette apply. See, e.g., Commonwealth v. De La Zerda, 416 Mass. 247, 619 N.E.2d 617, 618 n. 1 (1993); Commonwealth v. Mele, 20 Mass.App.Ct. 958, 480 N.E.2d 647, 648 (1985) ("[A] District Court judge at the first tier must, if the defendant does not claim an appeal, provide the second tier safeguards of Duquette.").

Nicholas did sign a Duquette waiver at the first tier. ⁵ He thus had a continuance without a finding after an admission to sufficient facts at the first tier level and executed a Duquette waiver evidencing that procedural safeguards had been followed. He asks us to overrule Roberts or at least to fashion a rule that Roberts cannot apply to the first tier level even in the face of a Duquette waiver. Even if a panel could overrule a prior decision of this court in these circumstances, which we cannot do, we would not overrule Roberts. Assuming a valid Duquette waiver, there is no reason not to apply the Roberts holding to first tier admissions, and we so hold.

The more serious issues raised by Nicholas are whether the facts before the federal sentencing judge were adequate to conclude that there was a valid Duquette waiver and whether the record establishes an admission or finding of guilt in the state proceeding.

On the first issue, Nicholas argues that a copy of the Duquette waiver was not before the district court and the waiver (which was provided by the government to this court) in any event did not include a written stipulation of facts.

The first argument is thwarted by explicit references to the Duquette waiver in the PSR. We need not and do not refer to the copy of the waiver provided to us and do not reach the issue of whether it was properly submitted. Cf. Williams v. Poulos, 11 F.3d 271, 280-81 (1st Cir.1993)....