Mateo v. U.S., 03-2409.

• Decision Date: 18 February 2005
• Docket Number: No. 03-2472.,No. 03-2409.,03-2409.,03-2472.
• Parties: Felix MATEO, Petitioner, Appellee, v. UNITED STATES of America, Respondent, Appellant. United States of America, Appellant, v. Felix Mateo, a/k/a Johnny, a/k/a Charlie, a/k/a Manuel Lluberes, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

398 F.3d 126

Felix MATEO, Petitioner, Appellee, v. UNITED STATES of America, Respondent, Appellant.

United States of America, Appellant, v. Felix Mateo, a/k/a Johnny, a/k/a Charlie, a/k/a Manuel Lluberes, Defendant, Appellee.

No. 03-2409.

No. 03-2472.

United States Court of Appeals, First Circuit.

Heard October 5, 2004.

Decided February 18, 2005.

James M. Fox for petitioner.

Dina Michael Chaitowitz, Assistant U.S. Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for respondent.

Before TORRUELLA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and LIPEZ, Circuit Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

This is an appeal by the United States from the district court's granting of relief to Felix Mateo¹ pursuant to 28 U.S.C. § 2255. At issue is Mateo's right to obtain a reduced federal sentence following state court orders undermining a state conviction and sentence that had been used to enhance his original federal sentence.

On August 25, 2000, Mateo was sentenced in the United States District Court for the District of Massachusetts on drug-related charges. In calculating the criminal history component of the Sentencing Guidelines, the district court counted three criminal history points. The multiplicity of criminal history points resulted from evidence that Mateo had committed the federal offenses while subject to an outstanding state warrant for violation of a probationary sentence imposed for conviction of a Massachusetts narcotics offense.² Five months after the original federal sentence, Mateo obtained an order from a state court judge terminating the state probationary sentence nunc pro tunc to a date prior to the time he had committed the federal offenses of conviction. Armed with the state nunc pro tunc order, Mateo then successfully petitioned the federal district court under 28 U.S.C. § 2255 for a reduction in the federal sentence it had earlier imposed. Additionally — and before the court below had reduced its earlier sentence — Mateo further obtained from the state court an order vacating the guilty plea that had been the foundation of the state conviction and probationary sentence used to enhance his federal sentence. Finding Mateo's original guilty plea to have been premised on a constitutionally insufficient colloquy, the state court vacated his guilty plea, ordered a new trial, and filed the charges against Mateo.

The United States now appeals from the district court's reduced sentence calculated on zero rather than three criminal history points. The district court's principal rationale for its reduction — and the principal subject of the parties' arguments on appeal — was the state court's nunc pro tunc termination of Mateo's state term of probation, a termination which, the district court believed, deprived the state sentence of its ability to enhance the federal sentence under the Sentencing Guidelines.

This is the third time the parties have appealed to this Court in respect to the sentences in the federal drug case in question. See United States v. Mateo, 271 F.3d 11 (1st Cir.2001) (Mateo I); Mateo v. United States, 310 F.3d 39 (1st Cir.2002) (Mateo II). After consideration of the district court's and our prior decisions as well as the state court decisions and other circumstances of this case, we affirm the district court's reduction of its original sentence. In so doing, however, we do not follow the district court's rationale premised on the state court's nunc pro tunc termination of the term of probation but rather rely on the state court's vacation and filing of the state conviction. See United States v. Johnson, 952 F.2d 565, 584 (1st Cir.1991) (considering applicability of Sentencing Guidelines provisions not specifically considered by the district court); Doe v. Anrig, 728 F.2d 30, 32 (1st Cir.1984) (court of appeals free to affirm based on any ground supported by the record).

I. Background

On April 11, 1995, Mateo appeared in West Roxbury District Court, a Massachusetts state court. The court accepted his plea of admission to sufficient facts and entered a finding of guilty on a charge of distributing heroin.³ The state court imposed a suspended sentence, placing Mateo on probation for two years, a period that would ordinarily have ended on April 11, 1997 had Mateo complied with the terms of his probation.

According to the West Roxbury probation office, Mateo failed after April 3, 1996 to report to probation authorities as required by the terms of the probation. On April 9, 1997, two days before the April 11th end of his probationary period, the probation office sent Mateo a notice, instructing him to report for a compliance hearing. Mateo failed to report for the hearing. On July 14, 1997, the probation office sent Mateo another notice, informing him that he had violated the terms of his probation and instructing him to appear for a surrender hearing on September 9, 1997. Mateo did not appear at the surrender hearing, and the state court thereupon, on the same date, issued a default warrant for his arrest. The warrant remained outstanding until at least January 5, 1999 at which time Mateo was arrested on federal charges and placed in custody.

On January 27, 2000, Mateo pled guilty in federal district court to the various federal drug-related offenses, including conspiracy to possess cocaine base with intent to distribute, in violation of 21 U.S.C. § 846, and distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1). Mateo's role in the conspiracy commenced in March of 1998 and continued to about January 5, 1999. The distribution offenses occurred on or about March 27, 1998 and on or about January 5, 1999. Mateo's base offense level was 34. He received a three-level credit for acceptance of responsibility. See USSG § 3E1.1. Because of the quantity of drugs involved, Mateo was subject to a ten-year minimum mandatory sentence. See 21 U.S.C. § 841(b)(1)(A)(iii).

On August 25, 2000, the district court sentenced Mateo to 121 months in prison. In calculating the criminal history component of the Sentencing Guidelines, the district court added one criminal history point for the Massachusetts drug conviction and two additional points based on its finding that Mateo had committed the federal drug offenses while under a criminal justice sentence for that conviction. See USSG § 4A1.1(d). Under the relevant guideline, the addition of two points was mandatory if the offense was committed under "any criminal justice sentence, including probation." Id. A defendant who commits a federal offense "while a violation warrant from a prior [probation] sentence is outstanding ... shall be deemed to be under a criminal justice sentence if that sentence is otherwise countable, even if that sentence would have expired absent such warrant." Id. § 4A1.2(m); see also id. § 4A1.1(d), cmt. n. 4.

The court's finding that the crimes were committed while Mateo was under a criminal justice sentence not only moved Mateo into a higher criminal history category but rendered him ineligible for the "safety valve" provision, USSG § 5C1.2. Mateo had unsuccessfully argued that he should be in a lesser criminal history category and eligible for the "safety valve" on the ground that the probationary sentence stemming from his prior state court conviction was invalid because the warrant had been illegally issued after the termination date of the probationary period. The district court, in its original sentencing, rejected this reasoning, used the higher criminal history category to fix the guideline sentencing range (121-151 months), and imposed a sentence at the low end of the range. The district court advised Mateo that his sentence was "all without prejudice to [him] getting [his probation violation] warrant vacated in state court."

On September 5, 2000, Mateo filed a notice of appeal to this Court from his foregoing federal sentence. On October 12, 2000, while his appeal here was pending, Mateo filed a motion in state court to vacate his guilty plea in the West Roxbury District Court, arguing, inter alia, that the plea was invalid because the court "accepted his plea without inquiring whether the plea was made intelligently, with full knowledge and understanding of all the elements of the charge against him." Mateo argued that the judge and his attorney never explained the elements of the charge. He asserted that "[he] believed [he] was pleading to simple possession, not possession with intent to distribute."

On December 13, 2000, counsel for Mateo wrote to a probation officer at the West Roxbury District Court:

I recently represented [Mateo] in a drug prosecution brought in United States District Court. He was sentenced to 121 months in prison. If the defendant's probation in the above referenced case had been terminated prior to the date of his federal offense, March 27, 1998, he would have received a sentence of 87 months. The judge who sentenced [Mateo] told me that if I could obtain an order from the West Roxbury Court indicating that probation should have terminated prior to March 27, 1998, the judge will resentence [Mateo] to 87 months. Regardless whether the defendant serves 87 or 121 months he will be deported upon wrapping his federal sentence.⁴

The following day, Mateo filed a motion in state court to terminate his probation nunc pro tunc to April 11, 1997. The argument section of Mateo's motion stated in its entirety:

Argument:

The defendant contends that his probation terminated on April 11, 1997. The probation office did not initiate process to surrender the defendant until July 14, 1997. The defendant had completed probation and the warrant was issued in error. Commonwealth v. Mitchell, 46 Mass.App.Ct. 921, 922, 708 N.E.2d 961 (1999).

In granting the motion, the state judge marked on the face of Mateo's motion papers: "After hearing, the motion is allowed. [Defendant] is found in violation of probation. Probation is terminated nunc pro...