U.S. v. Correa

• Decision Date: 05 May 1997
• Docket Number: No. 96-2159,96-2159
• Citation: 114 F.3d 314
• Parties: UNITED STATES of America, Appellee, v. Nelson Rosalio CORREA, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 314

114 F.3d 314

UNITED STATES of America, Appellee, v. Nelson Rosalio CORREA, Defendant, Appellant.

No. 96-2159.

United States Court of Appeals First Circuit.

Heard May 5, 1997.

Decided May 29, 1997.

Elizabeth A. Lunt, with whom Zalkind, Rodriguez, Lunt & Duncan, Boston, MA, were on brief, for appellant.

Donald L. Cabell, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief, for appellee.

Before SELYA, Circuit Judge, COFFIN and CYR, Senior Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Nelson Rosalio Correa challenges that part of his sentence which depends upon the district court's allegedly erroneous computation of his criminal history score. We first must resolve an issue that divides the circuits. Once that is behind us, we detect no miscalculation and therefore affirm the sentence.

I Background

We cull the largely undisputed facts from the plea colloquy, the presentence investigation report, and the transcript of the sentencing hearing. See United States v. Garcia, 954 F.2d 12, 14 (1st Cir.1992); United States v. Dietz, 950 F.2d 50, 51 (1st Cir.1991).

A native of the Dominican Republic, Correa resided legally in the United States for a short spell. That sojourn ceased on January 5, 1994, when, after having been convicted of various crimes committed between 1989 and 1993, he was deported. We do not chronicle the complete compendium of Correa's criminal capers, but confine ourselves to conveying the contours of certain crimes that possess particular pertinence for present purposes.

1. The February Offenses. On March 13, 1991, the Commonwealth of Massachusetts issued a criminal complaint (later served by summons) which charged Correa, then 19 years of age, with three counts of breaking and entering and one count of larceny. See Mass. Gen. Laws ch. 266, §§ 16A, 30 (1990). The charges arose from a spree that occurred on February 19, 1991; on that date, Correa raided three separate automobiles parked in Danvers, Massachusetts, and absconded with ill-gotten gain from one.

2. The June Offenses. Some months later, Correa, still 19, was charged with falsifying his age to purchase alcoholic beverages, in violation of Mass. Gen. Laws ch. 138, § 34A (1991), and contributing to the delinquency of a child for buying and serving alcohol to two boys, ages 12 and 15, respectively, in violation of Mass. Gen. Laws ch. 119, § 63 (1993). The infractions were alleged to have occurred on June 8, 1991, in Beverly, Massachusetts.

3. The State Court Disposition Hearing. On October 28, 1992, Correa pled guilty in a state district court to all charges arising from both incidents. With respect to the February offenses, the court imposed a nine-month sentence on the three breaking-and-entering counts and filed the larceny conviction. With respect to the June offenses, the court filed all the convictions. ¹

In due course, the government deported Correa. Little daunted, he reentered the United States unlawfully in 1995 and found his way to Lynn, Massachusetts. The authorities eventually apprehended him and pressed a charge of illegal reentry after deportation. See 8 U.S.C. § 1326 (1994). Correa pled guilty to this accusation in federal district court. The sentencing proceeding that followed comprises the cynosure of this appeal. ²

We set the stage. In applying the sentencing guidelines, a nisi prius court, among other things, transposes the defendant's criminal past into "criminal history points," thus obtaining a "criminal history score" which yields a "criminal history category." See United States v. Emery, 991 F.2d 907, 909-10 (1st Cir.1993) (illustrating the process). Since the guideline sentencing range (GSR) is derived from a grid and is determined in a given case by correlating the defendant's criminal history category with his adjusted offense level, see United States v. Diaz-Villafane, 874 F.2d 43, 47-48 (1st Cir.1989), criminal history points can profoundly affect the length of a sentence.

This case typifies the phenomenon. In the course of his sentencing calculations, Judge O'Toole treated the February offenses as comprising one crime and the June offenses as comprising another, unrelated crime. Hence, he assigned criminal history points for each. On that basis, Correa garnered a criminal history score of 7, which placed him in criminal history category IV. Had the judge treated the February and June offenses as related rather than unrelated, or had he deemed the June offenses unworthy of consideration, Correa's criminal history score would have dropped by one point, placing him in criminal history category III. At Correa's adjusted offense level (19), the single criminal history point accounted for a substantial increase in his GSR (which rose from 37-46 months to 46-57 months). See USSG ch. 5, Pt. A (sentencing table).

Having added the disputed criminal history point and fixed the GSR at 46-57 months, the judge then accepted the government's recommendation, incorporated in the plea agreement, that Correa be sentenced at the nadir of the applicable range. Consequently, the court imposed a 46-month incarcerative sentence. This appeal ensued. In it, the appellant contends that the district court erred in adding the extra criminal history point. He makes two arguments in support of this contention. We treat these arguments sequentially.

II Related Cases

The guidelines require the assessment of criminal history points for "each prior sentence." USSG § 4A1.1. But there are exceptions. One such exception authorizes sentences imposed in what the Sentencing Commission calls "related cases" to be treated as a single sentence. See USSG § 4A1.2(a)(2). Insofar as pertinent here, sentences are considered related "if they resulted from offenses that ... were consolidated for trial or sentencing." Id., comment. (n.3). At sentencing, Correa argued unsuccessfully that the February and June offenses fell within this safe harbor (and, therefore, should be deemed related) because the state court had in effect consolidated them for sentencing. Judge O'Toole rejected the notion that these disparate offenses constituted a set of related cases. ³ Correa now presses this argument on appeal.

The standard of review in sentencing appeals ordinarily is deferential. See 18 U.S.C. § 3742(e) (1994); see also Dietz, 950 F.2d at 52. Thus, "where there is more than one plausible view of the circumstances, the sentencing court's choice among supportable alternatives" is not clearly erroneous and a reviewing tribunal cannot disturb it. United States v. Ruiz, 905 F.2d 499, 508 (1st Cir.1990). However, to the extent that an alleged error involves the district court's interpretation of a sentencing guideline, it presents a question of law warranting plenary review. See United States v. Santiago, 83 F.3d 20, 26 (1st Cir.1996); United States v. St. Cyr, 977 F.2d 698, 701 (1st Cir.1992). So it is here.

In United States v. Elwell, 984 F.2d 1289 (1st Cir.1993), we intimated that a mere coincidence in timing, without more, is not enough to justify treating convictions that do not possess common antecedents as having been consolidated for purposes of sentencing. See id. at 1296 n. 7 (explaining that such convictions cannot be "deemed 'constructively' consolidated because of ... [a] plea bargain and concurrent sentences") (dictum). We now transform the Elwell adumbration into an express holding: at least in respect to offenses that are temporally and factually distinct (that is, offenses which occurred on different dates and which did not arise out of the same course of conduct), charges based thereon should not be regarded as having been consolidated (and, therefore, "related") unless the original sentencing court entered an actual order of consolidation or there is some other persuasive indicium of formal consolidation apparent on the face of the record which is sufficient to indicate that the offenses have some relationship to one another beyond the sheer fortuity that sentence was imposed by the same judge at the same time.

In so holding, we align ourselves with a number of our sister circuits which have reached a substantially similar conclusion. See, e.g., United States v. Patasnik, 89 F.3d 63, 74 (2d Cir.1996); Green v. United States, 65 F.3d 546, 548-49 (6th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 826, 133 L.Ed.2d 769 (1996); United States v. Allen, 50 F.3d 294, 298-99 (4th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 2630, 132 L.Ed.2d 870 (1995); United States v. Alberty, 40 F.3d 1132, 1134-35 (10th Cir.1994), cert. denied, 514 U.S. 1043, 115 S.Ct. 1416, 131 L.Ed.2d 300 (1995); United States v. Klein, 13 F.3d 1182, 1185 (8th Cir.1994); United States v. Garcia, 962 F.2d 479, 483 (5th Cir.1992). By the same token, we reject the minority view embodied in United States v. Smith, 991 F.2d 1468, 1473 (9th Cir.1993) (envisioning "no need for a formal consolidation order for cases to be 'related' under section 4A1.2").

We are cognizant that some may see insistence on a formal indicium of consolidation, such as an order or a docket entry, as arbitrary. But judicial inquiry into a defendant's criminal past for sentencing purposes, properly conceived, requires only a snapshot of the surface, not an archeological dig. Thus, when a federal court is obliged to tabulate a defendant's criminal history score for sentencing purposes, limiting the requisite inquiry to the formal record--the indictment, the docket entries, the judgment of conviction, and the like--strikes the right balance. Moreover, it does so in a manner that supplies needed uniformity while husbanding scarce judicial resources.

This approach also is in keeping with the way in which we have treated analogous matters. After all, when a federal court looks to a prior state conviction in formulating its sentencing calculus, the court most often characterizes the previous conviction by means of a formal categorical...