U.S. v. Roberts

• Decision Date: 06 May 1994
• Docket Number: No. 94-1020,94-1020
• Citation: 39 F.3d 10
• Parties: UNITED STATES of America, Appellee, v. Peter B. ROBERTS, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 10

39 F.3d 10

UNITED STATES of America, Appellee, v. Peter B. ROBERTS, Defendant, Appellant.

No. 94-1020.

United States Court of Appeals First Circuit.

Heard May 6, 1994.

Decided Oct. 27, 1994.

Diana L. Maldonado, Asst. Federal Defender, Federal Defender's Office, with whom Owen S. Walker, Chief Federal Defender, Boston, MA, was on brief for appellant.

Jeanne M. Kempthorne, Asst. U.S. Atty., with whom Donald K. Stern, U.S. Atty., Boston, MA, was on brief for the U.S.

Before CYR, BOUDIN and STAHL, Circuit Judges.

BOUDIN, Circuit Judge.

Peter C. Roberts pled guilty on September 24, 1993, to a 16-count indictment charging him with 15 counts of theft of mail by postal employee and one count of access device fraud. 18 U.S.C. Secs. 1709, 1029(a)(2). A sentencing hearing was conducted and sentence was imposed on December 17, 1993. In the course of the hearing, the district court computed the total offense level as 12, see U.S.S.G. Secs. 2B1.1, 2F1.1, and found that Roberts was in criminal history category II. The court imposed a 15-month sentence of imprisonment, which is midway in the guideline range of 12 to 18 months. On this appeal, Roberts does not contest the total offense level assigned to him but does dispute his criminal history category.

The district court determined Roberts' criminal history category by assigning Roberts one criminal history point for a 1992 state court guilty plea to charges of embezzlement by a fiduciary and larceny. See U.S.S.G. Sec. 4A1.1(c). A second point was assigned because in 1986, Roberts had been charged in Massachusetts state court with operating a motor vehicle under the influence of alcohol and operating to endanger; both charges were continued by the state court without a finding, upon Roberts' admission to sufficient facts to sustain a finding of guilt. The second criminal history point was sufficient to push Roberts into category II. See U.S.S.G. Sentencing Table.

The main dispute on this appeal centers around the following guidelines provision contained in the paragraph that provides definitions and instructions for computing criminal history:

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

U.S.S.G. Sec. 4A1.2(f). The issue is how this provision applies to the disposition of the charges against Roberts in 1986 by a continuance based on admission to sufficient facts to sustain a finding of guilt.

The government has maintained throughout that Roberts' admission to sufficient facts led to a "diversionary disposition resulting from a finding or admission of guilt ... in a judicial proceeding," U.S.S.G. Sec. 4A 1.2(f), and the district court agreed. Roberts, supported by United States v. Kozinski, 16 F.3d 795 (7th Cir.1994), says that there was no finding or admission of "guilt," so that the outcome is governed by the first sentence of the quoted paragraph or, in any event, does not fall within the second. ¹ We regard the issue as a close one that, for reasons shortly to be explained, cannot be settled definitively on this record.

The Massachusetts practice that gave rise to the disputed disposition is a composite of procedures that has been modified several times. ² As matters stood when Roberts' case was considered in 1986, Massachusetts afforded a defendant facing charges in the state district court with several options; one of these options allowed the defendant to obtain a bench trial ("the first tier") and then, if unhappy with the outcome, to appeal to obtain a de novo trial in the same court before a six-person jury ("the second tier"). See Commonwealth v. Duquette, 386 Mass. 834, 438 N.E.2d 334 (1982). At the first tier, the defendant could also choose to forego a bench trial and advance to the second tier by admitting to sufficient facts to warrant a finding of guilt. Duquette, 438 N.E.2d at 338.

It appears that often in such instances a case was not advanced to the second tier but instead continued without a formal finding of guilt or innocence. In conjunction with the continuance, the court imposed conditions, such as supervision by a probation officer, restitution, or (as in this case) submission to an abuse treatment program. Technically, where a case was continued without a finding, there was no final disposition and therefore no appeal, de novo or otherwise. ³ On the other hand, it appears that a dissatisfied defendant could insist on a formal disposition and exercise his or her right to a trial de novo, expunging the first-tier disposition. See Mann v. Commonwealth, 359 Mass. 661, 271 N.E.2d 331, 332-33 (1971).

Roberts' argument in this case starts with the guideline language imposing criminal history points where a diversionary disposition results from "a finding or admission of guilt ... in a judicial proceeding...." U.S.S.G. Sec. 4A1.2(f). There is no evidence that the judge in Roberts' 1986 proceeding made a formal finding of guilt. There is also no indication that Roberts made an "admission of guilt" in the sense of pleading guilty or using the word "guilty" or saying "yes" when asked whether he admitted his guilt. This, says Roberts, means that under the guideline language no criminal history points can be assigned for the 1986 disposition.

This literal approach was apparently persuasive to the Seventh Circuit in Kozinski, 16 F.3d at 811-12. Under local law, an Illinois state court may defer prosecution and impose supervision either if the defendant pleads guilty or if he or she stipulates to "facts supporting the charge or a finding of guilt." Id. at 812. The Seventh Circuit said summarily that the latter stipulation "does not in any way equate with an admission of guilt or an adjudication of guilt" and, under the sentencing guidelines, it amounts to diversion from the judicial process "without a finding of guilt (e.g., deferred prosecution)" for which no criminal history points may be awarded. Id. Compare United States v. Hines, 802 F.Supp. 559 (D.Mass.1992) (reaching the opposite result).

In this court, the government takes the view that Kozinski was wrongly decided, although its brief makes a half-hearted attempt to distinguish the case. We agree that the phrase "admission of guilt" does not have so clear and precise a meaning as to foreclose its extension to a defendant's admission to sufficient facts to warrant a finding of guilt. The guideline by its terms uses the word "admission" and does not require a formal plea of guilty, U.S.S.G. Sec. 4A1.2; and the commentary speaks of counting diversionary dispositions if they involved "an admission of guilt in open court." Id. comment. (n.9). More important, the guideline has a purpose that helps us decide disputes about ambiguous language.

In determining criminal history points, the sentencing guidelines impose points automatically where there has been an "adjudication of guilt," U.S.S.G. Sec. 4A1.2(a)(1), but merely permit the trial court to depart where the court determines that the defendant's criminal history category "does not adequately reflect the seriousness of the defendant's past criminal conduct...." U.S.S.G. Sec. 4A1.3. This preference for adjudications of guilt presumably reflects the desire to fasten on what can readily be proved and the reasonable assurance that one who has pled guilty or been found guilty did commit the prior crime in question. Cf. Fed.R.Evid. 609 (allowing convictions to be used for impeachment).

In Massachusetts an admission to sufficient facts is apparently recorded with about the same formality as a plea, see Mass.R.Crim.P. 12(a)(3), and so satisfies the readily-proved criterion. Whether an admission to sufficient facts adequately assures that the defendant committed the prior crime in question may be a closer question. There are two different reasons for concern. Both exist only where the defendant's admission to sufficient facts occurs at the first tier of the process, but that is where Roberts' admission did occur.

The first concern is that a defendant who has available a trial de novo, even after the admission to sufficient facts, may have so little invested in the admission as to make it unreliable as an admission of guilt. Evidently, many defendants use the continuance and admission procedure to see if the condition imposed is so light as to make the matter not worth contesting. Where the offense carries little moral opprobrium and where the penalty is extremely light, one might question whether a defendant's admission to sufficient facts creates an overwhelming likelihood that the defendant has done the deeds to which he or she admitted.

But this same doubt exists wherever a defendant plea bargains for a light sentence and thereafter pleads guilty. In that instance, there would be an admission of guilt within the literal language of the guidelines, and we do not think that a court would disregard the admission of guilt merely because the defendant might have pled for opportunistic reasons. The guidelines embody all manner of compromises. A defendant who commits a new crime after creating a prior criminal record has fair warning that the record may haunt him or her in sentencing, absent quite extraordinary circumstances.

The second concern, less easily overcome, relates to process. In Duquette, the Supreme Judicial Court made clear that an admission to sufficient facts, where it occurs at the second tier, must be treated with a formality that makes it almost indistinguishable from a guilty plea. There are required warnings: the judge must "prob[e] the defendant's understanding," and must "satisfy himself that there is a factual basis for a finding of guilty." 438 N.E.2d at 342. Where such an...