United States v. Caparotta

• Decision Date: 05 April 2012
• Docket Number: No. 11–1713.,11–1713.
• Citation: 676 F.3d 213
• Parties: UNITED STATES of America, Appellee, v. Brandon CAPAROTTA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

676 F.3d 213

UNITED STATES of America, Appellee,

v.Brandon CAPAROTTA, Defendant, Appellant.

No. 11–1713.

United States Court of Appeals, First Circuit.

Heard Feb. 6, 2012.Decided April 5, 2012.

Tina Schneider, by Appointment of the Court, for appellant.

Renée M. Bunker, Assistant U.S. Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

Before LYNCH, Chief Judge, SOUTER,^* Associate Justice, and STAHL, Circuit Judge.STAHL, Circuit Judge.

After pleading guilty to stealing firearms and possessing stolen firearms, defendant Brandon Caparotta received a sentence of fifty-four months' imprisonment. That sentence was based, in part, on the district court's finding that Caparotta qualified as a “prohibited person” who, because of his history of substance abuse, was barred from possessing firearms. Caparotta raises two arguments on appeal, both stemming from an interview with the Pretrial Services Office during which he disclosed information about his drug use at the time of the offense. That information, he claims, was obtained upon a promise of confidentiality, and it was therefore a violation of his due process rights and of Federal Rule of Criminal Procedure 32 for it to be included in his Presentence Investigation Report (PSR) and used against him at sentencing. He also claims that he was denied the effective assistance of counsel, in violation of the Sixth Amendment, when his trial attorney allowed him to disclose the information. We find that Caparotta's due process claim is waived, that he has not demonstrated a violation of Rule 32, and that his Sixth Amendment claim fails. We therefore affirm.

During the early morning hours of August 23, 2010, Caparotta participated in a burglary of the Mill Creek Rod and Gun store, a federally-licensed firearms dealer in Orrington, Maine. Caparotta was arrested on August 26, 2010. On August 27, 2010, the Pretrial Services Office conducted an interview with Caparotta (which we will refer to as the “bail interview”) to determine whether he was eligible for release on bond. Caparotta's attorney was present at that interview, during which Caparotta discussed, among other things, his history of substance abuse.

After the interview, the Pretrial Services Office issued a Pretrial Services Report, dated August 31, 2010. According to the report, Caparotta admitted during the bail interview that he had begun using marijuana at age nine (some ten years prior), used it twice per week, and had last used it “two days ago.” ¹ He also admitted to heroin use beginning at age fourteen and ending three years prior and to Vicodin use beginning at age sixteen and ending four weeks prior. The report also indicated that Caparotta had received residential and outpatient treatment for substance abuse in the past. The following “Notice of Confidentiality” appeared at the top of the report: “Pursuant to Title 18 U.S.C. 3153(c)(1), ‘... Information obtained in the course of performing pretrial services functions in relation to a particular accused shall be used only for the purpose of a bail determination and shall otherwise be confidential.’ ”

On November 10, 2010, Caparotta pled guilty to one count of stealing firearms from the premises of a federally-licensed dealer, in violation of 18 U.S.C. § 922(u), and one count of possessing stolen firearms, in violation of 18 U.S.C. § 922(j). Included in the prosecution's version of events, to which Caparotta consented when he pled guilty, were descriptions of several text messages he had sent to Robert Barker, who allegedly stored stolen guns for Caparotta and purchased guns from him. The text messages, obtained through a search of Barker's cell phone, revealed that Caparotta had been soliciting drugs and referencing his own drug use in the days immediately surrounding the crime.²

In December 2010, the Probation Office conducted a presentence investigation interview (which we will refer to as the “presentence interview”) with Caparotta, at which Caparotta's attorney was also present. Again, Caparotta discussed his substance abuse history, but this time, on the advice of his attorney, he declined to discuss any drug use specifically in August 2010. In its ensuing PSR, dated December 29, 2010, the Probation Office noted that Caparotta had reported “a significant history of substance abuse,” including that he used marijuana “ ‘all day long’ through August 2010.” The PSR also discussed Caparotta's past use of several other drugs, including morphine, heroin, powder cocaine, crack cocaine, opiate pain killers, and LSD. Though Caparotta's base offense level (BOL) would otherwise have been 12, see U.S.S.G. § 2K2.1(a)(7), the Probation Office recommended a BOL of 14 because Caparotta “was a regular user of and addicted to illegal drugs” at the time he committed the offense and thus qualified as a “prohibited person,” see id. § 2K2.1(a)(6).³

We pause for a moment to explain that term. The federal Sentencing Guidelines require a BOL of 14 if the defendant “was a prohibited person at the time [he] committed the instant offense.” Id. The Guidelines define “prohibited person” as any person described in 18 U.S.C. § 922(g) or (n). Id. § 2K2.1 cmt. n. 3. Section 922(g)(3), applicable here, bars firearm possession by a person “who is an unlawful user of ... any controlled substance.” 18 U.S.C. § 922(g)(3). We have held that the term “unlawful user” in section 922(g)(3) “requires a ‘temporal nexus between the gun possession and regular drug use.’ ” United States v. Marceau, 554 F.3d 24, 30 (1st Cir.2009) (citing United States v. Edwards, 540 F.3d 1156, 1162 (10th Cir.2008)). Thus, “an ‘unlawful user’ is one who engages in ‘[ (1) ] regular use [ (2) ] over a long period of time [ (3) ] proximate to or contemporaneous with the possession of the firearm.’ ” Id. (citing United States v. McCowan, 469 F.3d 386, 392 n. 4 (5th Cir.2006)).

Caparotta objected to the PSR's finding that he was a “prohibited person” on the grounds that he had not admitted, during the presentence interview, that he had been using drugs at the time of the offense in August 2010. In an Addendum to the PSR, filed on January 26, 2011, the Probation Office confirmed that, during his presentence interview, Caparotta had declined to discuss “drug use near the time of the possession of the firearms” but noted that he had “indicated that he was a regular drug abuser through July 2010, with the instant offense occurring on August 23, 2010.” The Addendum also stated that, during his bail interview on August 27, 2010, Caparotta had “admitted that he had last smoked marijuana a couple of days ago and was using the drug twice a week.”

In a February 23, 2011 sentencing memorandum, Caparotta expounded upon his objection to the use of his bail interview statements that he had last used marijuana “two days ago” and was using the drug twice a week in August 2010. ⁴ He invoked 18 U.S.C. § 3153(c)(1), which states that “[e]xcept as provided in [ 18 U.S.C. § 3153(c)(2)], information obtained in the course of performing pretrial services functions in relation to a particular accused shall be used only for the purposes of a bail determination and shall otherwise be confidential.” Caparotta argued that there was no applicable exception in section 3153(c)(2) and that section 3153(c)(3) explicitly bars the admission of information made confidential under section 3153(c)(1) “on the issue of guilt in a criminal judicial proceeding.” 18 U.S.C. § 3153(c)(3).

At a sentencing hearing on June 6, 2011, the district court found that Caparotta was an unlawful user of controlled substances and thus a “prohibited person.” The court rejected Caparotta's argument that section 3153(c) bars the use of bail interview statements at sentencing, noting that “the language [of that section] is restricted to guilt” and “[w]e're not deciding the issue of guilt today.” As for whether, considering the bail interview information, Caparotta's drug use was sufficiently proximate to or contemporaneous with the offense to satisfy the “unlawful user” standard, see Marceau, 554 F.3d at 30, the district court recognized that there was “no direct evidence that [Caparotta] actually used marijuana ... as he was holding the gun at the Mill Creek Rod and Gun shop” but nonetheless found that Caparotta's use of marijuana through August 2010 made it clear that he was an unlawful user.

The court thus used a BOL of 14 and applied the increases and reduction that the Probation Office had recommended.⁵ With a total offense level of 23 and a Criminal History Category of II, Caparotta's recommended guideline sentencing range was fifty-one to sixty-three months. The court imposed a sentence of fifty-four months on each count, to run concurrently. Had the district court not found Caparotta to be a “prohibited person,” the government concedes that his offense level would have been at least four points lower. ⁶ In this timely appeal, Caparotta challenges the district court's conclusion that he was a “prohibited person” and argues that he was denied the effective assistance of counsel when his attorney allowed him to disclose his August 2010 drug use during the bail interview.

We begin with the “prohibited person” classification. The first two prongs of the Marceau test are not at issue here; Caparotta does not contest the district court's finding that he engaged in regular drug use over a long period of time. 554 F.3d at 30. He takes issue only with the district court's determination that his drug use was “proximate to or contemporaneous with the possession of the firearm.” Id. Specifically, he argues that it was a violation of his due process rights and of Federal Rule of Criminal Procedure 32 for the Probation Office to include in his PSR, and for the district court to consider at sentencing, his bail interview statements regarding his drug use in August 2010, which he says he provided based on a promise of...