United States v. Curet
| Decision Date | 11 January 2012 |
| Docket Number | No. 10–1176.,10–1176. |
| Citation | 670 F.3d 296 |
| Parties | UNITED STATES, Appellee, v. Alex CURET, a/k/a/ A.J., Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
OPINION TEXT STARTS HERE
Karen A. Pickett, with whom Donnelly, Conroy & Gelhaar, LLP was on brief, for appellant.
Cynthia A. Young, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
Before LYNCH, Chief Judge, TORRUELLA and SELYA, Circuit Judges.
Alex Curet appeals his below-guidelines career offender sentence of 174 months after a plea of guilty to three counts of conspiracy to distribute cocaine base and distribution of cocaine base within 1,000 feet of a school. His appeal raises an issue that we have not resolved before: whether a Massachusetts state-court “guilty-filed” disposition qualifies as a “conviction” for purposes of the career offender guidelines, U.S.S.G. § 4B1.1(a)(3). We hold that it does, and that federal law controls the issue. We affirm Curet's sentence.
Alex Curet and a co-defendant were indicted on December 12, 2007. Count one charged that, beginning on September 25, 2007, and continuing until at least October 3, 2007, Curet conspired with others to distribute at least five grams of cocaine base in Boston, in violation of 21 U.S.C. § 841(a)(1). Two instances of distribution, on September 25 and October 3, each involving at least five grams of cocaine base, were within 1,000 feet of a school, providing the basis for counts two and three. 21 U.S.C. §§ 841(b)(1)(B)(iii), 860.
On December 13, 2007, the government filed an information to establish that Curet had a prior state felony conviction in April 2005 for possession of a class D substance with intent to distribute and of a drug violation near a school, in violation of Mass. Gen. Laws ch. 94C, §§ 32C, 32J. This § 851 information, see 21 U.S.C. § 851, subjected Curet to a mandatory minimum sentence of ten years.1
Curet initially pled not guilty to all three counts of the indictment. On October 27, 2008, at a change of plea hearing, Curet pled guilty to all three counts. Sentencing was initially scheduled for January 29, 2009, but was postponed several times.
On December 30, 2008, the initial pre-sentence report (PSR) found that Curet (A) had a base offense level of 24, because he was responsible for distribution of 13.95 grams of cocaine base, and (B) was a career offender under the guidelines, because he had at least two prior felony convictions: (1) a 2003 state-court “youthful offender” adjudication of distribution of class B substances and distribution of a controlled substance in a school zone; (2) a 2003 state-court “guilty-filed” disposition for resisting arrest, which took place when Curet was seventeen years old; and (3) the April 2005 state-court conviction for distribution of class D substances that was outlined in the § 851 information. This led to a total offense level of 35, and a guideline imprisonment range of 292 to 365 months.
On January 23, 2009, Curet pro se filed a letter with the court challenging the § 851 information and requesting a hearing before sentencing. On February 4, 2009, Curet's attorney filed a notice of intent to challenge the § 851 information, on the basis that the 2005 state-court conviction was unconstitutional.
The government moved to strike the notice of intent the same day, for failure to satisfy the statutory requirement that “[a] person claiming that a conviction alleged in the information was obtained in violation of the Constitution of the United States shall set forth his claim, and the factual basis therefor, with particularity in his response to the information.” Id. § 851(c)(2).
On February 13, 2009, Curet objected to the PSR, challenging the career-offender designation, but solely on the basis that the 2005 drug conviction was constitutionally invalid.
The next day, Curet challenged the § 851 information, arguing that the April 2005 felony drug conviction was constitutionally infirm on the ground of ineffective assistance of counsel and because his guilty plea to that offense was not knowing and voluntary. The government's response contested all of Curet's claims and argued that it was clear from the state-court plea colloquy that Curet's claims were without merit.
On December 4, 2009, the government filed its sentencing memorandum, recommending a below-guideline sentence of 174 months. On January 19, 2010, the government filed a supplemental response regarding the § 851 memorandum, stating that Curet's constitutional claims regarding the April 2005 drug conviction had been heard and resolved against him in the state district court which had accepted the plea and imposed the sentence.
Sentencing took place on February 2, 2010. At the outset of the hearing, the prosecutor explained that he had discussed the § 851 information issue with Curet's counsel, and that because the Massachusetts state court had rejected Curet's claims, their view was that “the challenge to the 851 here is moot, obviously subject to if he were able to appeal the state court judge's denial of the motion to vacate.” 2 The district court twice asked Curet's counsel whether he agreed, and counsel responded with “I agree with that statement.” Turning to Curet's objections to the PSR, the district court asked whether the objection to Curet's career offender status, which was based on the same 2005 conviction as was at issue in the § 851 information, was “waived by virtue of the earlier” discussion, and Curet's attorney agreed that the objection was waived.
The district court found, as had the PSR, that after consideration of the career offender provisions, Curet was subject to a total career offender offense level of 35. Curet's attorney agreed with these calculations.
The court then found that Curet had three state career offender predicates: the 2003 youthful offender adjudication, the 2003 resisting arrest guilty-filed disposition, and the 2005 drug conviction. Curet's attorney did not object to the counting of all three of these convictions as career offender predicates. The court then found, as had the PSR, that Curet's guideline range was 292 to 365 months, to which there was again no objection.
Counsel for the government and for Curet made their sentencing recommendations to the court, and then Curet spoke, explaining that he had delayed in pleading guilty because he was hoping for a favorable plea agreement, and “was still kind of confused about this whole career offender and 851 situation.” He said that he had not meant to plead guilty to the intent to distribute charge in 2005, but rather simply to possession, and that he didn't understand why that conviction was deemed a prior drug conviction, as it should have been vacated.
The district court then sentenced Curet to the 174 months recommended by the government, varying downward from the guidelines. Curet timely appealed.
Curet raises three challenges to his sentence: (1) that the district court committed reversible error in failing to conduct a hearing and colloquy regarding the 21 U.S.C. § 851 information, (2) that he was improperly classified as a career offender under the federal sentencing guidelines, and (3) that the provisions of the Fair Sentencing Act of 2010, Pub.L. No. 111–220, 124 Stat. 2372, and the attendant modifications of the guidelines, should retroactively apply to him. Each challenge fails.
Curet argues that the district court was required to conduct a hearing pursuant to 21 U.S.C. § 851(c) as to the April 2005 state conviction, notwithstanding his attorney's representation to the court that the issue was moot given the state court's refusal to vacate his conviction. This error, he argues, warrants reversal. Curet also argues that even if such a hearing was not required, the district court was required to conduct the colloquy prescribed by 21 U.S.C. § 851(b). Both claims fail. Curet expressly waived his right to a hearing, and did not expressly request a colloquy. While the district court should have conducted a colloquy, Curet is unable to demonstrate plain error and thus this lapse does not provide grounds for altering Curet's sentence.
Section 851 imposes a set of “mandatory prerequisites to obtaining a punishment based on the fact of a prior conviction.” Carachuri–Rosendo v. Holder, ––– U.S. ––––, 130 S.Ct. 2577, 2582, 177 L.Ed.2d 68 (2010). If a prosecutor intends to seek “increased punishment [of a defendant] by reason of one or more prior convictions,” the prosecutor must, before trial or entry of a plea of guilty, file an information with the court “stating in writing the previous convictions to be relied upon.” 21 U.S.C. § 851(a)(1). If such an information is filed, the statute imposes an obligation on the court to conduct a colloquy with the defendant:
If the United States attorney files an information under this section, the court shall after conviction but before pronouncement of sentence inquire of the person with respect to whom the information was filed whether he affirms or denies that he has been previously convicted as alleged in the information, and shall inform him that any challenge to a prior conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence.
Id. § 851(b). One purpose of the colloquy is for the court to provide the required information to the defendant.
After the colloquy, “[i]f the person denies any allegation of the information of prior conviction, or claims that any conviction alleged is invalid, he shall file a written response to the information.” Id. § 851(c)(1). If such a response is filed, the court “shall hold a hearing to determine any issues raised by the response which would except the person from increased punishment.” Id. Only convictions that occurred within a five-year window preceding the filing of...
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