USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 94-1020
UNITED STATES OF AMERICA,
Appellee,
v.
PETER B. ROBERTS,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
___________________
____________________
Before
Cyr, Boudin and Stahl,
Circuit Judges.
______________
____________________

Diana L. Maldonado, Assistant Federal Defender, Federal Defen

___________________
Office, with whom Owen S. Walker, Chief Federal Defender, was on br
______________
for appellant.
Jeanne M. Kempthorne, Assistant United States Attorney, with w
____________________
Donald K. Stern, United States Attorney, was on brief for the Uni

________________
States.
____________________
October 27, 1994
____________________

BOUDIN, Circuit Judge.

_____________
September
with 15

24, 1993,

to a

Peter C.

16-count indictment

counts of theft of

1993.

district court computed

U.S.S.G.

18 U.S.C.

hearing was conducted and

on December 17,

2B1.1,

In the

1709, 1029(a)(2).
sentence was imposed
the hearing,

the

the total offense

level as 12,

see
___

2F1.1, and

imprisonment, which

range of 12 to 18

and one

course of

criminal history category II.

sentence of

charging him

mail by postal employee

count of access device fraud.

A sentencing

Roberts pled guilty on

months.

found

that Roberts

The court imposed a

is midway in

was

in

15-month

the guideline

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'
category by assigning Roberts
a

criminal history

one criminal history point for

1992 state court guilty plea to charges of embezzlement by

a fiduciary and larceny.

point was

both

state court with operating

the influence
charges were

finding,
sustain

4A1.1(c).

A second

assigned because in 1986, Roberts had been charged

in Massachusetts
under

See U.S.S.G.
___

upon

of alcohol
continued by

Roberts'

a finding

point was sufficient to

and operating
the state

admission

of guilt.

a motor vehicle

The

to endanger;

court without

to sufficient
second criminal

facts

a
to

history

push Roberts into category II.

See
___

U.S.S.G. Sentencing Table.

-2-2-

The

main

dispute on

following guidelines

this

provision

appeal

centers around

contained in

the

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

4A1.2(f).

The issue is how this provision applies

the disposition of the charges against Roberts in 1986 by

continuance

based on

admission

to

sufficient facts

to

sustain a finding of guilt.

The government
admission
disposition

to

has maintained throughout

sufficient

facts

led

to

that Roberts'
"diversionary

resulting from a finding or admission of guilt .

. . in a judicial proceeding,"
district court

agreed.

U.S.S.G.

4A 1.2(f), and the

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

____________________
1Roberts also argued
in the district court
that
operating to endanger is an offense for which no points are
awarded even if there is an admission of guilt, see U.S.S.G.
___
4A1.2(c)(1), but Roberts agrees that this does not matter
because driving under the influence is counted where an
admission of guilt occurs. See U.S.S.G.
4A1.2, comment.
___

-3-3-

issue

as a

close

one

that,

for

reasons

shortly

to

be

explained, cannot be settled definitively on this record.

The

Massachusetts

disputed disposition
been

modified

practice

is a

several

times.2

to

obtain

As

to

matters

the

that has

stood

when

the state district court with

one of these options

a bench

rise

in 1986, Massachusetts afforded

defendant facing charges in

several options;

gave

composite of procedures

Roberts' case was considered

a

that

trial ("the

first

allowed the defendant

tier") and

then, if

unhappy with the outcome, to appeal to obtain a de novo trial

_______
in the
tier").

same

court before

See Commonwealth v.
___ ____________

six-person jury

("the

second

Duquette, 438 N.E.2d 334 (Mass.

________

1982).

At the first tier, the defendant could also choose to

forego

a bench

trial

and advance

to

the second

admitting to sufficient facts to warrant a finding

tier

by

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

formal finding of

guilt or innocence.

the

the

continuance,

supervision by

court

a probation

imposed

In conjunction
conditions,

with

such

officer, restitution, or

as

(as in

____________________
(n.5).
2The procedure was altered substantially in 1973 by
statute and again by case law in 1982.
Commonwealth v.
____________
Duquette,
438
N.E.2d
334 (Mass.
1982).
Recently
________
Massachusetts has abolished the de novo system.
Compare
_______
_______
Mass. Gen. L. ch. 278,
18 (1981) with id. (1994 supp.).
____ ___
-4-4-

this

case)

submission

Technically, where
there was

to

a case

an

On the

and therefore no

other hand, it

dissatisfied defendant could insist

and exercise his or

treatment

was continued without

no final disposition

novo or otherwise.3
____

abuse

a finding,
appeal, de
__

appears that

on a formal

her right to a trial de

program.

disposition

novo, expunging

________
the first-tier

disposition.

See Mann v.
___ ____

Commonwealth, 271
____________

N.E.2d 331, 332-33 (Mass. 1971).

Roberts' argument in this case starts with the guideline
language

imposing

criminal

history

points

where

diversionary disposition results from "a finding or admission

of guilt . . . in
4A1.2(f).

a judicial proceeding . . . ."

There is no

1986 proceeding made

evidence that the

a formal

U.S.S.G.

judge in Roberts'

finding of guilt.

also no indication that Roberts made an "admission

There

is

of guilt"

in the sense of pleading guilty or using the word "guilty" or

saying "yes" when asked whether he admitted his guilt.
says

Roberts, means

criminal

history

that

points

under the
can

be

This,

guideline language
assigned

for

the

no
1986

disposition.
This literal
Seventh

approach was apparently persuasive

Circuit in Kozinski, 16 F.3d at 811-12.

________

to the

Under local

____________________
3Later if the defendant satisfied the conditions, the
charge or charges would be dismissed.
This is apparently
what happened in Roberts' case, but the dismissal itself is
not claimed to erase Roberts' admission.
-5-5-

law, an Illinois state court may defer prosecution and impose

supervision either if the defendant pleads guilty or if he or
she stipulates to
of guilt."
that

"facts supporting the charge

Id. at 812.
___

or a finding

The Seventh Circuit said summarily

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

judicial process "without a

prosecution)"
awarded.

Id.
___

for which

diversion from the

finding of guilt (e.g., deferred

____

no criminal

history points

Compare United States v. Hines,

_______ _____________
_____

may be

802 F. Supp.

559 (D. Mass. 1992) (reaching the opposite result).

In

this

Kozinski
________

court,

the

was wrongly

government takes

decided,

although its

half-hearted attempt to distinguish the

the

phrase "admission of guilt"

precise

defendant's

meaning

admission

finding of guilt.
"admission" and does
U.S.S.G.

as

to

sufficient

The guideline by its

not require

4A1.2; and

diversionary dispositions

the

case.

its

that
a

We agree that
so clear and

extension

facts

to

to

warrant

terms uses the word

a formal

commentary

view

brief makes

does not have

foreclose

to

the

plea of

speaks of

if they involved "an

guilty,
counting

admission of

guilt in open court."

the guideline

has a

Id. comment. (n.9).

___
purpose that
_______

helps us

More important,
decide disputes

about ambiguous language.

-6-6-

In determining criminal
guidelines
an

impose points automatically

"adjudication

merely

permit

of

guilt,"

the trial

determines

that the

does

adequately

not

history points, the

court

where there has been

U.S.S.G.

4A1.2(a)(1), but

to depart

defendant's criminal
reflect

the

sentencing

where

the court

history category"

seriousness

of

defendant's past criminal conduct . . . ."

U.S.S.G.

This

guilt

preference

for

reflects the desire to

and
___

of

fasten on what can readily

4A1.3.

presumably
be proved

the reasonable assurance that one who has pled guilty or

been found
Cf.
___

adjudications

the

guilty did

Fed. R. Evid. 609

commit the prior

crime in

(allowing convictions to

question.
be used for

impeachment).
In

Massachusetts an

admission to

sufficient facts

apparently recorded with about the same formality as

is

a plea,

see Mass. R. Crim. P. 12(a)(3), and so satisfies the readily___

proved criterion.

Whether an admission

adequately assures

that the

crime in question may

different reasons

defendant

to sufficient facts
committed the

be a closer question.

for concern.

Both exist

prior

There are

two

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
a

trial

de novo,
_______

even

after the

admission

has available
to sufficient

-7-7-

facts, may have

so little

invested in the

make it unreliable as an admission of guilt.

admission as

to

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

the

and where

might question whether a

facts creates an

penalty is

extremely light,

one

defendant's admission to sufficient

overwhelming likelihood that the

defendant

has done the deeds to which he or she admitted.

But

this same

bargains for

doubt exists

a light sentence and

wherever a

defendant plea

thereafter pleads guilty.

In that instance, there would be an admission of guilt within

the literal language of
that a
because
reasons.

court would disregard

the

defendant

commits

criminal record
or

the admission of

might

have pled

for

not think

guilt merely
opportunistic

The guidelines embody all manner of compromises.

defendant who

him

the guidelines, and we do

her

in

a new

crime after

creating a

has fair warning

that the record

sentencing,

quite

absent

prior

may haunt

extraordinary

circumstances.
The
process.

second concern,

less easily

overcome, relates

In Duquette, the Supreme Judicial Court made

________

to

clear

that an admission to sufficient facts, where it occurs at the

second tier, must be
______
almost

treated with a formality that

indistinguishable

from a

-8-8-

guilty

plea.

makes it
There

are

required warnings:
understanding,"

the judge must

and must

factual basis for

Where

such an

accepted

"prob[e] the defendant's

"satisfy himself

a finding of guilty."

admission to sufficient

that there

438

is a

N.E.2d at 342.

facts occurs

and is

at the second tier, we think that the defendant has

in substance admitted to his guilt.

But Duquette
________
second

imposed these

tier an admission

formalities because
_______

to sufficient

facts has

at the
the same

consequences as a plea of guilty and cannot be wiped out by a

de novo appeal.
imposing

these

admission

to

informally.
and,

Id. at 342.
___
requirements
sufficient

Id.
___

briefs, the record,

sufficient

at

facts

the first
could

tier

be

where

treated

an
more

But it did not say how much more informally

surprisingly, we

that explains in

The court said that it was not

have not

or the

discovered anything

cases or treatises

any detail

how a first

facts actually works

in the

in the

cited to

us

tier admission

to

courtroom.

How it

works matters.
Perhaps, as in a typical federal
prosecutor gives

a recitation

court guilty plea, the

of what the

government would

prove, and
___
version

the defendant expressly accepts

of

events (possibly

the government's

with qualifications),

and the
___

judge then determines that the admitted facts if proved would

constitute the
achieved the

offense.

This

same effect,

sequence, or

would

any other

give reasonable

that

assurance

-9-9-

that the defendant had

confessed to certain events

the events constituted

a crime.

make the

That, in

admission effectively

and that

our view,

an admission of

would

guilt under

the guidelines.
But

in the

instance
give

far less

of

sufficient

assurance.

the

the judge
matter

facts, and a

nothing reprehensible

aught

or his

that the
by

a busy

first-

imagine procedures that would

For

and the defendant

than tell

dispose

conditions of

court, it is easy to

prosecutor
more

hard-pressed

we

tell,

the

counsel may

do little

parties have

agreed to

continuance,

treatment program.

about such

can

admission

to

There would be

a procedure; but

it would

give one little confidence that the defendant had admitted to

a crime.

Indeed, it would approach the "[d]iversion from the

judicial

process

without

finding

guidelines say is "not counted."

of

guilt"

U.S.S.G.

that

the

4A1.2(f).

It is the government that is seeking to assign the extra

criminal history
the burden of
the

point.

point to

Roberts and it

showing whatever facts

Here

"guilt," and it

Roberts did not in

is the

therefore carries

are needed to

justify

formal terms admit his

government that needs

to show

that

what happened in 1986 was in substance an admission of guilt.

____________
Thus,

we

think

Massachusetts

that

the

procedure are

whether by showing

necessary
for

details

the government

what actually happened

of
to

the
prove,

to Roberts or

by

-10-10-

showing

regular

course

of

practice

in

first-tier

proceedings.
Whatever evidence
free to

contradict it.

the government may

In particular,

offer, Roberts is
if the

government

relies
free

on evidence

of general

practice, Roberts

should be

in our view to offer evidence that the general practice

was not followed in

was inadequate
experience

his case and

to

constitute an

with the

admission

that what happened to

him

admission of

guilt.

Our

facts is

too

to sufficient

limited to treat general practice as irrebuttable.

In

this case

not yet

carried its

is true that the government

appended to

its brief a detailed set of state district court

procedures,

initial burden.

adopted after
and

for

District
and

It

Duquette, for
________

admissions

But these

has

continuances without

sufficient

Court, Standards of

facts.

Massachusetts

Judicial Practice:

Standards

3:00 to

a finding

Sentencing

3:04 (September

procedures resemble what Duquette required

________

second-tier admissions and we have no idea whether or to

what extent they

are designed

first-tier admissions.
are

to

Other Dispositions,

1984).
for

the government

not willing

to, or do

in fact,

describe

Enough may turn on this issue that we

merely to assume

that these

procedures do

occur in cases like Roberts.

We

have noted, but do not

case law language and

regard as dispositive, other

analogies offered by both sides.

-11-11-

For

example, the government thinks that

comprise

conviction

under

Roberts' admission would

immigration

regulations, see
___

Molina v. INS, 981 F.2d 14, 18 (1st Cir. 1992), while Roberts
______
___
points

to

Massachusetts

consequences
Santos v.
______
N.E.2d

of an

caselaw

admission

the

to sufficient

collateral

facts.

E.g.,
____

Director of Division of Employment Security, 498

_____________________________________________

118, 119 (Mass. 1986).

already

limiting

addressed

importance to

are

the

However, the concerns we have

ones we

think

a reasonable construction of

are

of primary

the guideline in

question.
The government asserts
on

the

criminal

history

Roberts' sentence.
to

criminal

actually

history

category

would

range

offense level of

issue,

we

should

against it

still

It points out that were Roberts

imposed

imprisonment

that even if we hold

be

provided

12 and

I,

the

within
for

15-month
the

assigned
sentence

10-to-16-month

a defendant

a criminal history

affirm

who

has

an

category of

I.

The government suggests that the district judge's choice of a

sentence

above the minimum in

this case and

Roberts'

sentencing

suggest that

strongly

his remarks at
he

would

have

sentenced Roberts

to 15

months' imprisonment

regardless of

whether Roberts fell in category I or category II.

There are

certainly

court's comments
the

occasions on

make it clear

same sentence

even if

which

that the judge

a specific

sentencing
would impose

issue as

to offense

-12-12-

level or criminal history category were resolved differently.

Sometimes judges

say so explicitly; in

court's remarks

other instances, the

or other circumstances may

confirm that the

sentence would have been precisely the same regardless of the

finding

on

that

sentence would
dispute

issue.

have

been

Where
the

we

are

same, we

certain that
normally

treat

the
a

about such a finding as harmless, and affirm even if

we think the finding error.

See generally Williams v. United

_____________ ________
______

States, 112 S. Ct. 1112, 1120 (1992).

______
In this case, the district court might well have imposed
the

same

category

sentence

whether

Roberts had

I or category II, but

been

assigned

to

we are not certain enough to

avoid a remand.

The

choice of sentence is usually

within a

permissible guideline range based primarily on the individual

characteristics of the

crime and

the defendant's

behavior.

But nothing prevents a sentencing judge from being influenced

by

the

judge's sense

toward the top

that the

or bottom

case

calls for

or middle of

a sentence

the range,

whatever
________

that range may be.

____ _____ ___ __
On

remand, the district court is free to determine that

the 15-month
defendant

sentence imposed

whether

as a

category II

is also the proper sentence if Roberts is deemed a

category I defendant.
reimpose

on Roberts

In that event the district

the same sentence and the

criminal

history

court can

court need not determine

category

or

II

is

correct.

that

Roberts'

-13-13-

Nevertheless,

in

that

situation

we

think

sentencing record could not describe him as having a criminal

history record higher than category I.

If

instead

the

district

original sentence would

court

concludes

or might be altered

allow the

district court

first-tier admission to
equivalent of

a guilty plea.

adduce facts

to determine that

sufficient facts

was the

Although the

its

if Roberts were

assigned to category I, then the government may

that would

that

the

effective

government here

did not offer such proof in the district court, we think that
it should

be free to do so on remand.

the guideline presents

has

not

previously

The interpretation of

a close question on
spoken

and

the

which this court

government's

per se
_______

position is by no means frivolous, see Hines, 802 F. Supp. at

___ _____
564, even though we do not accept it in full.
remand

the

government is

free not

to

Conversely, on

offer proof

and to

permit Roberts to be resentenced as a category I defendant.

The outcome

in this case

reflects our best

reading of

the present guideline as applied to a peculiar procedure that

the

guideline

drafters

did

not expressly

address.

The

procedure itself may now be wholly obsolete in Massachusetts;

but the

device of an admission to

quite possibly with variations,

Annot.,

4 A.L.R.

subject

may

4th

be one

in other jurisdictions.

147 (1981)
that

the

-14-14-

sufficient facts endures,

(collecting cases).

Sentencing Commission

See
___
The
could

usefully address, either to clarify the existing guideline or

to improve it.
The

sentence

is

vacated
_______

and the

case

remanded
________

further proceedings consistent with this opinion.

for

-15-15-