United States v. DiPrizio ( 1993 )

USCA1 Opinion

          September 27, 1993
                                [NOT FOR PUBLICATION]


                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ___________________


          No. 93-1384

            


                                    UNITED STATES,

                                      Appellee,

                                          v.

                                  ANTHONY DIPRIZIO,

                                Defendant, Appellant.


                                  __________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. A. David Mazzone, U.S. District Judge]
                                             ___________________

                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                         Torruella and Selya, Circuit Judges.
                                              ______________

                                 ___________________

               Annemarie Hassett on brief for appellant.
               _________________
               A. John  Pappalardo, United States Attorney,  and Stephen A.
               ___________________                               __________
          Higginson, United States Attorney, on brief for appellee.
          _________



                                  __________________

                                  __________________




















                 Per Curiam.    Appellant Anthony  DiPrizio  appeals  his
                 __________

            sentence of 24 months imprisonment  for credit card fraud and

            aiding and abetting, in violation of 18 U.S.C.     1029(a)(2)

            & 2.  We vacate the sentence of the district court and remand

            for resentencing.

                 On October 27, 1992, DiPrizio pled guilty, pursuant to a

            plea agreement, to one count of a three count indictment.  He

            was sentenced on January 25,  1993.  At that time, the  court

            determined that the appropriate  offense level was 10.    The

            court also found that  appellant's criminal history score was

            13 and that  he thus had a criminal history  category of VI. 

            The  court sentenced  DiPrizio at  the low  end of  the 24-30

            month sentencing  range.   Appellant contends that  the court

            erred in  its determination of the  criminal history category

            because (1) it relied on a  conviction too old to be  counted

            in the criminal history score and (2)  it improperly included

            an   enhancement,  pursuant   to   U.S.S.G.   4A1.1(d),   for

            appellant's  having committed  the instant  offense  while "a

            violation  warrant from  a  prior  sentence is  outstanding."

            U.S.S.G.      4A1.1,  comment.   (n.4)  (Nov.  1992).     The

            government,  noting  that  the  government,  the  Presentence

            Report,  and   the   court,  had   inadvertently   overlooked

            appellant's  argument made  in  the district  court, concedes





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            that appellant is  correct in his  first contention and  that

            the appropriate criminal history category is V.

                 In 1977  DiPrizio received a suspended  sentence and two

            years  probation for controlled substances offenses.  Section

            4A1.1(c) of the United States Sentencing Guidelines instructs

            that,  where no  sentence  of imprisonment  was imposed,  the

            court is to  add one point to the  criminal history score for

            each  prior sentence up  to a total  of four points.   In the

            instant  case,  the  court  added  one  point  to  DiPrizio's

            criminal history  score for this conviction.   The commentary

            clearly   states,  however,  that,  under     4A1.1(c),  "[a]

            sentence imposed more than ten years prior to the defendant's

            commencement  of   the  instant  offense  is   not  counted."

            U.S.S.G.  4A1.1,  comment. (n.3).  Since  the instant offense

            commenced  on August 22, 1991, more than ten years had passed

            since the 1977 sentence was imposed.  It thus should not have

            been counted in determining DiPrizio's criminal history.

                 We  do  not  reach  appellant's contention  that  he  is

            entitled  to  a further  reduction  in  his criminal  history

            score.   Such  a  reduction  would  have  no  effect  on  his

            sentencing  range.   Given  the one  point  reduction in  his

            criminal  history score due to the error in counting the 1977

            conviction, appellant's criminal history score is  twelve and

            his  criminal history category is V.  Even if the enhancement

            pursuant  to   4A1.1(d) were  incorrect,  appellant would  be



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            entitled  only  to  a one  point  reduction  in his  criminal

            history score  and thus  his criminal history  category would

            still be V.1

                 Appellant's sentence is vacated and the case is remanded
                                         _______                 ________

            for resentencing.


































                                
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            1.    Appellant's  criminal history  score was  increased two
            points pursuant to  4A1.1(d).   However, appellant  concedes,
            that if the enhancement  were found improper, the  net effect
            would only be a one point reduction in criminal history score
            since the deduction of  these two points would require  a one
            point increase under  4A1.1(e). 

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