United States v. Peralta , 457 F.3d 169 ( 2006 )

United States Court of Appeals
For the First Circuit
No. 05-1825
UNITED STATES,
Appellee,
v.
ANDRES PERALTA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella, Lynch, and Howard,
Circuit Judges.
Stuart W. Tisdale, Jr., with whom Tisdale & Davis, P.A. was on
brief, for appellant.
F. Mark Terison, Senior Litigation Counsel, with whom Paul D.
Silsby, United States Attorney, was on brief, for appellee.
August 14, 2006
Per Curiam. Andres Peralta pleaded guilty to conspiring
to possess cocaine hydrochloride with intent to distribute, 21
U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846, and was sentenced to 135
months in prison. He seeks a new sentencing hearing.
Peralta's flagship argument, and the only argument that
warrants an extensive response, is that the district court erred in
finding him a career offender under the applicable 1995 version of
U.S.S.G. § 4B1.1(a) ("A defendant is a career offender if (1) the
defendant was at least eighteen years old at the time of the
instant offense, (2) the instant offense of conviction is a felony
that is either a crime of violence or a controlled substance
offense, and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled substance
offense."). Peralta says that he should not have been regarded as
a career offender because one of the two "prior felony convictions"
on which this finding was premised -- a 1988 New York "youthful
offender adjudication," see N.Y. Crim. Proc. Law § 720.10, for the
attempted sale of a controlled substance in the third degree --
should not have been counted under U.S.S.G. § 4B1.1. Pointing out
that the term "conviction" in U.S.S.G. §4B1.1 is functionally
defined in U.S.S.G. § 4A1.2(a) as involving an "adjudication of
guilt" obtained by "guilty plea, trial, or plea of nolo
contendere," Peralta says that the government failed to establish
that his 1988 "youthful offender adjudication" was so obtained.
-2-
Peralta relies on United States v. DiPina, 178 F.3d 68(1st Cir. 1999), in making this argument. In DiPina, we considered
whether, under the same provisions of U.S.S.G. § 4A1.2(a), certain
juvenile dispositions wherein the defendant "admit[ted] to
sufficient facts" in Rhode Island Family Court should be counted in
his criminal history score. See id. at 70-71. Because the record
did not divulge whether defendant's admissions were obtained by
means of procedures we confidently could regard as functionally
equivalent to a guilty or a nolo plea -- which at minimum require
the defendant formally to admit (or to fail to contest) the
commission of acts that a judge finds to constitute a crime -- we
remanded for further record development. See id. at 72-78. In
doing so, we emphasized that because the government was arguing in
favor of counting the defendant's juvenile dispositions in the
criminal history calculation, it bore the burden of "show[ing] that
what happened in the prior proceeding was in substance a plea of
guilty or nolo." Id. at 75 (citation and internal quotation marks
omitted).
Invoking the rationale of DiPina, Peralta says that his
1988 "youthful offender adjudication" should not have been counted
because the record does not reveal whether the procedures by which
it was procured involved, in substance, a plea of guilty or nolo,
and thus an "adjudication of guilt." Peralta's argument is very
ably advanced, but we reject it because it was not presented to the
-3-
sentencing judge and because the counting of the adjudication does
not constitute "plain error" within the meaning of Fed. R. Crim. P.
52(b).
To notice the alleged error under Rule 52(b), we would
have to conclude, inter alia, that the sentencing judge clearly or
obviously should not have counted the 1988 youthful offender
adjudication in determining whether Peralta was a career offender
under the guidelines. See United States v. Olano, 507 U.S. 725,
734 (1993). There is no basis for such a conclusion. Although the
record contains no evidence as to how Peralta's 1988 youthful
offender adjudication was obtained, or of how New York youthful
offender adjudications typically take place, we may take notice of
the fact that an adult "conviction" is a necessary prerequisite to
a youthful offender adjudication. See N.Y. Crim. Proc. Law §
720.20(1)(a); see also United States v. Jones, 415 F.3d 256, 264
(2d Cir. 2005); United States v. Driskell, 277 F.3d 150, 152-55 (2d
Cir. 2002); Capital Newspapers v. Moynihan, 71 N.Y.2d 263, 268
(1988). And there is no reason to suppose that the prerequisite
adult "conviction" under New York law involves, in the case of a
plea, procedures that fall short of the "adjudication of guilt"
described in DiPina. See Driskell, 277 F.3d at 152 (youths
eligible for youthful offender adjudications are first tried "'as
any criminal defendant would be'") (quoting Capital Newspapers, 71
N.Y.2d at 152)).
-4-
Although Peralta did not cite DiPina below or make the
specific argument just summarized prior to or at his sentencing
hearing, he says that other objections to the counting of the 1988
youthful offender adjudication made in his sentencing memorandum,
and at the sentencing hearing, sufficed to put the matter in issue.
Peralta says that he has merely, and allowably, "refined" his
position on appeal by providing an additional reason why the
conviction should not be counted. Cf. DiPina, 178 F.3d at 72 n.7
(stating that defendant was entitled to present the appellate court
with additional reasons why his admissions to sufficient facts in
Rhode Island Family Court were not "the same thing" as a
"conviction" under the sentencing guidelines).
Peralta's appellate argument is not a refinement. It is,
rather, an entirely different position than the ones taken prior to
and at the sentencing hearing, which, to the extent that they were
developed at all, involved assertions that (1) the sentencing judge
should not feel himself bound by Second Circuit cases addressing
other arguments why New York youthful offender adjudications should
not be counted, and (2) the 1988 adjudication should not be counted
because it led only to a sentence of probation. Obviously,
permitting a party to present an additional legal argument in favor
of a position taken below invites far fewer inefficiencies than
does permitting a party to take a different position entirely,
especially where, as here, the new position contemplates
-5-
evidentiary submissions and factfinding that were not demanded in
the lower court. The issue was not preserved.
In his counseled briefs,1 Peralta presents three
additional arguments. First, he contends that the Supreme Court's
decision in Shepard v. United States, 125 S. Ct. 1254 (2005),
limits the universe of evidence that the sentencing court was
entitled to consider in determining whether his 1988 youthful
offender adjudication involved an "adjudication of guilt" to
"judicial evidence" of a type utterly lacking in this case. We
leave this issue to another day because, as explained above,
Peralta has forfeited his appellate argument challenging the 1988
youthful offender adjudication, and because there was no plain
error in counting the 1988 adjudication, even in the absence of any
evidence as to how it was procured.
Second, Peralta argues that, under the logic of Shepard,
United States v. Booker, 125 S. Ct. 738 (2005), Blakely v.
Washington, 542 U.S. 296 (2004), and Apprendi v. New Jersey, 530
1
Peralta also has submitted a pro se brief which, in large
measure, presents fact-specific arguments that trial counsel
rendered constitutionally ineffective assistance of counsel. As is
our custom, we shall let the district court have the first crack at
these arguments, should Peralta wish to renew them in a motion
under 28 U.S.C. § 2255. See, e.g., United States v. Mercedes
Mercedes, 428 F.3d 355, 361 (2005).
Peralta's pro se brief also hints at arguments for vacatur
which go beyond his claims of ineffective assistance of counsel.
We have considered these additional arguments and conclude that
they provide no basis for upsetting Peralta's conviction and
sentence.
-6-
U.S. 466 (2000), the fact of his prior convictions should have been
proved to a jury beyond a reasonable doubt. But Almendarez-
Torres v. United States, 523 U.S. 224 (1998), holds otherwise, and
we have stated that we shall follow Almendarez-Torres until the
Supreme Court disavows it, see United States v. Jiminez-Beltre, 440
F.3d 514, 518-19 (1st Cir. 2006) (en banc).
Third, Peralta asserts that his sentence was unreasonable
because it was unreasonably greater than necessary to promote
respect for the law, see 18 U.S.C. § 3553(a), because the
sentencing judge erroneously sought to do comparative justice
between Peralta and a less culpable co-conspirator who received a
108-month sentence (which the judge failed to appreciate was handed
down prior to Booker), and because the judge erroneously treated
the advisory guidelines sentencing range as presumptively
reasonable. But we have reviewed the transcript of the sentencing
proceedings with care and are of the opinion that the judge
sentenced Peralta to a reasonable prison term, that no legal error
underlay the court's reference to the co-conspirator's sentence,
and that the court employed a mode of analysis which was entirely
consistent with that later prescribed by the en banc court in
Jimenez-Beltre, 440 F.3d at 514.
Affirmed.
-7-