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_______________
States.
____________________
December 27, 1994
____________________
participating in a
U.S.C.
841,
846,
possession
Perrotta was
convicted
tried,
with 12
indicted
with
intent
to
21 U.S.C.
841.
In
co-defendants, and
possession counts.
was
We
in United States
______________
v. Innamorati,
__________
996 F.2d
456 (1st
Cir.),
The
sentencing,
U.S.S.G.
to
5K1.1.
move
for
downward
departure
under
downward departure,
months
follow.
in prison,
court sentenced
with three
Perrotta to
years' supervised
60
release to
Perrotta's first
the
the
government
point concerns
in making
post-trial
submission to
of
the
Innamorati,
__________
providing reasons
to
defendants at the
See
___
determine whether
time.
the information
-2-2-
fell under
the Brady
_____
Id.
___
In the
of
be
the
government's
disclosed
remained impounded.
This
court
Innamorati.
__________
eventually
the
contents
sustained
the
convictions
in
submission in the
notice
to
while
the relief
after a review
of
without
(even
defense
the
and
Id.
___
We agreed
and are to be
the actual
to
submission
defense
submission might
just described
now be
not conceivably
disclosed material.
was
material or could
there
existence of the
constitute Brady
_____
that
seal
First, he suggests
have the
contents of
the submission
disclosed, so
that Perrotta's defense counsel can make his own judgment and
argue more
could constitute a
Alternatively,
_____
Perrotta speculates as to
-3-3-
contents of
that the
the
government's original
reviewed by this
court.
government's reasons
We
submission
remain of
for not
the
disclosing the
material
may be
specially pertinent
government's
but
difference
with no
withholding from
in
to him,
the
result:
there
has
been
no
The
second
claim
of
error
relates
to
his
to Perrotta was
stipulated
but,
dispute arose
in
calculating
concerning his
following events.
in 1976 for a
Perrotta
this
guideline
range,
on the
overturned on appeal.
See
___
United States
_____________
had been
v. Perrotta,
________
553
the
The
question
is
whether the
1978
sentence
affects Perrotta's
to a
defendant's criminal
should
each
-4-4-
"prior sentence"
where, as
was true of
Perrotta's gambling
4A1.1(c).
The
history.
guidelines
provide a
kind
of
points
are to
be added
only for
"any .
. .
[such] prior
of
the
4A1.2(e)(2).
Perrotta's
instant offense
Perrotta
and
original 1976
years before
the
sentence
the "instant"
."
government
Id.
___
agree
occurred more
than
that
ten
but that
of the conspiracy.
The
1978
guideline,
years"
a "prior
in
sentence
reinforce this
sentence as
counted.
U.S.S.G.
consistent case
face of
the
imposed within
ten
4A1.2(e)(2).
The
reading by
sentence
4A1.2, comment.
treating the
resulting from
(n.
6).
the district
1978 sentence
to be
There
is
the guidelines,
including the
of
law to this
literal words
U.S.S.G.
literal
nullity; a
the
that was
guidelines
1976
sentence is,
as part of
history.
-5-5-
court was
Thus on the
correct in
Perrotta's criminal
There
is
no
reason
to
doubt
that
the
Sentencing
may have occurred more than ten years before the drug
conspiracy
began, the
Commission could
reasonably conclude
treated
special
as
warning that
should
next decade,
give
the defendant
the fact
that it
is a
because of
on his
gambling.
sentence is
right to appeal
are
their right to
against every
attach.
the 1978
Defendants
burdens on
incidental
an unconstitutional
his original
protected
conviction for
against unreasonable
virtually
because of
no
chance that
but not
disadvantage that
Beauchamp v. Murphy,
_________
______
adding a
a defendant
711 (1969);
1994).
will fail
may
There is
to appeal
if he chooses to commit
__
another crime.
Perrotta's argument regarding the secret submission is a
serious one, and
briefly
only
we have
because
underlying
claim of
secrecy
error
issue
was
-6-6-
extensively
issue,
that
considered
in Innamorati.
__________
Perrotta's claim is
the merits are clear
whether, in view of
the sentencing
but we think
On
likely
-7-7-