Вы находитесь на странице: 1из 10

USCA1 Opinion

UNITED STATES COURT OF APPEALS


FOR THE FIRST CIRCUIT
____________________
No. 93-2357
No. 93-2383
UNITED STATES OF AMERICA,
Appellee,
v.
PASQUALE PERROTTA,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, Senior U.S. District Judge]
__________________________
____________________
Before
Torruella, Cyr and Boudin,
Circuit Judges.
______________
____________________

Charles K. Stephenson with whom Richard L. Goldman was on br


______________________
___________________
for appellant.
Kevin O'Regan, Assistant United States Attorney, with
w
______________
Donald K. Stern, United States Attorney, was on brief for the Uni

_______________
States.

____________________
December 27, 1994
____________________

BOUDIN, Circuit Judge.


_____________
for

participating in a

U.S.C.

841,

846,

Pasquale Perrotta was

large-scale narcotics conspiracy, 21


and for

possession

distribute cocaine on a specific date.


1990,

Perrotta was

convicted

tried,

with 12

on both the conspiracy and

resolved the appeals of

indicted

with

intent

to

21 U.S.C.

841.

In

co-defendants, and
possession counts.

was
We

a number of Perrotta's co-defendants

in United States
______________

v. Innamorati,
__________

996 F.2d

cert. denied, 114


____________

S. Ct. 409, 114 S. Ct.

456 (1st

Cir.),

459 (1993), 114 S.

Ct. 1072, 114 S. Ct. 1073 (1994).


Perrotta's sentencing occurred on December 7, 1993.
delay is
at

The

presumably related to the government's willingness,

sentencing,

U.S.S.G.

to

5K1.1.

move

for

downward

departure

under

The court computed the guideline range as

providing for 97 to 121 months of imprisonment but, approving


a

downward departure,

months
follow.

in prison,

court sentenced

with three

Perrotta to

years' supervised

60

release to

Perrotta has now appealed.

Perrotta's first
the

the

government

point concerns

in making

the unusual action

post-trial

submission to

of
the

district court, neither the contents nor the existence of the


submission

being known to the

Innamorati,
__________

996 F.2d at 487.

providing reasons
to

defendants at the

See
___

The government, in addition to

for its secrecy, asked

determine whether

time.

the information

-2-2-

the district court

fell under

the Brady
_____

doctrine and had to be disclosed to the defense.

Id.
___

In the

course of the Innamorati appeals, this court ordered that the


__________
existence
sought

of

be

the

government's

disclosed

remained impounded.
This

court

Innamorati.
__________

eventually

the

contents

sustained

the

convictions

in

that secret submissions are dangerous

submission in the
notice

to

adequate cause to continue


though the

made known); and


did not

while

the relief

after a review

of

submission, that there had been an adequate basis

without

(even

defense

discouraged; but we found,

for filing the


and

the

and

Id.
___

We agreed

and are to be
the actual

to

submission

defense

district court under


counsel;

submission might

that the contents of

just described

now be

not conceivably

996 F.2d at 487-88.

not seek to relitigate

but makes two narrower

disclosed material.

was

the submission either

material or could

have affected the outcome of the case.


Perrotta does

there

the impoundment of the submission

existence of the

constitute Brady
_____

that

seal

the legal rulings

claims concerning the

First, he suggests

that since more time

has now elapsed since the original submission, it must now be


safe to

have the

contents of

the submission

disclosed, so

that Perrotta's defense counsel can make his own judgment and
argue more

effectively that the material

could constitute a

prejudicial withholding of Brady information.

Alternatively,

_____
Perrotta speculates as to

what the withheld submission might

-3-3-

contain and suggests that the material

has a special bearing

as to him that may not have been true of his co-defendants.


The

contents of

have again been


view

that the

the

government's original

reviewed by this

court.

government's reasons

We

submission

remain of

for not

the

disclosing the

contents of the material remain valid, despite the passage of


additional time.
that the

And having considered Perrotta's suggestion

material

may be

specially pertinent

government's

submission has been

but

difference

with no

withholding from

in

to him,

the

re-examined in that light,

result:

there

Perrotta of Brady material


_____

has

been

no

that could have

altered the result in his case.


Perrotta's
sentencing.

The

second

claim

of

error

amount of drugs attributed

relates

to

his

to Perrotta was

stipulated

but,

dispute arose

in

calculating

concerning his

following events.
in 1976 for a

Perrotta

this

guideline

range,

criminal history based

on the

had been convicted and sentenced

gambling offense, but the conviction

overturned on appeal.

See
___

United States
_____________

had been

v. Perrotta,
________

553

Perrotta then pled guilty to

the

offense on remand and was resentenced on April 24, 1978.

The

F.2d 247 (1st Cir. 1977).

question

is

whether the

1978

sentence

affects Perrotta's

criminal history score.


The Sentencing Guidelines provide that one point
be added

to a

defendant's criminal

should

history score for

each

-4-4-

"prior sentence"

where, as

was true of

Perrotta's gambling

conviction, the sentence was less than 60 days' imprisonment.


U.S.S.G.

4A1.1(c).

The

statute of limitations for


criminal

history.

guidelines

provide a

kind

of

prior sentences used in computing

For prior sentences of 13 months or less,

points

are to

be added

only for

"any .

. .

[such] prior

sentence that was imposed within ten years of the defendant's


commencement

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

drug conspiracy began,

the 1978 sentence occurred within

that
ten

but that

ten years of the beginning

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

effect, e.g., United States v.


____ ______________

1302, 1318 (7th Cir. 1992).

the guidelines,

including the

of

"reversed or vacated" is not

law to this

Schweihs, 971 F.2d


________

literal words

U.S.S.G.

literal

nullity; a

conviction that has been

the

that was

of the instant offense.

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

Commission meant what it said.


itself

doubt

that

the

Sentencing

Although the gambling offense

may have occurred more than ten years before the drug

conspiracy

began, the

Commission could

reasonably conclude

that criminal history points should be added in the case of a


defendant who, within ten
commit
is

years of sentencing, determined to

yet another crime.

treated

special

as

To the extent that the sentencing

warning that

pause for the

should

next decade,

give

the defendant

the fact

that it

is a

resentencing after a remand makes no difference.


Finally, we reject
point
burden

because of
on his

gambling.

sentence is

right to appeal
are

their right to

against every
attach.

the 1978

Defendants

burdens on

Perrotta's suggestion that

incidental

an unconstitutional

his original

protected

conviction for

against unreasonable

pursue judicial remedies


and remote

virtually
because of

no

37 F.3d 700 (1st Cir.

chance that

but not

disadvantage that

See North Carolina v. Pearce, 395 U.S.


___ _______________
______

Beauchamp v. Murphy,
_________
______

adding a

a defendant

711 (1969);

1994).

will fail

may

There is
to appeal

the fear that a decade later he may be subject to

an additional criminal history point

if he chooses to commit
__

another crime.
Perrotta's argument regarding the secret submission is a
serious one, and
briefly

only

we have
because

treated the first


the

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

also not frivolous


enough that we

the sentencing
but we think

need not consider

the district court's downward departure,

Perrotta's precise criminal history


effect on the sentence.
Affirmed.
________

On

category had any

likely

-7-7-

Вам также может понравиться