USCA1 Opinion

September 11, 1995

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 94-1954

UNITED STATES,

Appellee,

v.

FREDERICK J. BONAMO,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

___________________

____________________

Before

Cyr, Boudin and Lynch,

Circuit Judges.
______________

____________________

Frederick J. Bonamo on brief pro se.

___________________
Colleen M. Rooney on brief for appellant.
_________________
Donald K. Stern, United States
________________

Attorney, and

Michael J. Pelg
_______________

Assistant United States Attorney, on brief for appellee.

____________________

____________________

Per Curiam.
__________

Defendant Frederick

J. Bonamo appeals

his

sentence

sentenced

under

to

nine

supervised release

the

Sentencing

years

Guidelines.

imprisonment

following a

agreement, made under Fed.

and

He

was

three

years

valid plea agreement.

This

R. Crim. P. 11(e)(1)(C), included

a specific sentence of 10 years incarceration and three years

supervised release,

move to dismiss

agreement,

and provided

a pending

indictment.

defendant pled guilty

him with violating 18 U.S.C.

By

that the

so doing,

he avoided

which would have

under the

924(e).

The

a result of

trial on

371.

the indictment

15-year mandatory minimum

Armed Career Criminal

3742(c)(1).

the

to an information charging

going to

government argues

barred by 18 U.S.C.

As

922(d)(3) and 18 U.S.C.

exposed him to a

sentence

government would

Act, 18

that defendant's

U.S.C.

appeal is

A defendant may appeal a final sentence pursuant to

3742(a).

When a defendant agrees to a negotiated plea that

contains

a specific sentence, however,

that

or

he

paragraph

imposed

she "may

(3) or (4)

is

not

a notice

of subsection (a)

greater than

agreement. . . ."1

file

the

3742(c)(1) provides

sentence

of

appeal under

unless the sentence

set forth

in

Obviously, defendant's sentence is

such

lower

____________________

1.

Section

3742(a)(3)

sentence greater
3742(a)(4) permits

permits

than the
the

defendant

to

appeal

applicable guideline range

appeal

of

plainly

and

unreasonable

sentence for an offense for which there is no guideline.

than the 10-year sentence

therefore have

no

See United States

___ _____________

stated in the plea agreement.

jurisdiction to

review

v. Prieto-Duran, 39 F.3d
____________

this

We

sentence.2

1119, 1120 (10th

Cir. 1994).

Defendant attempts to avoid

the ban contained in

3742(c) by arguing that his sentence was imposed in violation

of the law or

the

sentencing

as the result

guidelines

of an incorrect application

--

appeals

permitted

by

of

3742(a)(1) and (a)(2) respectively.

the

fact that

from

his sentence

represents an

the guideline range for

guilty.

Specifically, he

erred in basing

which he had

U.S.C.

His claim is premised on

the offenses to

contends that the

the enhanced sentence

had his

upward departure

which he pled

district court

on convictions as

civil rights restored

pursuant to

to

18

921(a)(20) (a "conviction . . . for which a person .

. . has had civil rights

conviction").

We

reject

restored shall not be considered

this argument

for the

following

reasons.

____________________

2.

The

government could

sentence is
U.S.C.

have filed

lower than the one

3742(c)(2).

an appeal

to which it had

See, e.g., United States v.

because the
agreed.

18

Mukai, 26

___
F.3d 953 (9th Cir. 1994)
the

district court

agreement when
contained in

to

____

_____________

(government appealed the refusal by

allow it

to

withdraw from

the court imposed a sentence

the agreement); United States
_____________

F.2d 372

(6th Cir.

court's

imposition
the

forfeiture

as

parties

government

does not pursue

sentence

which

plea

lower than that

v. Skidmore, 998
________

1993) (government appealed

of

_____

did

had specified).
an appeal, however,

the district
not
Because

order
the

we need not

address the correctness of the sentence in this case.

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First, no matter how defendant

phrases this issue,

it still concerns an appeal of a sentence within

3741(a)(3)

--

that is, one that is "greater than the sentence specified

in

the

applicable

guideline

range."

The

fact

is that

defendant received the benefit of his bargain and avoided the

possibility of

type

a 15-year sentence.

of appeal which is

barred by 18

"This is

precisely the

U.S.C.

3742(c)(1)."

Prieto-Duran, 39 F.3d at 1120 (where a sentence is within the

____________

plea agreement, no appeal

will lie even though the

sentence

is an upward departure from the guideline range).

Second, the plea

departure

on the

agreement provided for

ground that

category under the Guidelines

seriousness of his

defendant's

an upward

criminal history

did not adequately reflect the

past criminal conduct.

The parties thus

agreed to an upward departure based on

If

reliable

the

4A1.3:

information indicates

criminal

history category

that

does not

adequately reflect the seriousness of the

defendant's past criminal conduct

or the

likelihood that the defendant will commit

other

crimes,

imposing

the

court

may

consider

sentence departing

from the

otherwise applicable guideline range.

Such

information includes

"prior

sentence(s) not

computing the criminal history category."

Defendant's argument is

of

a conviction contained in

U.S.S.G.

2K2.1

in

4A1.3(a).

premised on the definition

921(a)(20) and referred to in

(calculating

firearms violations).

used

the base

offense level

for

The problem with this position is that

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4A1.3 is

refers

not limited

to "past convictions."

to "past criminal

conduct."
_______

Rather,

Certainly, defendant's

past convictions are evidence of criminal conduct.

there

is

indicates

nothing

that the

consider under

suggests.

in

Thus,

the

kind

4A1.3 is

the

Guidelines

of criminal

or

did

Moreover,

elsewhere

conduct

restricted in

district court

it

which

a court

the way

not err

may

defendant

in

the

calculation of the upward departure defendant received.

Defendant's other claim is that the

district court

state with sufficient specificity

the grounds for

failed to

the upward departure

We

disagree.

district

First,

court

to

agreement specified

defendant's

reflect

as required by 18 U.S.C.

criminal

the

enhance

plea

history

the seriousness of his

likelihood that

he

district

not only

court

agreement

defendant's

the reason

3553(c)(2).

obligated

sentence

for the upward

category did

and

the

the

departure --

not

adequately

past criminal conduct or the

would continue

iterated

to commit

this

crimes.

at the

The

sentencing

hearing, but also observed that defendant often ended up back

in

prison after being released, that the absence of criminal

activity usually

was because defendant was

incarcerated and

that

there

against

were other

defendant.

We

criminal

charges

believe that

this

currently pending

is a

"reasoned

justification" for

its decision and plainly

appellate

See United States v. Emery, 991 F.2d 907,

___ _____________
_____

review.

-5-

is adequate for

913 (1st Cir. 1993)

(the district court need not

"mathematical or pseudo-mathematical

choice made in arriving at

terms each

explain in

microscopic

the precise sentence").

Further,

it is obvious from the record as a whole in this case why the

court

ordered an

upward departure.

Quinones, 26 F.3d 213, 219 (1st Cir.

________

departure

decision

where

"an

See
___

United States
_____________

v.

1994) (we will uphold a

explanation

can

fairly

be

implied from the record as a whole").

The judgment

affirmed.
________

of

the district

See Local Rule 27.1.

___

court is

summarily
_________

-6-