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United States v. Orsini

United States Court of Appeals, First Circuit

October 26, 2018

ANIBAL ORSINI, a/k/a Ruben Guerrero, a/k/a Jay, a/k/a Jay South, Defendant, Appellant.


          Elizabeth Latif on brief for the appellant.

          Halsey B. Frank, United States Attorney, and Julia M. Lipez, Assistant United States Attorney, on brief for appellee.

          Before Howard, Chief Judge, Selya and Thompson, Circuit Judges.


         During the sentencing phase of his criminal case, defendant-appellant Anibal Orsini repeatedly agreed that he should be sentenced as a career offender. See USSG §4B1.1. Taking the appellant at his word, the district court - after independently finding that the appellant's criminal record qualified him for career offender status - sentenced him as such to a 188-month term of immurement. On appeal, the appellant has suffered an attack of buyer's remorse: he argues for the first time that his prior criminal record does not include predicate convictions sufficient to rank him as a career offender. The government says that he has waived this argument.

         The orderly administration of justice depends upon a network of rules. The waiver rule is an important component of this network, and we agree with the government that waiver principles are apposite here. Applying those principles, we discern no reason to allow the appellant to shed the consequences of his waiver as easily as an iguana sheds its skin. Because the appellant has waived his "career offender" argument and has made no showing sufficient to excuse that waiver, we affirm the challenged sentence.

         I. BACKGROUND

         We briefly rehearse the travel of the case. The appellant was arrested and indicted in the aftermath of a major drug-trafficking investigation spearheaded by federal authorities. On March 28, 2017, he pleaded guilty to a single count of conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin and detectable quantities of cocaine hydrochloride and fentanyl. See 21 U.S.C. §§ 841(a)(1), 846. The probation department prepared a presentence investigation report (PSI Report), which recommended among other things that the appellant be sentenced as a career offender. See USSG §4B1.1. The PSI Report premised this recommendation on three predicate convictions reflected in the appellant's prior criminal record: a 2002 Massachusetts drug-trafficking conviction, a 2012 New Hampshire sale-of-controlled-substance conviction, and a 2013 Massachusetts drug-distribution conviction.

         The appellant objected to the PSI Report, but his objections did not directly contest the career offender enhancement. Rather, they centered around his claim that a number of crimes attributed to him by the probation department (not including the putative predicate-offense convictions) were actually committed by another individual. Wiping away the fruits of this mistaken identity, the appellant argued, would reduce his criminal history score and, thus, reduce his criminal history category.

         The probation department sustained this objection in part; it agreed that some of the reported offenses had been perpetrated by someone else and should not be attributed to the appellant. But because the appellant did not challenge any of the three specified career offender predicates, the revised PSI Report continued to recommend that the sentencing court treat him as a career offender.

         The appellant also objected to the total drug quantity and resulting base offense level, see USSG §2D1.1(c), as well as to proposed firearms and role-in-the-offense enhancements, see id. §§2D1.1(b)(1), 3B1.1(b). Notwithstanding the appellant's misgivings, the probation department declined to consent to any further changes to the PSI Report.

         The district court held a conference on August 10, 2017, to "find out what is in dispute before the [sentencing] hearing." The court began by questioning the relevance of the appellant's remaining identity-based objections, pointing out that those objections, even if sustained, would not alter the appellant's criminal history category (which would, in any event, be a function of his career offender status).[1] Defense counsel took no issue with this statement. When the court later repeated that the identity-based objections would "not affect [the appellant's] criminal history category in light of the career offender provisions," counsel acknowledged that the court was "correct."

         The court proceeded to address the drug-quantity issue and the proposed enhancements. It noted, however, that even using a drug-quantity figure satisfactory to the appellant, his career offender status would yield a significant guideline sentencing range (188-235 months). For that reason, the court suggested that the parties eschew any further wrangling over either drug quantity or enhancements and simply stipulate to the 188-235 month range. The parties accepted the court's suggestion and, as a result, the government abandoned its pursuit ...

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