United States Court of Appeals

For the First Circuit

No. 00-2325

UNITED STATES OF AMERICA,

Appellee,

v.

FELIX MATEO, A/K/A JOHNNY RODRIGUES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

 Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lipez, Circuit Judge.

James Patrick Bardsley on brief for appellant.

James B. Farmer, United States Attorney, and Michael J.

Pelgro, Assistant United States Attorney, on brief for appellee.

November 9, 2001

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SELYA, Circuit Judge. Relying primarily upon

developments that occurred after he had filed his notice of

appeal, defendant-appellant Felix Mateo invites us to vacate the

121-month incarcerative sentence that the district court imposed

for his admitted involvement in drug-trafficking activities.

Finding the new matter irrelevant and discerning no error in the

court's sentencing determinations, we decline the invitation.

Our standard of review in this sentencing appeal is

familiar: we scrutinize the district court's legal

determinations (including its application of the sentencing

guidelines) de novo and check its factual determinations for

clear error. United States v. St. Cyr, 977 F.2d 698, 701 (1st

Cir. 1992). In carrying out this function, we glean the

pertinent facts from the record of the change-of-plea and

disposition hearings, supplemented by the presentence

investigation report (PSI Report). See United States v. Dietz,

950 F.2d 50, 51 (1st Cir. 1991).

In the spring of 1998, the Drug Enforcement

Administration (DEA) began to ponder the appellant's role in

drug trafficking in and around Dorchester, Massachusetts. This

aspect of the DEA's investigation culminated in the appellant's

arrest on January 5, 1999. Two days later, a federal grand jury

indicted the appellant and several confederates for a wide
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variety of drug-trafficking offenses. The charges against the

appellant included possession of cocaine, cocaine base, and

heroin with intent to distribute, as well as conspiracy. See 21

U.S.C. §§ 841(a)(1), 846.

The appellant originally maintained his innocence, but

changed his plea on January 27, 2000. The probation department

prepared the PSI Report. It determined that the combination of

drugs attributable to the appellant resulted in a base offense

level of 34, and then applied a three-level credit for

acceptance of responsibility. See USSG §3E1.1. It also noted

the applicability of a ten-year minimum mandatory sentence,

given the quantity of drugs involved. See 21 U.S.C. §

841(b)(1)(A)(iii). The appellant did not challenge any of these

subsidiary determinations.

Even so, the PSI Report was not entirely

uncontroversial. It concluded that the appellant, who

previously had been convicted in a Massachusetts state court on

a narcotics charge, was still under a criminal justice sentence

related to that charge when he committed the instant offenses.

This finding dictated the assessment of two additional criminal

history points, see USSG §4A1.1(d), which not only sufficed to

move the appellant into a higher criminal history category (CHC)

but also rendered him ineligible for the so-called "safety
1We have explained before how the safety valve operates.

E.g., United States v. Ortiz-Santiagó, 211 F.3d 146, 150-51 (1st

Cir. 2000). We also have explained how the addition of criminal

history points can affect the duration of a defendant's

sentence. E.g., United States v. Correa, 114 F.3d 314, 316 (1st

Cir. 1997); United States v. Diaz-Villafane, 874 F.2d 43, 47-48

(1st Cir. 1989). It would serve no useful purpose to rehearse

those explanations here.

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valve" provision, USSG §5C1.2 (and, thus, for relief from the

mandatory minimum sentence).1

The district court convened the disposition hearing on

August 25, 2000. The appellant argued that he should be in a

lesser CHC (and, accordingly, eligible for the safety valve).

In mounting this argument, he asseverated that the supposed

basis for the additional criminal history points — the existence

of an outstanding probation violation warrant stemming from his

prior state-court conviction — was insupportable because the

warrant had been issued erroneously. The district court

rejected this reasoning; concluded that the warrant was, indeed,

outstanding; ruled that the appellant therefore had committed

the offenses of conviction while under a criminal justice

sentence; and increased the appellant's criminal history score.

The court then used the higher CHC to fix the guideline

sentencing range (121-151 months) and imposed a sentence at the

nadir of the range.
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In this venue, the appellant concentrates his fire on

the lower court's determination that he was under a criminal

justice sentence when he committed the offenses of conviction —

a determination that adversely affected his guideline sentencing

range and, in the bargain, rendered him ineligible for relief

from the ten-year mandatory minimum. To explain the etiology of

the determination, we must retreat to April 11, 1995. On that

date, the appellant appeared before the West Roxbury District

Court on a heroin distribution charge. The court imposed a

suspended sentence, but placed him on probation for two years

(until April 11, 1997).

Despite this show of leniency, the appellant apparently

failed to meet with his probation officer after April of 1996.

This lapse interrupted the scheduled termination of his

probation and, on June 4, 1997, the state court issued a default

warrant for the appellant's apprehension. Because the

appellant's probation had not been terminated and the default

warrant was still outstanding on the date that he appeared for

sentencing in the instant case, Judge Saris treated him as being

under an unfulfilled criminal justice sentence and boosted his

criminal history score accordingly. See USSG §4A1.1(d)

(directing the district court to "[a]dd 2 points [to the

defendant's criminal history score] if the defendant committed
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the instant office while under any criminal justice sentence,

including probation, parole, supervised release, imprisonment,

work release, or escape status"); id. §4A1.2(m) (stating that an

outstanding warrant qualifies as a criminal justice sentence for

purposes of section 4A1.1(d) "even if [the underlying] sentence

would have expired absent such warrant"); see also id.

§4A1.1(d), comment. (n.4) (explaining the effect of an

outstanding probation violation warrant in language identical to

that used in section 4A1.2(m)).

Subsequent to sentencing, the appellant filed a notice

of appeal. He also moved to rearrange the legal landscape,

returning to the West Roxbury District Court and filing a motion

to terminate probation. On January 10, 2001, a state judge

granted the motion and ended the appellant's probation "nunc pro

tunc to April 11, 1997." Emphasizing this order and asserting

that the default warrant never should have issued, the appellant

assigns error to the district court's determination that he was

under a criminal justice sentence at the time he perpetrated the

offenses of conviction.

It is beyond cavil that, in the typical case, a

defendant who commits a crime while subject to an outstanding

violation warrant is deemed to be under a criminal justice
2Of course, the prior sentence must otherwise be countable

toward the defendant's criminal history score. United States v.

Camilo, 71 F.3d 984, 987 (1st Cir. 1995). That condition does

not present a problem here.

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sentence for purposes of USSG §4A1.1(d).2 See United States v.

Anderson, 184 F.3d 479, 480-81 (5th Cir. 1999), cert. denied,

528 U.S. 1091 (2000). That is true even if the underlying

sentence, as originally pronounced, would by its terms have

expired but for the violation. See United States v. Camilo, 71

F.3d 984, 986 (1st Cir. 1995); see also USSG §4A1.1(d), comment.

(n.4). The pivotal question, then, is whether the nunc pro tunc

order of the West Roxbury District Court somehow alters that

result. There are two basic reasons why it does not.

In the first place, the appellant, by resting his

argument on a matter that arose only after sentence was imposed

in the federal district court, seeks to invalidate the district

court's judgment on the basis of a proffer that he did not make

below (indeed, the nunc pro tunc order did not exist on the date

of the disposition hearing). We long have adhered to the

general principle that new matter may not be introduced for the

first time in the court of appeals, see, e.g., Smith & Wesson v.

United States, 782 F.2d 1078, 1084 (1st Cir. 1986); United

States v. Kobrosky, 711 F.2d 449, 457 (1st Cir. 1983), and we

see no reason to deviate from that general principle here.
3The district court no doubt had in mind the filing of a

petition for post-conviction relief under 28 U.S.C. § 2255.

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Indeed, the principle applies with particular force in

this instance. At the disposition hearing, defense counsel

suggested that he might attempt to secure a ruling from the West

Roxbury District Court as to the validity of the warrant, and

Judge Saris specifically invited him to return "within a year"

should anything significant occur.3 Notwithstanding this express

invitation, the appellant never brought the nunc pro tunc order

to the attention of the district court; rather, he attempted to

leap-frog that court and use the order as a weapon of appellate

advocacy. We will not honor that tactic: the checks and

balances inherent in our multi-tiered judicial system would be

set askew were we to do so.

In all events, under the federal sentencing guidelines

post-sentencing maneuvers ordinarily cannot be used as historyaltering devices. Consequently, even were we to consider the

nunc pro tunc order, the appellant would not be advantaged. A

defendant's CHC is to be calculated at the time of sentencing,

see United States v. Cox, 934 F.2d 1114, 1124 (10th Cir. 1991),

and nothing in the sentencing guidelines suggests that it should

be modified, after sentence has been pronounced, because of a

subsequent action taken by a state court.
4While there may be exceptions for state-court convictions

obtained in violation of a defendant's Sixth Amendment right to

counsel, cf. Custis v. United States, 511 U.S. 485, 490-93

(1994), the appellant makes no such claim.

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We are left, then, with this scenario. When the

appellant appeared for sentencing in the instant case, his

state-court probationary term had not been concluded and a

default warrant was outstanding. On the face of things, the

appellant was under a prior unfulfilled criminal justice

sentence — a circumstance that constituted a proper predicate

for the assessment of two additional criminal history points.

See USSG §§4A1.1(d), 4A1.2(m). That ends the matter, for the

question of whether an individual is under a criminal justice

sentence for purposes of the sentencing guidelines is a question

of federal law, see Camilo, 71 F.3d at 987; United States v.

Renfrew, 957 F.2d 525, 526 (8th Cir. 1992) — and federal law

dictates that the district court take the state-court record as

it finds it.4

The appellant has a fallback position. He argues that,

leaving the nunc pro tunc order to one side, the state court

erred in issuing the default warrant, and that an erroneously

issued warrant should not be held against him. In Camilo, 71

F.3d at 987, we left open the question of whether defects in a

state warrant process might be considered by the sentencing
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court. Other courts, however, have held unequivocally that

(with possible exceptions not implicated here, see supra note 4)

the sentencing guidelines do not compel district courts to

inquire beyond the face of the state-court record, let alone to

make after-the-fact evaluations of the correctness vel non of

the decisions of state-court officials. See Anderson, 184 F.3d

at 481 ("In determining whether an outstanding violation warrant

triggers a two-point increase, the Guidelines do not require us

to assess the state authorities' diligence in executing a

violation warrant."); United States v. Elmore, 108 F.3d 23, 27

(3d Cir. 1997) ("The plain language of the Guidelines indicates

that two points are to be added whenever an outstanding warrant

is in existence, regardless of whether the warrant is stale

pursuant to state law at the time of sentencing, and

irrespective of whether state authorities have been lax in

attempting to execute the warrant."); see also United States v.

Correa, 114 F.3d 314, 317 (1st Cir. 1997) ("[J]udicial inquiry

into a defendant's criminal past for sentencing purposes,

properly conceived, requires only a snapshot of the surface, not

an archeological dig. Thus, when a federal court is obliged to

tabulate a defendant's criminal history score for sentencing

purposes, limiting the requisite inquiry to the formal record .

. . strikes the right balance."). Based on these authorities,
5The government, citing cases such as Commonwealth v.

Odoardi, 489 N.E.2d 674, 678-79 (Mass. 1986), and Commonwealth

v. Sawicki, 339 N.E.2d 740, 742-44 (Mass. 1975), urges us to

find that the default warrant here was validly issued under

Massachusetts law. We have no occasion to reach this question

and, consequently, we express no opinion on it.

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we hold that in determining whether to add criminal history

points under USSG §4A1.1(d), a sentencing court ordinarily is

not required to look beyond the face of the state-court record,

but, rather, may give weight to an outstanding warrant without

inquiring into the validity of that warrant.5

We need go no further. It is clear from the records

presented to the district court that, at the time of sentencing,

a warrant was outstanding in regard to the appellant's failure

to satisfy the terms of his state-court probation. The district

court was free to accept the state-court docket as it stood, and

the district court's determination was not undermined by the

state court's later issuance of a nunc pro tunc order vitiating

the warrant. Under these circumstances, it hardly can be said

that the district court erred either in adding points to the

appellant's criminal history score under USSG §4A1.1(d) or in

declaring him ineligible to reap the benefits of the safety

valve provision.

Affirmed.