United States Court of Appeals

For the First Circuit

No. 00-1141

UNITED STATES OF AMERICA,

Appellee,

v.

JESÚS DIPINA A/K/A GUSTAVO GONSALEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

Before

 Boudin, Circuit Judge,

Bownes, Senior Circuit Judge,

and Lynch, Circuit Judge.

Carlos J. Martínez for appellant.

Donald C. Lockhart, Assistant United States Attorney, with

whom Margaret E. Curran, United States Attorney, and James H.

Leavey, Assistant United States Attorney, were on brief for

appellee.

November 1, 2000
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BOWNES, Senior Circuit Judge. This case returns to us

after a remand to the district court for further consideration

of the sentencing ramifications of defendant-appellant Jesús

DiPina’s juvenile criminal dispositions. See United States v.

DiPina, 178 F.3d 68 (1st Cir. 1999). On remand, the district

court determined that DiPina's admission of sufficient facts on

juvenile heroin charges should count toward his criminal history

under the United States Sentencing Guidelines, and that he was

therefore ineligible for the “safety valve” provision.

Accordingly, the court reimposed its previous sentence. We

affirm. 

I.

On November 22, 1994, DiPina pled guilty to possession

with intent to distribute more than one hundred grams of heroin

in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) (1994). He

entered a plea agreement in which he agreed to plead guilty to

the charge in exchange for the government's promise to recommend

that the district court impose the shortest term of imprisonment

under the sentencing guidelines. The government also promised

to recommend that DiPina receive the benefits of the "safety

valve" provision, 18 U.S.C. § 3553(f), U.S.S.G. § 5C1.1 (1997),

which would exempt him from the mandatory minimum sentence of

five years' imprisonment. The safety valve would only apply,
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however, if DiPina did not have more than one criminal history

point.

The Presentence Investigation Report (PSR) prepared by

the Probation Department described DiPina's criminal record as

including three juvenile dispositions, all in the Rhode Island

Family Court: (1) tampering with a motor vehicle, "Admits

Sufficient Facts, one year probation, special condition fiftypercent restitution"; (2) resisting arrest, "Nolo, 16 months

probation"; and (3) unlawful delivery of heroin, "Admits

Sufficient Facts, eighteen months Rhode Island Training School."

The district court counted each of these dispositions as a

"prior sentence" under the sentencing guidelines. See U.S.S.G.

§§ 4A1.2(a)(1), (d)(2). Accordingly, it found that DiPina had

four criminal history points, placing him in criminal history

category III. DiPina therefore was ineligible for the safety

valve provision. On February 13, 1995, he was sentenced to the

statutory minimum of five years in prison. See 21 U.S.C. §§

841(a)(1), (b)(1)(B).

After some intermediate litigation not relevant to the

present case, DiPina appealed, contending that the district

court erred in determining his criminal history category. He

argued that two of his three prior juvenile dispositions -- for

the motor vehicle and heroin offenses, both carrying the
1At the original sentencing, DiPina did not dispute that the

charge of resisting arrest counted toward his criminal history.

As discussed infra, he now contends that the PSR was erroneous

in stating that he pled nolo contendere to the resisting arrest

charge. Rather, DiPina says, the transcript from that

disposition indicates that he admitted sufficient facts, just as

in the other two dispositions at issue. 

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notation "admits sufficient facts" -- should not count toward

his criminal history.1 If those two dispositions were

disregarded, DiPina's criminal history would be in category I

instead of category III, and he would be eligible for the safety

valve. On January 29, 1999, while the appeal was pending,

DiPina completed his prison term and began serving his five-year

term of supervised release.

On May 27, 1999, this court held that DiPina's appeal

raised issues that depended on "certain factual determinations

and the record is not clear enough as to these issues for us to

resolve the dispute." See DiPina, 178 F.3d at 78. We vacated

DiPina's sentence and remanded for further proceedings, stating:

[O]n remand, the district court must first

determine whether DiPina's prior juvenile

dispositions constituted diversions, such

that subsection 4A1.2(f) applies. If so,

because Family Court is the juvenile court

in Rhode Island, these dispositions cannot

be counted toward DiPina's criminal history.

 If, on the other hand, DiPina's prior

juvenile dispositions were not diversionary

dispositions, then the district court must

determine whether his admitting sufficient

facts in Rhode Island Family Court was
2R.I. Gen. Laws § 21-28-4.01(2)(a) makes it a crime "for any

person to manufacture, deliver, or possess with intent to

manufacture or deliver a controlled substance."

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tantamount to a plea of guilty or nolo under

U.S.S.G. § 4A1.2(a)(1). . . If DiPina's

prior juvenile dispositions were not

tantamount to a plea of guilty or nolo, then

they may not be counted toward his criminal

history.

Id. at 78.

On remand, the district court limited its consideration

to only one of DiPina's juvenile dispositions: his admission of

sufficient facts as to the unlawful delivery of heroin charges,

which had resulted in an eighteen-month sentence at the Rhode

Island Training School (RITS). The government introduced the

following evidence: On July 15, 1992, the state of Rhode Island

filed four charges against DiPina based on allegations that he

delivered heroin to an undercover officer in violation of R.I.

Gen. Laws § 21-28-4.01(2)(a).2 Based on the state's allegation

that DiPina was a danger to the community, he was remanded to

the custody of RITS. DiPina waived his right to a probable

cause hearing.

On August 7, 1992, DiPina, DiPina's lawyer, and

DiPina's mother signed the first page of a two-page document

entitled "Request for Admission of Specific Facts or Admission"

("RFA"). The first page of the RFA described the "offense(s)"
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as "Ct-1 - Ct-4 unlawful delivery." As to those offenses,

DiPina affirmed that he was "request[ing] Court permission to

withdraw [his] denial and to enter an ADMISSION TO SUFFICIENT

FACTS OR ADMISSION." DiPina also stated: 

I understand that the ADMISSION OF

SUFFICIENT FACTS is for all purposes the

same as an ADMISSION and that I will be

admitting sufficient facts to substantiate

the offense(s) which [have] been brought

against me in the cases to which these pleas

relate.

In the RFA, DiPina affirmed that by changing his plea

he would be "giving up and waiving" seven enumerated rights: (1)

the right to a judge trial and to an appeal of any finding of

delinquency or waywardness; (2) the right to insist that the

state offer evidence proving the elements of the offenses beyond

a reasonable doubt; (3) the presumption of innocence; (4) the

privilege against self-incrimination; (5) the right to confront

and cross-examine the witnesses against him; (6) the right to

present evidence and witnesses on his own behalf and to testify

on his own behalf; and (7) the right to appeal the sentence

imposed by the court after the entry of his admission of

sufficient facts. He also affirmed that he had received no

promises other than that the court would impose a sentence of

eighteen months in RITS, effective July 14, 1992, and that other

pending charges would be dismissed.
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Finally, DiPina affirmed that: (1) he understood that

the court could "keep jurisdiction" over him until he was

twenty-one years old; (2) he understood that absent the court's

permission, he would not be allowed to withdraw his plea after

the disposition was imposed; (3) he had discussed the RFA with

his attorney, who had explained the RFA to him; (4) he had "no

questions" concerning the meaning of the RFA and understood the

RFA "completely"; and (5) he swore to the truth of all

statements in the RFA. 

DiPina's RFA was presented to the Rhode Island Family

Court on August 7, 1992. DiPina's counsel confirmed that he had

advised DiPina of the rights he would be waiving, and summarized

the rights discussed in the RFA. The prosecutor stated that the

state was prepared to prove beyond a reasonable doubt that

DiPina "did deliver unlawfully heroin to an undercover officer

from the Providence Police on July 1st, July 7th, July 8th and

July 14th of this year."

The family court then addressed DiPina personally and

established, inter alia, that DiPina: (1) was seventeen years

old; (2) had entered an earlier plea before the court; (3) had

been detained at RITS since July 14, 1992; (4) had not recently

used drugs or alcohol; and (5) understood "each and every one of

the rights" he was giving up. In response to the court's
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questions, DiPina admitted that on July 1, 1992, at 1:25 p.m.,

he sold heroin to a man on Comstock Street in Providence, Rhode

Island. DiPina further admitted that he sold heroin to the same

man on July 7th, 8th and 14th in 1992. DiPina stated that each

sale was for a different amount of heroin, but that he could not

recall the exact amounts of heroin that he sold. 

At the conclusion of the hearing, the family court

pronounced the following judgment and sentence:

I'll accept an admission of sufficient facts

for a finding that [DiPina] is delinquent on

all four petitions. [DiPina] is committed

to the Training School for 18 months.

In written orders of the same date, the court stated that DiPina

had been advised of his rights, had waived those rights, and had

"admit[ted] sufficient facts and submit[ted] to court

jurisdiction." The court entered a finding that DiPina was

"delinquent" and committed him to the custody of RITS for

eighteen months. 

Also on that date, the family court signed a

"Certificate of Judge" on the second page of the RFA. There,

the court certified that the parties had provided the court with

the RFA and that the court had established at the hearing that

DiPina understood the rights listed in the RFA and the

consequences of his plea. The court further certified: (1) "I

have also been satisfied by the prosecutor's statement of the
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facts, [DiPina's] answers and the content of the [RFA], that

there is a factual basis for [DiPina's] plea"; and (2) "I find

that this plea is made voluntarily, intelligently and with

knowledge and understanding of all matters set forth in the

attached [RFA]." 

In determining whether this family court disposition

should be counted in DiPina's criminal history, the district

court first focused on the second question posed by the remand

order: whether the disposition was tantamount to a guilty or

nolo contendere plea. The court stated that DiPina "clearly

admitted guilt of four sales of heroin to an undercover agent at

four different times," and hence had essentially entered a

guilty plea. 

The district court then addressed the first question

posed by the remand order: whether the heroin disposition was

diversionary within the meaning of § 4A1.2(f). It noted that

the state court had sentenced DiPina not to a treatment center,

hospital or school, but to eighteen months at RITS, which it

found to be a "juvenile prison" in which males who have

committed serious crimes can be incarcerated until age twentyone. The district court concluded that the heroin disposition
3The district court employed the following definition of

diversionary disposition: 

A diversion is when there is a disposition

that takes the particular defendant out of

the criminal justice system as where someone

is sent, for example, to a treatment center

instead of incarcerating them, where someone

is sent to a hospital, or where, in the case

of a juvenile, may be sent to a special

school of some sort.

4At oral argument, DiPina stated that the district court had

imposed the term of supervised release to run anew from the date

of resentencing, rather than giving him credit for supervised

release already served. The transcript of the resentencing,

however, does not support this contention; rather, it indicates

that the court simply reimposed the previous sentence, while

acknowledging that DiPina had already served some of it. DiPina

has not pointed to any other evidence (i.e. documentation from

the Probation Department) that he has been doubly sentenced. 

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"was certainly not a diversion from the criminal justice

system."3

Accordingly, the district court resentenced DiPina to

sixty months’ imprisonment and five years’ supervised release,

the same sentence that it had previously imposed. The court

noted that DiPina had served the prison term, but that his term

of supervised release was still in effect.4 This appeal

followed.

II.

We begin with the text of the relevant sentencing

guidelines. Sections 4A1.1(a)-(c) of the guidelines, titled

"Criminal History Category," read in pertinent part: 
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The total points from items (a) through (f)

determine the criminal history category in

the Sentencing Table in Chapter Five, Part

A. 

 (a) Add 3 points for each prior sentence

of imprisonment exceeding one year and one

month. 

 (b) Add 2 points for each prior sentence

of imprisonment of at least sixty days not

counted in (a). 

 (c) Add 1 point for each prior sentence

not counted in (a) or (b), up to a total of

4 points for this item.

Under certain circumstances, offenses committed prior to age

eighteen are counted under § 4A1.1. See id., cmt. n.2 (citing

§ 4A1.2(d)). As to those offenses, § 4A1.2(d)(2) instructs the

sentencing court to 

 (A) add 2 points under § 4A1.1(b) for each

adult or juvenile sentence to confinement of

at least sixty days if the defendant was

released from such confinement within five

years of his commencement of the instant

offense; [and]

 (B) add 1 point under § 4A1.1(c) for each

adult or juvenile sentence imposed within

five years of the defendant's commencement

of the instant offense not covered in (A).

U.S.S.G. § 4A1.2(d)(2).

Section 4A1.1 refers us to § 4A1.2(a) for the

definition of the term "prior sentence":

(a) Prior Sentence Defined 

(1) The term "prior sentence" means any

sentence previously imposed upon

adjudication of guilt, whether by guilty

plea, trial, or plea of nolo contendere, for

conduct not part of the instant offense.
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U.S.S.G. § 4A1.2(a)(1). Certain prior sentences, however, "are

not counted or are counted only under certain conditions." §

4A1.1, cmt. n.3. Of relevance here is the "diversionary

disposition," which "is counted only where there is a finding or

admission of guilt in a judicial proceeding." Id. The

commentary references "Diversionary Dispositions," § 4A1.2(f),

which provides:

Diversion from the judicial process without

a finding of guilt (e.g., deferred

prosecution) is not counted. A diversionary

disposition resulting from a finding or

admission of guilt, or a plea of nolo

contendere, in a judicial proceeding is

counted as a sentence under § 4A1.1(c) even

if a conviction is not formally entered,

except that diversion from juvenile court is

not counted.

U.S.S.G. § 4A1.2(f) (emphasis added). 

III.

In reviewing a sentence under the guidelines, we

determine the applicability of each guideline to a particular

case de novo. See United States v. Cali, 87 F.3d 571, 575 (1st

Cir. 1996). We review the district court's factual

determinations for clear error, giving "due deference to the

district court’s application of the guidelines to the facts."

Id. (internal quotation marks omitted). 

On appeal, DiPina asserts several points: (1) the

court erroneously concluded that his juvenile dispositions were
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not diversionary within the meaning of § 4A1.2(f); (2) the court

erroneously determined that his admission of sufficient facts in

Rhode Island Family Court was tantamount to a guilty plea; (3)

the court violated Fed. R. Crim. P. 32 at the resentencing; (4)

the court incorrectly calculated DiPina's criminal history

score; and (5) the judge was biased. 

A. "Diversionary disposition"

First, DiPina contends that his juvenile court

proceedings were diversionary dispositions within the meaning of

U.S.S.G. § 4A1.2(f). In our earlier decision in this case, we

noted:

[T]he guidelines do not specifically define

what they mean by a "diversionary

disposition," nor did the drafters make it

particularly clear what they intended to

mean by that term. They offer one, and only

one, example -- a "deferred prosecution" --

which is certainly not exhaustive. 

DiPina, 178 F.3d at 78 (citing § 4A1.2(f)). Although this court

has not assembled a comprehensive definition of a diversionary

disposition, our cases provide some examples. In United States

v. Morillo, 178 F.3d 18, 21 (1st Cir. 1999), we held that a

"continuance without a finding," based on a defendant's

admission of facts sufficient for a guilty finding on charges of

violating a domestic violence restraining order and threatening

to commit a crime, was diversionary within the meaning of the
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guidelines. See also United States v. Nicholas, 133 F.3d 133,

133-35 (1st Cir. 1998). We also affirmed the application of the

diversionary disposition label to an "'adjudication withheld'

battery conviction." See United States v. Cadavid, 192 F.3d

230, 235 (1st Cir. 1999). In these cases, either the

adjudication or the sentence was deferred in some way; in none

did the court immediately impose a sentence of imprisonment.

This is consistent with case law from other circuits.

In United States v. Shazier, 179 F.3d 1317, 1319 (11th Cir.

1999), the Eleventh Circuit concluded that there was no

diversionary disposition where the defendant had served a

six-month prison term: "Although not specifically defined, it

is clear that [§ 4A1.2(f)] does not apply to sentences where

confinement is imposed and served." Id. In United States v.

Crawford, 83 F.3d 964, 966 (8th Cir. 1996), the Eighth Circuit

rejected the defendant’s contention that his juvenile sentence

for assault constituted a diversionary disposition, on the

ground that he "had completed [his] probation and community

service, and thus discharged the sentence imposed." Id.

Without adopting wholesale the district court's

definition of “diversionary,” see note 3, supra, we conclude

that there was no error in the determination that the heroin

disposition was not diversionary. There was no deferral in the
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prosecution, adjudication, or sentencing on DiPina's heroin

charges and DiPina was sentenced to imprisonment. The family

court entered a finding that DiPina was "delinquent" and

immediately sentenced him to an eighteen-month term in the

custody of RITS, of which at least seven months were actually

served. RITS, the district court found, was a prison in which

serious juvenile offenders were incarcerated. Cf. United States

v. Unger, 915 F.2d 759, 763 (1st Cir. 1990) (assuming that a

RITS sentence constituted "imprisonment"). This disposition

does not, therefore, resemble cases in which courts have found

diversion within the meaning of § 4A1.2(f) on the ground that

the adjudication was somehow withheld, stayed, or deferred. See

Morillo, 178 F.3d at 20; see also United States v. Amster, 193

F.3d 779, 779-80 (3d Cir. 1999) (diversionary disposition where

defendant pled nolo contendere, "adjudication was withheld," and

case was dismissed after defendant complied with certain

conditions); United States v. Bagheri, 999 F.2d 80, 82-83 (4th

Cir. 1993) (diversionary disposition where court imposed

"probation without entry of judgment"); United States v.

Rockman, 993 F.2d 811, 812-14 (11th Cir. 1993) (diversionary

disposition where defendant pled nolo contendere and "the state

court withheld adjudication of guilt"); United States v. Frank,

932 F.2d 700, 701 (8th Cir. 1991) (diversionary disposition
5Rhode Island defines "delinquent" as "any child -- who has

committed any offense which, if committed by an adult, would

constitute a felony . . ." R.I. Gen. Laws § 14-1-3(5). It is

true that Rhode Island law distinguishes between a finding of

juvenile delinquency and a criminal conviction. See In re

Bernard H., 557 A.2d 864, 867 (R.I. 1989); In re John D., 479

A.2d 1173, 1176 (R.I. 1984). For purposes of calculating

criminal history, however, the sentencing guidelines are

concerned not with prior convictions, but with "prior

sentences." See U.S.S.G. §§ 4A1.1, 4A1.2(a).

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where defendant pled guilty and "the state court stayed the

adjudication" and imposed probation). 

DiPina argues that he was found "delinquent" in the

heroin disposition, which is not the same as finding that he

committed the crime.5 Assuming this is true, it does not lead

to the conclusion that dispositions involving delinquency

findings are necessarily diversionary. Rhode Island has

specific provisions for the diversion of juvenile offenders,

which apparently were not applied to DiPina's case. R.I. Gen.

Laws § 42-72-33(a) describes a "youth diversion program" that

applies to certain first-time offenders between the ages of nine

and seventeen "who may be the subject of a family court

petition." Under this statute, "[r]eferrals to the youth

diversionary program shall be served for a maximum of ninety

(90) days" and certain services shall be rendered to the

offenders. Id.; see also R.I. Gen. Laws § 14-1-32(4). The

existence of these provisions suggests that Rhode Island does
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not regard an adjudication of delinquency resulting in

incarceration in RITS as diversionary.

More importantly, it is federal law, not Rhode Island

law, that controls the analysis of whether the heroin

disposition was diversionary. See Unger, 915 F.2d at 762-63.

Accordingly, we focus on the substantive import of the

disposition, not the state-law terminology describing it. See

id.; see also United States v. Kirby, 893 F.2d 867, 868 (6th

Cir. 1990) (fact that defendant had been adjudicated delinquent

as a minor could be considered in determining his criminal

history category under sentencing guidelines, even though

adjudication of delinquency by a juvenile court could not be

deemed a conviction under state law). As discussed supra, there

was no deferral or diversion of DiPina’s adjudication or

sentencing on the heroin charges; the finding of delinquency

does not change the result.

DiPina also contends that the judge erred in not

considering whether his other juvenile dispositions – for

disorderly conduct and tampering with a motor vehicle – were

diversionary. Such analysis was not necessary, however, as the

heroin disposition alone raised his criminal history points to

a level at which the safety valve provision was unavailable.

See DiPina, 178 F.3d at 75 ("it would appear that counting one
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such prior disposition would be enough to produce the criminal

history level required to sustain DiPina's sentence in the

present case, regardless of how the other prior disposition is

treated"). 

B. Tantamount to guilty plea

Second, DiPina challenges the district court’s

conclusion that his admission of sufficient facts in the heroin

disposition was tantamount to a guilty plea. In our earlier

opinion, we said that in order to so conclude, "the court must

have found that the defendant has confessed to certain events or

that other evidence proves such events, and that the events

constituted a crime." DiPina, 178 F.3d at 75 (internal

quotation marks omitted). Specifically, we recommended that the

district court examine factors such as whether the prosecutor

recited what the state would prove if the case were to proceed

to trial; whether the defendant accepted the prosecutor's

version of the events; and whether the family court judge

determined that the admitted facts, if proved, would constitute

an offense. Id. at 74. If these factors were present, the

admission of sufficient facts would likely be tantamount to a

guilty or nolo plea. If, on the other hand, "the prosecutor and

the defendant or his counsel . . . [did] little more than tell

the judge that the parties have agreed to dispose of the matter
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by a continuance, admission to sufficient facts, and a treatment

program” it would not appear that the defendant had admitted to

a crime. Id. 

The record permits no conclusion other than that

DiPina’s admission of sufficient facts on the heroin charges,

given what transpired at the hearing, effectively constituted a

confession to events that constituted a crime. See id. at 75.

During the family court hearing, the prosecutor recited what the

state would prove if the matter were to proceed to trial: that

DiPina "did deliver unlawfully heroin to an undercover officer

from the Providence Police on July 1st, July 7th, July 8th and

July 14th of [1992]." DiPina expressly and without

qualification admitted those facts. Furthermore, he affirmed in

the RFA that he would be "admitting sufficient facts to

substantiate the offense(s) which [have] been brought against me

in the cases to which these pleas relate." Finally, the family

court determined that DiPina's conduct constituted an offense

under Rhode Island law, R.I. Gen. Laws § 21-28-4.01(2)(a).

Hence, we conclude that the district court correctly determined

that the heroin disposition was equivalent to a guilty plea for

sentencing purposes. We do not hold that a simple "admission to

sufficient facts" is automatically enough in the absence of

safeguards such as occurred here.
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DiPina complains that the family court failed to inform

him of all of the rights enumerated in Fed. R. Crim. P. 11.

Nowhere in our earlier opinion, however, did we suggest that

compliance with Rule 11 is a prerequisite to determining that an

admission of sufficient facts is tantamount to a guilty or nolo

contendere plea, and DiPina cites no authority to support his

position. We have, in fact, previously stated that any sequence

that gives "reasonable assurance that the defendant had

confessed to certain events and that the events constituted a

crime . . . would make the admission effectively an admission of

guilt under the guidelines." United States v. Roberts, 39 F.3d

10, 13 (1st Cir. 1994). As it happens, the record supports the

conclusion that the family court substantially complied with

Rule 11 in the heroin disposition. The court effectively

informed DiPina of the nature of the charges against him; the

maximum possible penalty; his right to contest the charges and

choose to proceed to trial; his right to assistance of counsel;

his right against compelled self-incrimination; that by entering

the plea he was waiving his right to trial; and that he was

waiving his right to appeal. See Fed. R. Crim. P. 11(c).

Moreover, the family court addressed DiPina and ascertained that

he understood the rights he was giving up, that the plea was
6To the extent that DiPina additionally argues that the

court erred in failing to inform him of his right to appeal at

the resentencing, his timely appeal makes clear that any such

error was harmless. See Pequero v. United States, 526 U.S. 23,

24 (1999).

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entered voluntarily and was based on sufficient facts. See Fed.

R. Crim. P. 11(d).

C. Fed. R. Crim. P. 32

DiPina contends that the district court violated Fed.

R. Crim. P. 32 in not providing him an opportunity for

allocution before reimposing the sentence. This court has held,

however, that Rule 32 does not require that opportunity where

the court merely reimposes a sentence identical to one imposed

before, as long as the rationale for the sentence is the same.

See United States v. Garafano, 61 F.3d 113, 116-17 (1st Cir.

1995). Here, the district court’s rationale was identical to

that of the original sentence: that DiPina was ineligible for

the safety valve provision due to a juvenile disposition that

increased his criminal history points above one.

DiPina also asserts that the court erred in failing to

verify whether DiPina and his counsel read and discussed the PSR

and in failing to determine whether they had any objections to

it. Nothing in the record indicates, however, that a new PSR

was issued prior to the resentencing. See id. at 117. Hence,

the court was under no obligation to revisit the issue.6 See id.
7He contends, moreover, that the charge was of disorderly

conduct, not resisting arrest. 

8The judge's comments included the following:

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D. Calculation error

DiPina contends that the court incorrectly calculated

his criminal history points at resentencing. He argues that the

PSR erroneously stated that he had pled nolo contendere to the

resisting arrest charge, while in fact he had admitted

sufficient facts.7 Therefore, he contends, this disposition

should not yield any criminal history points. 

At his original sentencing, DiPina did not dispute that

the charge of resisting arrest counted toward his criminal

history. Even assuming arguendo that DiPina may raise this

issue now, it cannot change the outcome. The heroin disposition

alone raises DiPina's criminal history points to two. As we

have said, having more than one point makes him ineligible for

the safety valve. Hence, we need not consider any of DiPina's

other juvenile dispositions.

E. Bias

DiPina contends that the district judge exhibited bias

against him based on his remarks at the resentencing. The judge

twice characterized DiPina's legal arguments as "worthless," and

commented on his criminal conduct.8 DiPina also complains that
In fact the defendant was at one time sent to a

special school in Narragansett, but he didn't learn

anything from that, and he became a juvenile heroin

dealer, just about as bad as you can be in the drug

field. The worst of all drugs. The most addictive of

all drugs. And he graduated. He graduated to

becoming an adult heroin dealer.

* * * *

I suppose technically his supervised release was not

in effect, but it certainly is going to be in effect

as of now, and if he's charged with another drug

offense, he'll be a violator, and we'll deal with him.

* * * *

The defendant is on his way to doing life on the

installment plan. He's going to be in and out of

prison most of the rest of his life because he is a

habitual offender. He's a drug dealer, and he hasn't

changed, apparently.

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bias was evidenced by the court's reliance on Unger despite our

statement that Unger did not control this case; its failure to

make the necessary findings of fact and rulings of law upon

remand; and its failure to comply with Rule 32. 

It is unclear whether DiPina is seeking the recusal of

the district judge and reversal of the resentencing, or whether

he is simply requesting that any additional proceedings be

prospectively assigned to a different judge. It does not appear

that DiPina moved below for the judge's recusal or otherwise

raised the issue of bias, and we therefore consider it waived.

See In re Abijoe Realty Corp., 943 F.2d 121, 127 (1st Cir.

1991); United States v. Devin, 918 F.2d 280, 294 n.11 (1st Cir.

1990). Moreover, because we do not remand for any further
-25-

proceedings, we need not consider assigning the matter to a

different judge in the future.

Affirmed.