*Of the District of New Hampshire, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 04-1063

UNITED STATES OF AMERICA,

Appellee,

v.

EDDIE REYES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

 Torruella, Howard, Circuit Judges,

and DiClerico,* U.S. District Judge. 

Edward C. Roy, Jr., with whom Office of the Federal Public

Defender was on brief, for appellant.

Donald C. Lockhart, Assistant United States Attorney with whom

Craig N. Moore, United States Attorney and Kenneth P. Madden,

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

October 20, 2004
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Per Curiam. Eddie Reyes pleaded guilty to two counts of

distributing heroin and one count of possessing heroin with intent

to distribute. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) &

841(b)(1)(C). He appeals the sentences imposed for his

convictions, arguing that the district court improperly took into

account in calculating his criminal history score a 1994

Massachusetts state court "continued without finding" ("CWOF")

disposition of two state-law drug charges. Inclusion of the CWOF

disposition raised Reyes's criminal history score from I to II and

concomitantly rendered him ineligible for application of the safety

valve provision in U.S.S.G. § 5C1.2(a)(1).

Before the district court, Reyes maintained that

inclusion of the CWOF disposition would be improper because, in the

Massachusetts proceeding, he neither admitted to sufficient facts

to make the disposition the equivalent of a guilty plea nor was he

provided with an interpreter. Reyes argued that, accordingly,

there was no actual finding or admission of guilt -- a prerequisite

to the inclusion of the disposition in the federal criminal history

calculation. See U.S.S.G. § 4A1.2(f). The district court rejected

these arguments and applied circuit precedent holding that

Massachusetts CWOF dispositions are to be included in criminal

history calculations under the federal sentencing guidelines. See

United States v. Dubovsky, 279 F.3d 5, 7 (1st Cir. 2002); United

States v. Morillo, 178 F.3d 18, 21 (1st Cir. 1999). The court also
1Reyes admits that he was counseled in the Massachusetts

proceeding.

2Reyes also raises the following two arguments not raised

before the district court: (1) the CWOF disposition should not be

counted because the underlying charge was ultimately dismissed; and

(2) the CWOF disposition should not be counted because the

proceeding that was continued without a finding did not comply with

Massachusetts procedural requirements. Neither argument comes

close to establishing plain error within the meaning of Fed. R.

Crim. P. 52(b). As to Reyes's first argument, we have held that an

eventual dismissal is a normal outcome in a CWOF case and in no way

results in an expungement which would preclude the disposition from

being counted. See Dubovsky, 279 F.3d at 8-9; Morillo, 178 F.3d at

20. And as to Reyes's second argument, we have held that

procedural irregularities in the state court proceeding cannot be

challenged during the federal sentencing. See Delgado, 288 F.3d at

52 n.4. 

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rebuffed Reyes's attempt to attack the legitimacy of the

Massachusetts proceeding on grounds other than absence of counsel.

See, e.g., United States v. Wall, 349 F.3d 18, 27 (1st Cir. 2003)

(barring collateral challenges to prior state convictions in

federal sentencing proceedings for any reason other than lack of

counsel, and thus applying in the guidelines context the rule of

Custis v. United States, 511 U.S. 485 (1994)), cert. denied, 124 S.

Ct. 1727 (2004); United States v. Delgado, 288 F.3d 49, 52 n.4 (1st

Cir. 2002) (similar); Brackett v. United States, 270 F.3d 60, 65

(1st Cir. 2001) (similar).1

On appeal, Reyes argues that the district court erred in

reading Dubovsky and Morillo as precluding an argument that he

neither admitted guilt nor legitimately was found guilty in the

1994 Massachusetts proceeding.2 In pressing this argument, Reyes
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points out that Dubovsky and Morillo (as well as two earlier cases

in which we considered whether a Massachusetts CWOF disposition

should be included in a guidelines criminal history calculation,

United States v. Nicholas, 133 F.3d 133 (1st Cir. 1998) and United

States v. Roberts, 39 F.3d 10 (1st Cir. 1994)) did not mention

Custis and explicitly analyzed the procedures used by the

Massachusetts courts during the proceedings that were continued

without a finding. See Dubovsky, 279 F.3d at 5; Morillo, 178 F.3d

at 18; Nicholas, 133 F.3d at 134-37; Roberts, 39 F.3d at 13-14.

Reyes sees within the methodology of Dubovsky, Morillo, Nicholas,

and Roberts an implicit recognition that the rule applied in Wall,

Delgado, and Brackett does not bar an individualized assessment

whether the defendant admitted guilt or was found guilty in the

proceeding in which his prior CWOF judgment was rendered. We

reject Reyes's argument.

We are as bound by the holdings of Dubovsky and Morillo

as was the district court. See Charlesbank Equity Fund II v.

Blinds to Go, Inc., 370 F.3d 151, 160 n.4 (1st Cir. 2004)

(observing that, in a multipanel circuit, a new panel is bound by

prior panel decisions directly on point absent intervening and

binding authority which undermines or calls into question the prior

panel's judgment). Accordingly, we are obliged to uphold the

court's inclusion of the CWOF disposition in Reyes's criminal

history calculation. In any event, we see no inconsistency
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between, on the one hand, Dubovsky, Morillo, and the earlier cases

analyzing how Massachusetts CWOF dispositions should be treated for

purposes of U.S.S.G. § 4A1.2(f), and, on the other, Wall, Delgado,

Brackett, and similar cases. In the Dubovsky line of cases, we

merely analyzed whether the proceedings with Massachusetts CWOF

findings are by their nature proceedings in which the federal

defendant can be said to have been found guilty or to have admitted

guilt. Repeated analyses were made necessary because the

Massachusetts legislature has more than once amended the relevant

procedural framework. See Roberts, 39 F.3d at 11. But we in no

way suggested that the rule articulated in Wall would not apply

once we had determined that Massachusetts CWOF dispositions are to

be counted under U.S.S.G. § 4A1.2(f). Reyes has not presented us

with any basis for disregarding the Wall rule in this context, and

we can see no reason for doing so.

Affirmed.