
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          September 11, 1995    [NOT FOR PUBLICATION]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. Pelgro,
            ________________                                _________________
        Assistant United States Attorney, on brief for appellee.


                                 ____________________


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                      Per Curiam.  Defendant Frederick  J. Bonamo appeals
                      __________

            his  sentence  under  the  Sentencing  Guidelines.    He  was

            sentenced  to   nine  years  imprisonment   and  three  years

            supervised release  following a  valid plea agreement.   This

            agreement, made under Fed.  R. Crim. P. 11(e)(1)(C), included

            a specific sentence of 10 years incarceration and three years

            supervised release,  and provided  that the  government would

            move to dismiss  a pending  indictment.  As  a result of  the

            agreement,  defendant pled guilty  to an information charging

            him with violating 18 U.S.C.   922(d)(3) and 18 U.S.C.   371.

            By  so doing,  he avoided  going to  trial on  the indictment

            which would have  exposed him to a  15-year mandatory minimum

            sentence  under the  Armed Career Criminal  Act, 18  U.S.C.  

            924(e).   The  government argues  that defendant's  appeal is

            barred by 18 U.S.C.   3742(c)(1).

                      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,   3742(c)(1) provides

            that  he  or  she "may  not  file  a notice  of  appeal under

            paragraph  (3) or (4)  of subsection (a)  unless the sentence

            imposed  is  greater than  the  sentence  set forth  in  such

            agreement. . . ."1  Obviously, defendant's sentence is  lower




                                
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            1.  Section  3742(a)(3)  permits  a  defendant  to  appeal  a
            sentence greater  than the  applicable guideline range  and  
            3742(a)(4) permits  the  appeal  of  a  plainly  unreasonable
            sentence for an offense for which there is no guideline.















            than the 10-year sentence  stated in the plea agreement.   We

            therefore have  no  jurisdiction to  review  this  sentence.2

            See United States  v. Prieto-Duran, 39 F.3d  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  as the result  of an incorrect application  of

            the  sentencing  guidelines   --  appeals   permitted  by    

            3742(a)(1) and (a)(2) respectively.  His claim is premised on

            the  fact that  his sentence  represents an  upward departure

            from  the guideline range for  the offenses to  which he pled

            guilty.   Specifically, he  contends that the  district court

            erred in basing  the enhanced sentence  on convictions as  to

            which he had  had his  civil rights restored  pursuant to  18

            U.S.C.   921(a)(20) (a "conviction . . . for which a person .

            . . has had civil rights  restored shall not be considered  a

            conviction").   We  reject  this argument  for the  following

            reasons.


                                
            ____________________

            2.  The  government could  have filed  an appeal  because the
            sentence is  lower than the one  to which it had  agreed.  18
            U.S.C.   3742(c)(2).   See, e.g., United States v.  Mukai, 26
                                   ___  ____  _____________     _____
            F.3d 953 (9th Cir. 1994)  (government appealed the refusal by
            the  district court  to  allow it  to  withdraw from  a  plea
            agreement when  the court imposed a sentence  lower than that
            contained in  the agreement); United States  v. Skidmore, 998
                                          _____________     ________
            F.2d 372  (6th Cir.  1993) (government appealed  the district
            court's  imposition  of  a   sentence  which  did  not  order
            forfeiture  as  the  parties  had specified).    Because  the
            government  does not pursue  an appeal, however,  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  a 15-year sentence.   "This is  precisely the

            type  of appeal which is  barred by 18  U.S.C.   3742(c)(1)."

            Prieto-Duran, 39 F.3d at 1120 (where a sentence is within the
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            plea agreement, no appeal  will lie even though the  sentence

            is an upward departure from the guideline range).

                      Second, the plea  agreement provided for  an upward

            departure  on the  ground that  defendant's  criminal history

            category under the Guidelines  did not adequately reflect the

            seriousness of his  past criminal conduct.   The parties thus

            agreed to an upward departure based on   4A1.3:

                      If  reliable  information indicates  that
                      the  criminal  history category  does not
                      adequately reflect the seriousness of the
                      defendant's past criminal conduct  or the
                      likelihood that the defendant will commit
                      other  crimes,  the  court  may  consider
                      imposing  a  sentence departing  from the
                      otherwise applicable guideline range.

            Such  information includes  "prior  sentence(s) not  used  in

            computing the criminal history category."    4A1.3(a).

                      Defendant's argument is  premised on the definition

            of  a conviction contained in   921(a)(20) and referred to in

            U.S.S.G.    2K2.1  (calculating  the base  offense level  for

            firearms violations).  The problem with this position is that


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              4A1.3 is  not limited  to "past convictions."   Rather,  it

            refers  to "past criminal  conduct."   Certainly, defendant's
                                       _______

            past convictions are evidence of criminal conduct.  Moreover,

            there  is  nothing  in  the  Guidelines  or  elsewhere  which

            indicates  that the  kind  of criminal  conduct  a court  may

            consider under    4A1.3 is  restricted in  the way  defendant

            suggests.   Thus,  the  district court  did  not err  in  the

            calculation of the upward departure defendant received.

                      Defendant's other claim is that the  district court

            failed to  state with sufficient specificity  the grounds for

            the upward departure  as required by 18 U.S.C.    3553(c)(2).

            We  disagree.    First,  the  plea  agreement  obligated  the

            district  court  to  enhance  defendant's  sentence  and  the

            agreement specified  the reason  for the upward  departure --

            defendant's  criminal  history  category did  not  adequately

            reflect  the seriousness of his  past criminal conduct or the

            likelihood that  he  would continue  to commit  crimes.   The

            district  court  not only  iterated  this  at 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  were other  criminal  charges  currently pending

            against  defendant.   We  believe that  this  is a  "reasoned

            justification" for  its decision and plainly  is adequate for

            appellate  review.  See United States v. Emery, 991 F.2d 907,
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            913 (1st Cir. 1993)  (the district court need not  explain in

            "mathematical or pseudo-mathematical  terms each  microscopic

            choice made in arriving at  the precise sentence").  Further,

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

            court  ordered an  upward departure.   See  United States  v.
                                                   ___  _____________

            Quinones, 26 F.3d 213, 219 (1st Cir.  1994) (we will uphold a
            ________

            departure  decision  where  "an  explanation  can  fairly  be

            implied from the record as a whole").

                      The judgment  of  the district  court is  summarily
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            affirmed.  See Local Rule 27.1.
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