United States of America v. Anibal Orsini, a/k/a Ruben Guerrero, a/k/a Jay, a/k/a Jay South

United States Court of Appeals
For the First Circuit
No. 17-2042
UNITED STATES OF AMERICA,
Appellee,
v.
ANIBAL ORSINI, a/k/a Ruben Guerrero, a/k/a Jay, a/k/a Jay South,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Thompson, Circuit Judges.
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.
October 26, 2018

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SELYA, Circuit Judge. 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.

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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

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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
1 Of course, sustaining the appellant's identity-based
objections to additional convictions would have reduced the number
of criminal history points attributable to him and, thus, lowered
his criminal history score. See USSG §4A1.1. But any such revised
calculations would not have affected his criminal history
category. After all, once a district court classifies a defendant
as a career offender, the sentencing guidelines dictate the
defendant's placement in criminal history category VI, regardless
of his criminal history score. See id. §4B1.1(b). Thus, the
appellant's criminal history category would not have been affected
by the elimination of the additional convictions.

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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 not only of an increased drug
quantity but also of the proposed enhancements — revisions that
would have more than doubled the guideline sentencing range.
The record makes manifest that, by this time, the court
had indicated that it planned to classify the appellant as a career
offender and the appellant had affirmed his career offender status.
Consistent with this affirmation, the court repeatedly referred,
during the pre-sentence conference, to the parties' agreement with
respect to career offender status and to the court's intention to
sentence the appellant as a career offender. The appellant never
demurred. To cinch matters, his counsel explicitly stated: "I
should be clear on the record. Based on the current law . . . and

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based on his convictions as they currently stand he is a career
offender."
On October 16, 2017, the district court convened the
disposition hearing. Without objection, the prosecutor submitted
exhibits substantiating the predicate-offense convictions on which
the appellant's career offender designation hinged. The
prosecutor added that both sides "agree on the career offender
guideline range" and that the remaining factual objections to the
PSI Report need not be resolved. Defense counsel joined the
chorus, responding "[t]hat is correct, [y]our [h]onor." In
addition, the appellant personally agreed that he was a career
offender. Last but not least, the appellant's counsel
straightforwardly told the court — immediately prior to the
appellant's allocution — that "Mr. Orsini is clearly a career
offender."
The district court found the appellant to be a career
offender and imposed a bottom-of-the-range term of immurement (188
months). This timely appeal ensued.
II. ANALYSIS
In this venue, the appellant is represented by new
counsel. As framed, his appeal raises only a single issue.
Despite his earlier acknowledgement that he should be sentenced as
a career offender, the appellant assigns error to the district
court's treatment of him as such.

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Under the sentencing guidelines, career offender status
automatically results in a criminal history category of VI (the
highest category available). See USSG §4B1.1(b). A defendant is
subject to classification as a career offender if (1) he was at
least eighteen years old at the time he committed the offense of
conviction; (2) that offense was either a felony crime of violence
or a felony controlled substance offense; and (3) his conviction
followed "at least two prior felony convictions of either a crime
of violence or a controlled substance offense." Id. §4B1.1(a).
In the case at hand, the appellant plainly meets the age
requirement, and his offense of conviction plainly qualifies as a
felony controlled substance offense. However, he claims for the
first time on appeal that two of the three predicate convictions
denominated in the PSI Report — his 2002 Massachusetts drug-
trafficking conviction and his 2012 New Hampshire sale-of-
controlled-substance conviction — fail to qualify as career
offender predicates. This claim beckons us down the long and
winding path along which federal courts must use either a
categorical or modified categorical approach to compare a state
crime to its generic federal counterpart. See, e.g., Descamps v.
United States, 570 U.S. 254, 260-61 (2013); United States v.
Dávila-Félix, 667 F.3d 47, 55-56 (1st Cir. 2011).
Here, however, we need not set out on such a stroll.
The appellant's claim of error does not get out of the starting

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gate. The government submits that the claim was waived, and we
agree.
We have made it luminously clear that "[a] party waives
a right when he intentionally relinquishes or abandons it." United
States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002). As a
general rule, a waived claim is unreviewable and, thus, cannot be
revisited on appeal. See id. Though the effects of a waiver are
sometimes harsh, the costs are justified by the systemic benefits:
the rule of waiver is critically important to the orderly
administration of justice. Nor is waiver a quixotic procedural
trick: the waiver rule is grounded in principles of "fairness,
judicial economy, and practical wisdom." Nat'l Ass'n of Soc.
Workers v. Harwood, 69 F.3d 622, 627 (1st Cir. 1995).
Waivers allow trial courts to narrow the issues and
concentrate scarce judicial resources on genuinely contested
matters — and when a trial court makes a reasoned decision, it is
unfair to allow a party to subvert that decision by resurrecting
a waived claim. See United States v. Torres-Rosario, 658 F.3d
110, 116 (1st Cir. 2011) (characterizing waivers as "undertakings
[that] are critical in managing the business of courts"). Given
the importance of waivers in the fabric of litigation, it is not
surprising that appellate courts normally enforce waivers with
"near-religious fervor." Nat'l Ass'n of Soc. Workers, 69 F.3d at
627.

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It follows, we think, that when a party explicitly
affirms a fact in the district court, that party risks waiving
"both existing and yet-to-be-recognized rights." United States v.
Bauzó-Santiago, 867 F.3d 13, 24 (1st Cir. 2017) (quoting Torres-
Rosario, 658 F.3d at 116). For example, a defendant who "accepts
the probation department's configuration of the sentencing record
. . . can scarcely be heard to complain when the sentencing court
uses those facts in making its findings." United States v.
Turbides-Leonardo, 468 F.3d 34, 38 (1st Cir. 2006) (quoting United
States v. Morillo, 8 F.3d 864, 872-73 (1st Cir. 1993)). So, too,
"[a] party who identifies an issue, and then explicitly withdraws
it, has waived the issue" and cannot resurrect it on appeal.
Rodriguez, 311 F.3d at 437.
The doctrine of waiver fits this case like a glove. The
record makes pellucid that the appellant's career offender status
was referenced no fewer than ten times over the course of two
sentencing hearings. Throughout, the appellant's counsel
repeatedly and unequivocally affirmed that the appellant should be
sentenced as a career offender, and the appellant himself reprised
this affirmation. Nor does the record leave any room for doubt
that both the appellant and his counsel knew the significance of
the career offender provision in relation to his sentencing
exposure.

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Here, moreover, opting to affirm his career offender
status appears to have been a deliberate stratagem designed to
give the appellant a distinct tactical advantage. The appellant
agreed that he should be sentenced as a career offender and, in
return, the government agreed not to press either for an increased
drug quantity or for role-in-the-offense and firearms guideline
enhancements — items that had the potential, collectively, to boost
the top of the applicable guideline sentencing range from 235
months to 480 months. This quid pro quo exchange makes evident
that the appellant intentionally relinquished the claim that he
now seeks to resurrect. On this record, waiver is manifest. See
United States v. Eisom, 585 F.3d 552, 556 (1st Cir. 2009) (finding
defendant waived particular sentencing claim when he objected
below and then withdrew his objection); Rodriguez, 311 F.3d at 437
(similar); cf. Torres-Rosario, 658 F.3d at 116 (observing that
defendant's express affirmation of basis on which he was sentenced
ordinarily amounts to a waiver).
In an effort to blunt the force of this reasoning, the
appellant argues that his unresolved factual objections to the PSI
Report were sufficient to preserve the claim he now advances. This
argument is belied by his representation to the court below that
those objections impacted only his criminal history score and not
his career offender status. Indeed, when confirming to the
district court that the appellant was "a career offender," his

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counsel expressly stated that "the [criminal history] points .
. . don't matter." Given the lack of any fit between the preserved
objections and the waived claim of error that the appellant now
seeks to revivify, the appellant's argument fails.
The appellant has a fallback position. He suggests that
even if his late-blooming argument against career offender status
was waived, that waiver ought to be excused. This suggestion lacks
substance.
To be sure, the waiver rule may "admit[] of an occasional
exception" in extraordinary circumstances. Nat'l Ass'n of Soc.
Workers, 69 F.3d at 627. Such exceptions, though, are hen's-teeth
rare: they are granted, in the appellate court's discretion, only
sparingly, and when the "equities heavily preponderate in favor of
such a step." Id. In deciding whether an exception is warranted,
we may consider factors "such as whether the inadequately preserved
arguments are purely legal, are amenable to resolution without
additional factfinding, are susceptible to resolution without
causing undue prejudice, are highly convincing, are capable of
repetition, and implicate matters of significant public concern."
Sindi v. El-Moslimany, 896 F.3d 1, 28 (1st Cir. 2018). We likewise
may consider whether waiver of the claim below "yielded [a]
tactical advantage to the defendant[]." Nat'l Ass'n of Soc.
Workers, 69 F.3d at 628. So, too, we may consider whether an

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intervening change in the law may have a substantial bearing on
the equities. See Torres-Rosario, 658 F.3d at 115-16.
Viewed against this backdrop, there is good reason to
hold the appellant to the consequences of his waiver. His claim
is dubious; 2 it is focused on the idiosyncratic circumstances of
his own situation; it implicates no matters of significant public
concern; and it does not rest upon any intervening change in the
law. Moreover, waiving a challenge to his career offender status
provided the appellant with a substantial benefit at sentencing:
it deterred the government from its quest for a much more onerous
guideline sentencing range. Allowing the appellant to reverse his
field and belatedly attack his career offender designation would
unfairly prejudice the government. Where, as here, a party makes
a strategic choice to relinquish a known claim in exchange for a
perceived advantage and the trial court acts upon that waiver,
2 It is not at all clear that the district court was wrong to
classify each of the three enumerated convictions as predicate
controlled substance convictions under the career offender
provision. Even now, the appellant does not challenge one of the
predicates (the 2013 Massachusetts drug-distribution conviction),
and his challenge to the others is bereft of any controlling or
convincing authority in support of his position. His principal
plaint asks us to apply the analysis used in Harbin v. Sessions,
860 F.3d 58, 63-65 (2d Cir. 2017), to predicate-offense convictions
under Massachusetts and New Hampshire law, respectively. Harbin,
however, was decided before the appellant was sentenced and
embodies an analysis particularized to the structure of a New York
statute — a structure that is plainly distinct from that of the
Massachusetts and New Hampshire statutes upon which the
appellant's earlier convictions rest.

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appellate judges should be reluctant to allow the waiving party a
second bite at the cherry. Nothing in the record of this case
suffices to overcome that reluctance.
That ends this aspect of the matter. Concluding, as we
do, that the equities preponderate heavily in favor of enforcing
— not excusing — the waiver, we decline the appellant's invitation
to relieve him of the consequences of his own admissions.
III. CONCLUSION
We need go no further. Waived claims are unreviewable,
see Rodriguez, 311 F.3d at 437, and the glove, fitting, must be
worn. Accordingly, the appellant's sentence is
Affirmed.

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