UNITED STATES of America, Appellee, v. Andres MALAVE, Defendant-Appellant, 469 F. App'x 51

SUMMARY ORDER Defendant-appellant Andres Malave appeals a judgment of the District Court entered June 16, 2011 sentencing him to 188 months’ imprisonment after he pleaded guilty to one count of conspiracy to distribute oxycodone, in violation of 21 U.S.C. § 846. We assume the parties’ familiarity with the factual history and proceedings below. Briefly, in 2004, nearly six years before Malave was arrested in Vermont in this federal oxycodone case, local police observed him selling crack cocaine at a motel in Springfield, Massachusetts, and he was charged with trafficking more than 200 grams of cocaine.

In February 2006, on the second day of the jury trial in the case, Malave absconded, and the jury convicted him in absentia. Malave’s codefendant in the Massachusetts case was also convicted. Malave remained a fugitive until he was arrested in Vermont in May 2010 for conspiring to distribute oxycodone, a controlled substance. Because Massachusetts law appears to prohibit sentencing in ab-sentia, Mass. R.Crim. P. 18(a)(1), Malave has not been sentenced on the crack cocaine conviction.

Under Massachusetts law, a conviction for selling more than 200 grams of cocaine carries a mandatory minimum sentence of 15 years imprisonment. See Mass. Gen. L. Ch. 94C, § 32E(b)(4). On January 14, 2011, Malave pleaded guilty to a superseding information charging him with conspiring to distribute oxy-codone from around October 2009 to May 2010.

The Plea Agreement provided, in part, “that the Court may impose ... not more than/up to 20 years [ie., 240 months] of imprisonment, pursuant to 21 U.S.C. § 841(b)(1)(C).” The Presentence Report (“PSR”) recounted Malave’s criminal history, including his 2004 arrest and 2006 conviction in Massachusetts state court for trafficking cocaine. Had Malave been sentenced in the Massachusetts case, his conviction would have carried three criminal history points in Malave’s Guidelines calculation.

Because sentencing had not yet occurred in Massachusetts, however, under U.S.S.G. § 4A1.2(a)(4) the crack cocaine conviction carried only a single criminal history point, which, combined with other factors, placed Malave in Criminal History Category II. Pursuant to U.S.S.G. § 4A1.3, the Government moved for an upward departure to Criminal History Category III.

The District Court granted the Government’s motion for an upward criminal history departure, in part because Malave “would have been at criminal history category three had he not fled” Massachusetts and Criminal History Category III “more accurately reflected] the seriousness of his criminal record.” The District Court sentenced Malave to 188 months imprisonment — a sentence which also fell within the applicable guidelines range for Criminal History Category II, and which the District Court would have imposed based on the sentencing factors contained in 18 U.S.C. § 3553(

a) regardless of the upward departure. The District Court adopted the PSR factual findings, with certain exceptions not relevant here, in its written Statements of Reasons for Sentence. When a party properly objects to a sentencing error in the District Court, we review for harmless error under an “abuse of discretion” standard. See, e.g., United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (en banc); see also Sims v. Blot, 534 F.3d 117, 132 (2d Cir.2008) (explaining the term of art “abuse of discretion”). We review arguments not raised below for plain error. See, e.g., Puckett v.

United, States, 556 U.S. 129, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009); United, States v. Thomas, 274 F.3d 655, 667 (2d Cir.2001) (en banc). For the first time on appeal, Malave argues, inter alia, that because his Massachusetts conviction was in absentia, the District Court should not have used that conviction as a basis for an upward criminal history departure.

Because this argument is raised for the first time on appeal, we review for plain error, and will affirm unless the District Court’s consideration of Malave’s prior conviction was an obvious error that has prejudiced Malave’s rights and seriously affected the fairness of the proceeding. See, e.g., United States v. Keigue, 318 F.3d 437, 441-42 (2d Cir.2003). We hold that it was not error, plain or otherwise, to consider the prior unsen-tenced conviction as a basis for an upward departure.

We have repeatedly recognized the propriety of upward criminal history departures based on unsentenced prior state court convictions. See, e.g., United States v. Keats, 937 F.2d 58, 65-67 (2d Cir.1991); United States v. Sturgis, 869 F.2d 54, 56-57 (2d Cir.1989); see also United, States v. Stevens, 985 F.2d 1175, 1187 (2d Cir.1993) (“[I]f the federal court does not depart to take account of the unsentenced state crimes, there is no assurance that the entire range of the defendant’s pertinent history will be considered in either proceeding.”).

We have also repeatedly refused to disturb in absentia convictions in which the defendant decided not to attend the trial. See, e.g., Cuoco v. United States, 208 F.3d 27, 29-30 (2d Cir.2000); United States v. Bravo, 10 F.3d 79, 83-85 (2d Cir.1993); United States v. Matista, 932 F.2d 1055, 1057-58 (2d Cir.1991); United, States v. Sanchez, 790 F.2d 245, 249-50 (2d Cir.1986).

Under our precedents, a sentencing court should be permitted to rely on an unsentenced state court conviction in absentia as a basis for an upward departure, particularly where, as here, the defendant caused his own absence by fleeing during trial and the reliability of his state conviction has not been substantively challenged. CONCLUSION We have considered all of Malave’s arguments on appeal and find them to be without merit. For the reasons stated above, the June 16, 2011 judgment of the District Court is AFFIRMED. .

The District Court stated that it “would have imposed the same sentence ... in light of [Malave’s] history and in light of who he is and how serious this is” even “if the guidelines called for something more than 188 months,” and observed that "if [it] had not departed upward,” the sentence imposed “falls within the earlier [Category II] range.”