United States Court of Appeals
For the First Circuit
No. 03-1067
UNITED STATES OF AMERICA,
Appellee,
v.
GERMAIN FLORENTINO,
Defendant, Appellant.
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before
Boudin, Chief Judge,
Torruella and Dyk,* Circuit Judges.
J. Thomas Kerner, by appointment of the court, on supplemental
brief for appellant.
Virginia M. Vander Jagt, Assistant United States Attorney,
Appeals Unit, and Michael J. Sullivan, United States Attorney, on
supplemental brief for appellee.
October 28, 2005
*
Of the Federal Circuit, sitting by designation.
Per Curiam. Germain Florentino pleaded guilty to drug
and immigration violations, and was found by the district court to
be a career offender, triggering a guideline sentencing range of
151 to 181 months. At sentencing, he argued that one of the prior
convictions which provided the basis for his career offender status
was improperly relied upon because it was the product of an unusual
two-tier trial system that has since been abolished in
Massachusetts; the district court disagreed and sentenced
Florentino to 151 months, the minimum permitted under the
guidelines, also rejecting a requested downward departure.
We affirmed the sentence in United States v. Florentino,
385 F.3d 60 (1st Cir. 2004), finding that Florentino's conviction
under the two-tier system, where he was convicted in the first tier
and lodged an "appeal" to the second tier which he later abandoned,
was properly counted as a prior conviction for the purposes of
U.S.S.G. § 4B1.1. Florentino petitioned the Supreme Court for
certiorari, which vacated our judgment and remanded in light of its
intervening decision in United States v. Booker, 125 S. Ct. 738
(2005). We invited supplemental briefing on the question whether
to remand to the district court for re-sentencing in light of
Booker.
Florentino's Booker claim is not preserved, despite his
claims to the contrary, and we review for plain error. United
States v. Antonakopolous, 399 F.3d 68, 76 (1st Cir. 2005). A
-2-
Booker error is preserved if the defendant argued to the district
court that the guidelines were unconstitutional or that his
sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000), or
Blakely v. Washington, 542 U.S. 296 (2004). Antonakopoulos, 399
F.3d at 76. Florentino made no such argument at his sentencing; he
did argue that it was not proper to use his prior conviction under
the two-tier system to classify him as a career offender, but his
grounds had nothing to do with the Sixth Amendment, Apprendi or
Blakely.1
Under the plain error test for a remand, the main
question is the likelihood that on remand a lower sentence might be
imposed, United States v. Heldeman, 402 F.3d 220, 224 (1st Cir.
2005); the burden of showing such a likelihood lies with the
defendant. Id. Florentino presents several bases that he claims
demonstrate the likelihood of a lower sentence on remand, meeting
the third criterion for plain error. None is persuasive.
Florentino first argues that his brother (also a
participant in the conspiracy to which Florentino pleaded guilty)
was found to be responsible for a far greater amount of drugs but
1
Florentino spends much of this portion of the brief arguing
that his contested conviction is not typical and thus should not
fall into the exception for "prior convictions" carved out of the
Apprendi line of cases. Almendarez-Torres v. United States, 523
U.S. 224 (1998). Our prior decision, finding that Florentino's
conviction from the two-tier system counted for the purposes of
federal sentencing, resolved the issue as to whether to count the
conviction. Florentino, 385 F.3d at 63-65.
-3-
received a lower sentence. This argument was made to and rejected
by the district judge. The disparity between these sentences is
easily attributable to the fact that Florentino was a career
offender and his brother was a first-time offender. Nor do we see
how it helps Florentino that the government, in opposing a
departure for him, urged in the alternative that he should
certainly not get a sentence lower than his brother.
Florentino also says that the district judge
misapprehended his argument about the use of the disputed
conviction and thought he was arguing that the conviction should
not be used at all. Florentino claims to have been arguing that
the conviction should have been used only as an upward adjustment
to his criminal history level. Even if his position was
misunderstood, which is far from clear, nothing indicates that
regarding the point to the district judge would likely lead to a
lower sentence.
Florentino next argues that the district judge sentenced
him at the lowest end of the applicable guidelines range, and that
at sentencing the judge stated, in choosing the lowest end of the
guidelines range, that Florentino's career offender status had
resulted in "a long sentence." A lowered sentence helps but does
not alone warrant a remand. United States v. Kornegay, 410 F.3d
89, 99-100 (1st Cir. 2005). Florentino also omits the district
judge's statement that "the defendant's criminal history scoring in
-4-
this case does not overstate the severity of his criminal
behavior."
Florentino says that his brother received a departure
because as a deportable alien he was held in harsher conditions
than usual. But this is not a consideration that was forbidden or
discouraged by the guidelines. Compare Heldeman, 402 F.3d at 224.
If the circumstance is true as to Florentino, it could have been
argued at the original sentencing. Even now Florentino makes only
the bare assertion that he was held in such conditions as a
deportable alien, offering no detail. This claim does not furnish
the "specific facts" needed to justify a remand. Kornegay, 410
F.3d at 100.
The sentence is affirmed.
-5-