United States Court of Appeals
For the First Circuit
No. 04-1277
UNITED STATES OF AMERICA,
Appellee,
v.
EDWARD R. MORIN, JR.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Bjorn Lange, Assistant Federal Public Defender, for appellant.
Mark E. Howard, Assistant United States Attorney, with whom
Thomas P. Colantuono, United States Attorney, was on brief, for
appellee.
April 8, 2005
PER CURIAM. The defendant, Edward R. Morin, Jr., pleaded
guilty to one count of distributing 190 mg of cocaine base under 21
U.S.C. § 841(a)(1). Because of two prior felony convictions, Morin
qualified as a career offender under USSG § 4B1.1. The district
court calculated a total offense level of 32, which, with Morin's
criminal history category of VI, yielded (after a three-level
downward adjustment for acceptance of responsibility) a sentencing
range of 151 to 188 months.
At sentencing, Morin protested that the amount of drugs
involved in his offense was so trivial as to take his case out of
the heartland of typical career-offender cases, and he was thus
entitled to a downward departure under 18 U.S.C. § 3553(b)(1) and
USSG § 5K2.0. The district court was sympathetic to Morin's
plight, saying that it would depart downward if it could.
Ultimately, however, it concluded that it lacked the authority to
do so in Morin's case. The court said, "In my judgment the
smallness, if you will, of the drug quantity involved in the
offense of conviction is not a basis for a downward departure in
this case. If I'm wrong about that, if that does provide a legal
basis for a departure downward, I would have departed." The court
then sentenced Morin to 151 months in prison, at the lowest end of
the available range.
This appeal followed. After the Supreme Court decided
United States v. Booker, 125 S. Ct. 738 (2005), we asked for
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supplemental briefing on whether Morin should be resentenced in
light of that decision. We now remand for resentencing.
Morin did not raise his claim of Booker error below, so
we review it for plain error. See United States v. Antonakopoulos,
399 F.3d 68, 76 (1st Cir. 2005). Morin must show (1) an error (2)
that was plain, (3) that affects substantial rights, and (4) that
seriously affects the fairness, integrity, or public reputation of
judicial proceedings. United States v. Olano, 507 U.S. 725, 732
(1993). Here, the error was plain. See Antonakopoulos, 399 F.3d
at 77. In Antonakopoulos, we said that a situation like Morin's
would present a strong argument for remand:
[T]he mandatory nature of the Guidelines has produced
particular results which led trial judges to express that
the sentences imposed were unjust, grossly unfair, or
disproportionate to the crime committed, and the judges
would otherwise have sentenced differently. Where the
district judge has said as much about a Guidelines
sentence, that is a powerful argument for remand. If the
resulting sentence after remand is itself unreasonable,
the government can appeal.
Id. at 81 (citations omitted); see also United States v. MacKinnon,
__ F.3d __, No. 03-2219, 2005 WL 605031 (1st Cir. Mar. 16, 2005)
(remanding under like circumstances). The district court's
comments justify such a remand in this case.
Even if we do remand, the government has asked us "to
provide an answer to the 'smallness' question so that re-sentencing
can be accomplished in a meaningful manner." We decline that
request. Morin could raise other arguments under advisory
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guidelines that were previously precluded. The district court may
decide to reduce Morin's sentence based on other grounds, and may
not need to address the "smallness" question at all. Prudence
dictates that we refrain from answering questions that may have
nothing to do with the ultimate resolution of this case.
Morin's sentence is VACATED; the case is REMANDED for
resentencing.
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