United States v. Jones

United States Court of Appeals
For the First Circuit

No. 04-1606

UNITED STATES,

Appellee,

v.

KHARY JONES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Lynch, Circuit Judge,

Campbell and Stahl, Senior Circuit Judges.

Mark W. Shea, with whom Shea, LaRocque & Wood LLP was on
brief, for appellant.
Cynthia A. Young, Assistant U.S. Attorney, with whom Michael
J. Sullivan, United States Attorney, was on brief, for appellee.

December 19, 2005
 CAMPBELL, Senior Circuit Judge. Appellant-defendant

Khary Jones appeals from his conviction and sentence in the United

States District Court for the District of Massachusetts. Jones

entered a conditional guilty plea to one count of carjacking, in

violation of 18 U.S.C. § 2119, and one count of using a firearm

during and in relation to a crime of violence, in violation of 18

U.S.C. § 924(c). On appeal, Jones makes two arguments: first,

that the district court erred in denying his motion to suppress

certain evidence, and second, that his case should be remanded for

resentencing in the district court pursuant to United States v.

Booker, 125 S. Ct. 738 (2005). We now affirm the district court's

judgment and sentence.

I. Background

The facts of the case, largely undisputed, are set out in

United States v. Jones, 261 F. Supp. 2d 40 (D. Mass. 2003). The

most relevant facts are as follows:

On the cold and rainy night of March 19, 2002, at about

4:00 a.m., Boston Police Officers Christopher Broderick and Richard

Moriarty were patrolling in their cruiser in Boston's South End.

In the weeks prior to this night, there had been an abnormally

large number of armed robberies and car break-ins in the area. The

two officers had not received any reports of a specific crime that

evening. As they drove toward Appleton Street, they saw on their

left two men running nearly side-by-side along Appleton and across

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Clarendon. The men were wearing sweatshirts with hoods drawn

tightly around their heads and what initially appeared to the

officers to be white cotton gloves. The officers were unsure of

what the men were doing but considered it to be of an "unlawful

design." They sped up the cruiser and turned right onto Appleton

Street, where Moriarty got out of the car and approached one of the

hooded men. Moriarty told the man, later identified as the

defendant, to stop, which Jones did immediately, throwing his hands

up in the air. At that point, Moriarty observed that Jones' gloves

were of white latex. Asked why he wore them, Jones said his hands

were cold. Asked if he had any weapons on him, Jones said that he

had a knife, which Moriarty confiscated.

Meanwhile, Broderick drove further down Appleton Street,

parked, and got out of the cruiser. The second hooded man, later

identified as Samuel Whiteside, had continued to run down the

sidewalk. He turned left between two cars, right onto the

sidewalk, and ran until he was under a lit lamppost, where he bent

down so that Broderick could see only the top of his head.

Whiteside then straightened into full view and continued to run

down the sidewalk as Broderick chased him and asked him several

times to stop. At this point, Broderick saw a third man, later

identified as Darrell Weaver, walking on the sidewalk in the same

direction that Jones and Whiteside had been running. While this

was Broderick's first view of Weaver, Broderick testified that his

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partner, Moriarty, had told him he saw Weaver when the cruiser

first turned onto Appleton Street. Moriarty was unable to testify

at the suppression hearing because he was serving in Iraq. The

district judge found that Moriarty saw Weaver before the officers

got out of the cruiser and that Whiteside and Jones appeared to be

chasing Weaver.

After Broderick saw Weaver walking ahead on the sidewalk,

Whiteside ran towards Weaver but slowed to a walk as he approached

him. Broderick caught up to the two men, who sat down on the steps

of 84 Appleton Street. When Broderick asked what they were doing,

Whiteside replied that he was "just walking with my boy." Weaver

looked back and forth between Whiteside and Broderick and appeared

confused. Broderick took both men back to the cruiser and

questioned them individually while Moriarty talked to Jones.

The officers concluded that Weaver was not with Whiteside

and Jones and let him go. Broderick asked Whiteside why he was

wearing a latex glove, and Whiteside responded that he was wearing

one glove because a cut on his hand had become infected. Moriarty

then walked back in the direction in which he had seen Whiteside

run and found, where Broderick had seen Whiteside pause and bend

down earlier, a .32 caliber semi-automatic handgun with a chambered

live round and a one-dollar bill sitting on top of a large white

trash bag on the sidewalk. The gun was still warm and dry.

Moriarty then signaled to Broderick that Jones and Whiteside should

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be handcuffed. The officers asked the two men if they had a

license to carry a firearm, and neither man indicated he did.

The officers then arrested Jones and Whiteside and took

them to the jail. A booking officer booked the two men, filled out

a prisoner booking form which listed Jones' property, including a

set of keys, and took booking photos. The arrest booking form

indicated that the two men were arrested for "intent to rob while

armed." Later, the state initially charged Jones with possession

of a firearm without a license, attempted armed robbery, and a

moving violation.

The evening before Jones was arrested, on March 18, 2002

at about 12:15 a.m., a seemingly unrelated incident had occurred.

Toni Harrison and Ramona Powell were forced out of a car at

gunpoint by a young African-American man with braided hair. The

two women yelled for the driver of the car, Thomas Edwards, who was

across the street, and he ran towards the car as it drove away,

getting a side view of the suspect.

On March 23, 2002, Harrison, Edwards, and Edwards' mother

Hilda, the owner of the car, went to the police station to review

photographs with Boston Police Detective Paul MacIsaac. MacIsaac

first spoke to Harrison and gathered a description of the suspect

in order to narrow the pool of suspects displayed on the police

department's computerized identification imaging system. The

result was seventy-eight young African-American men with braided

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hair. Harrison viewed all the photos and rejected all of them.

MacIsaac then changed the search criteria to search for "afro"

instead of "braids." There were ninety-one matches, and Harrison

rejected the first seventy-nine. At the sight of the eightieth

photo, however, she jumped back and said, "I think that's him. I

think that's him," and began to cry. She told MacIsaac that she

was eighty-five percent sure it was the suspect.

On March 25, 2002, MacIsaac printed out the photo

Harrison had identified, a 1998 booking photo of Khary Jones. A

criminal records check revealed a more recent photo of Jones from

his March 19, 2002 arrest. Using the computer system, MacIsaac

then created a nine-photo array, including the March 19 photo.

Harrison quickly identified Jones in the new photo array. Edwards,

who had had a side view of the suspect, was unable to identify

Jones and instead picked another photo. Powell "went right to"

Jones' picture and said "that's him."

Based on the identifications by Harrison and Powell,

MacIsaac obtained and executed a search warrant for Jones relative

to the carjacking. He told Moriarty to look in the area of Jones'

March 19 arrest for the stolen car. The car was found a couple of

blocks away from Appleton and Clarendon Streets. MacIsaac examined

Jones' booking sheet, which listed "a key" among his property.

MacIsaac obtained a search warrant, executed it, and seized a set

of keys, including Edwards' car key.

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 Indicted on one count of carjacking and one count of

possessing a firearm during and in relation to a crime of violence

in connection with the March 18, 2002 carjacking, Jones moved to

suppress any and all evidence seized from him and/or his possession

as a result of the warrantless stop and arrest on March 19, 2002

and the subsequent warrant-based search of his property in jail on

April 6, 2002. Jones argued that the officers had not had

reasonable suspicion to stop him and Whiteside, nor had they had

probable cause to arrest Jones after the discovery of the gun on

top of the garbage bag. The district court denied the motion to

suppress, finding that the officers had had reasonable suspicion to

stop Jones, but assuming arguendo that the stop was illegal, the

discovery of the evidence was sufficiently attenuated from the stop

to dissipate the taint. Alternatively, the court observed, the

independent source doctrine provided a separate basis for the

seizure of the keys because MacIsaac, separate from Broderick and

Moriarty, had learned the potential significance of the keys during

his own investigation.

After the denial of the motion to suppress, Jones entered

a conditional guilty plea and was sentenced on April 20, 2004. The

district court sentenced Jones to consecutive terms of 30 months'

imprisonment on Count 1 and 84 months' imprisonment, the mandatory

minimum, on Count 2. This appeal followed.

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 II. Discussion

A. The Motion to Suppress

On appeal, Jones argues that on March 19, 2002, the

police officers had neither reasonable suspicion to stop him and

Whiteside nor probable cause to arrest them. Further, he argues,

MacIsaac's discovery of the keys was not sufficiently removed from

the illegal arrest to dissipate the taint, nor was it an

independent discovery. Because we find that the initial stop and

subsequent arrest were both legal, we do not reach the issues of

dissipation of the taint or independent discovery. As Jones

himself recognized in his brief, if the arrest was legal, the

search of his possessions at the jail was constitutional. We

affirm the defendant's conviction.

In reviewing a denial of a motion to suppress, we review

questions of law de novo and factual findings for clear error.

United States v. Khounsavanh, 113 F.3d 279, 282 (1st Cir. 1997).

1. Disputed Finding of Fact

The only factual finding by the district court that Jones

seems to contest is that Moriarty had seen from his cruiser the two

men chasing Weaver down the street. "A clear error exists only if,

after considering all of the evidence, we are left with a definite

and firm conviction that a mistake has been made." United States

v. McCarthy, 77 F.3d 522, 529 (1st Cir.), cert. denied, 519 U.S.

991 (1996). "'[W]here there is more than one plausible view of the

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circumstances, the...court's choice among supportable alternatives

cannot be clearly erroneous.'" United States v. Tejada-Beltran, 50

F.3d 105, 110 (1st Cir. 1995) (quoting United States v. Ruiz, 905

F.2d 499, 508 (1st Cir. 1990)). The district court's finding that

Moriarty, while still in the car, saw Weaver being chased by Jones

and Whiteside is supported by Broderick's hearsay testimony that

Moriarty had told him he had seen Weaver ahead of the two men in

the direction in which they were running when the cruiser first

turned onto Appleton Street. Because that testimony had been given

at a suppression hearing, where the Federal Rules of Evidence do

not apply in all their rigor, the court overruled the defendant's

hearsay objection, and no appeal is specifically made from that

ruling, although Jones insists that Weaver was seen only later, by

Broderick, after the cruiser stopped and the officers split up.

United States v. Schaefer, 87 F.3d 562, 570 (1st Cir. 1996); see

also United States v. Bunnell, 280 F.3d 46, 49 (1st Cir. 2002). In

any event, the court's finding based on Broderick's testimony of

what Moriarty told him is not clearly erroneous.

2. Reasonable Suspicion

Police officers may conduct a brief investigatory stop of

a suspect if they have reasonable suspicion, based on articulable

facts, that a crime is about to be or has been committed. Terry v.

Ohio, 392 U.S. 1, 30 (1968); United States v. Golab, 325 F.3d 63,

66 (1st Cir. 2003). Determining whether a reasonable suspicion

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exists requires an objective inquiry. Bolton v. Taylor, 367 F.3d

5, 7 (1st Cir. 2004). An "inchoate and unparticularized suspicion

or 'hunch'" of criminal activity is insufficient. Terry, 392 U.S.

at 27. Reasonable suspicion is evaluated in the context of the

totality of the circumstances and demands a "practical, commonsense

approach." United States v. Sowers, 136 F.3d 24, 28 (1st Cir.

1998).

We must determine whether the officers' actions in

stopping Jones, after seeing him and his companion running down the

street, were justified at their inception and whether the actions

taken were "reasonably responsive to the circumstances justifying

the stop in the first place as augmented by information gleaned by

the officers during the stop." United States v. Maguire, 359 F.3d

71, 76 (1st Cir. 2004) (internal quotation omitted). An officer

may draw on his "own experience and specialized training to make

inferences from and deductions about the cumulative information .

. . that might well elude an untrained person." United States v.

Arvizu, 534 U.S. 266, 273 (2002) (citations and internal quotation

omitted).

We hold the stop was justified. Broderick and Moriarty

saw two men sprinting down Appleton Street on a dark, rainy night

at 4:00 a.m. wearing hooded sweatshirts tightly wound around their

heads and wearing light, white gloves of a type that would seem

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inappropriate as protection against the cold weather.1 There had

been an abnormal number of robberies and break-ins around the

neighborhood. Moriarty spied from the cruiser a third man, Weaver,

walking ahead of the two men in the same direction in which they

were sprinting. Jones argues that it was natural for the two men,

on a rainy night, to be wearing hoods and to be sprinting in order

to escape the rain. He further notes that "While [reports of crime

in the area] may put officers on their guard, they cannot alone

justify a stop. Were the law otherwise, any person who happened to

wander into a high-crime area late at night, in the immediate

aftermath of a serious crime, could be detained." United States v.

Woodrum, 202 F.3d 1, 7 (1st Cir. 2000) (citation omitted). But

reports of crime in the area was not the sole fact here warranting

suspicion of criminal activity. There were other facts that, taken

in context, were suspicious. The wearing of hooded sweatshirts

tightly wrapped around their heads, while conceivably protecting

against the weather, also suggested an intent to disguise the two

men's identities. That they wore gloves of a type less suited to

keeping out the cold than concealing fingerprints pointed towards

1
Officer Broderick described the gloves as follows when
questioned by the government: "Q: Now these particular gloves--and
were they unusual at all to you? A: Yes. Q: Why were they
unusual? A: To me winter gloves are, they're big, puffy gloves
that keep your hands warm. They're not form-fitting, tight gloves
that don't look like they provide warmth. Q: And what did these
gloves look like? A: The tight, form-fitting gloves that wouldn't
provide warmth. Like I said, that we use for funeral details."

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a criminal design. The men were sprinting, and given the third

person walking ahead, might have been planning to catch up to and

rob him. It was dark; the time and conditions favored the

commission without detection of crimes like street robbery, car

theft, burglary and the like. Taking these factors all together,

the totality of the circumstances created an articulable,

reasonable suspicion of criminal activity, and thus the stopping of

Jones and his companion was within the officers' authority.

3. Probable Cause to Arrest

Even if a brief investigatory stop were legitimate, Jones

argues that the officers lacked probable cause to arrest him after

Moriarty had discovered the gun on top of the trash bag. "Probable

cause exists when police officers, relying on reasonably

trustworthy facts and circumstances, have information upon which a

reasonably prudent person would believe the suspect had committed

or was committing a crime." United States v. Young, 105 F.3d 1, 6

(1st Cir. 1997). The inquiry into probable cause focuses on what

the officer knew at the time of the arrest, United States v. Brown,

169 F.3d 89, 91 (1st Cir. 1999), and should evaluate the totality

of the circumstances. United States v. Reyes, 225 F.3d 71, 75 (1st

Cir. 2000). As the Supreme Court has recently reiterated, however,

the probable cause inquiry is not necessarily based upon the

offense actually invoked by the arresting officer but upon whether

the facts known at the time of the arrest objectively provided

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probable cause to arrest. Devenpeck v. Alford, 125 S.Ct. 588, 594

(2004). Thus it is irrelevant that the booking officer cited Jones

for "intent to rob while armed." If, on the facts known to the

arresting officers, there was probable cause to believe he was

committing another crime, the arrest was valid.

The government argues that the police officers had enough

information at the time of the arrest to have probable cause to

believe that Jones as well as Whiteside knowingly possessed a

firearm without a license, in violation of state law, to wit M.G.L.

c. 269, § 10. Jones responds, however, that it was his companion,

Whiteside, who possessed the gun. Officer Moriarty found the

discarded weapon in the vicinity where Broderick had earlier seen

Whiteside stop and bend down. Jones himself had had no firearm

when earlier stopped, nor did he advance down the street to the

place where the gun was eventually recovered. Without evidence he

actively possessed the gun after the officers arrived on the scene,

Jones contends the police lacked probable cause to arrest him for

possessing it without a license.

But while Jones did not actually possess the gun at the

time the officers apprehended him, the surrounding circumstances

afforded probable cause to believe he had constructive possession

of it. This was enough to violate the Massachusetts illegal

possession statute. See, e.g., Commonwealth v. Sann Than, 59 Mass.

App. Ct. 410, 413, 796 N.E.2d 419, 422 (2003) (instructions on

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constructive possession in a charge under M.G.L. c. 269, § 10).

Cf. Commonwealth v. Moore, 54 Mass. App. Ct. 334, 343, 765 N.E.2d

268, 275 (2002) (related statute, M.G.L. c. 269, § 11C, makes no

distinction between constructive and actual possession for purposes

of presumption that possession of firearm with obliterated serial

number is prima facie evidence of violation of the section). Under

Massachusetts law, constructive possession implies "knowledge

coupled with the ability and intention to exercise dominion and

control." Commonwealth v. Garcia, 409 Mass. 675, 686, 569 N.E. 2d

385, 392 (1991) (internal quotations omitted). Mere presence at

the scene of criminal activity is not sufficient. United States v.

Pardo, 636 F.2d 535, 549 (D.C. Cir. 1980). Close proximity to the

firearm, however, so as to be able "to pick it up at any time,"

suffices to establish the power (or "ability") component. United

States v. McLean, 409 F.3d 492, 504 (1st Cir. 2003).

In the present case, Whiteside's possession of a live

gun, together with the many other facts implying that Jones and

Whiteside when stopped were engaged together in joint criminal

activity, provided probable cause to infer Jones' constructive

ownership of the live weapon. The two men were seen by the

officers in one another's company racing down the street, under

circumstances suggesting an intent to rob a man seen walking ahead.

Both were muffled in their hooded sweatshirts; Jones was found to

be wearing latex gloves, while Whiteside wore one latex glove.

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Latex gloves offer little if any protection against the weather.

They most obviously would serve the function of preventing

fingerprints from being left on items like the gun itself or other

objects encountered while engaged in criminal activity. Wearing

such gloves was thus a gesture suggesting an intention to exercise

dominion and control over the gun as well as to engage in other

prospective criminal conduct. The fact that Jones wore two gloves

and Whiteside only one suggests that if the gun were to be used, it

would be passed to Jones to handle it. When the police cruiser

stopped and apprehended Jones, Whiteside kept running and attempted

to dispose of the gun for which neither man had a license. The

totality of these circumstances gave rise to a reasonable inference

that the two men were partners in crime, and that the firearm, with

its chambered round, was integral to their joint venture.2

We do not imply that the above evidence would necessarily

suffice to sustain a finding that Jones was guilty beyond a

reasonable doubt of the gun possession charge. Probable cause,

however, does not require "evidence sufficient to convict the

individual, but merely enough to warrant a reasonable belief that

2
Objectively viewed, these same facts might have also provided
probable cause to arrest the two men for attempted armed assault
with intent to rob, i.e., the "intent to rob while armed" offense
for which they were booked following arrest. While later
investigation appears to have led to a decision not to prosecute
Jones for attempting to rob Weaver, the facts at the time of the
arrest were not inconsistent with this hypothesis. We do not
decide this question as the government did not pursue this theory
on appeal.

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he was engaging in criminal activity." United States v. Link, 238

F.3d 106, 110 (1st Cir. 2001) (citation omitted). Here, the gun,

with a live round in the chamber, was actively possessed by one of

the two closely associated men; there was compelling evidence, most

notably the latex gloves, as well as the firearm itself, that both

men had the intention to use the weapon in their joint criminal

enterprise; and both men acknowledged to the officers that they

were without licenses to carry a gun. In the circumstances, we

think it was objectively reasonable to infer that both men knew

about the gun. It was also reasonable to infer -- the two men

being nearly side-by-side when first seen running down the street

-- that the gun was readily transferable from one to the other,

providing Jones with the ability to possess it, and that each

intended to be able to use the weapon as needed. That Whiteside

may have been carrying the weapon at the time the officers

intervened does not rule out Jones' constructive possession:

"possession can be joint." See McLean, 409 F.3d at 504. While

Whiteside appears to have had actual possession when the officers

came on the scene, the surrounding circumstances reasonably implied

probable cause to attribute constructive possession to his

companion, Jones.

4. Attenuation and Independent Means

As noted above, because we find that the police officers

had reasonable suspicion to stop Jones and probable cause to arrest

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him, we do not reach the alternate ground of the district court

that, even if the stop and arrest had been illegal, the discovery

of the evidence was legitimate because of dissipation of the taint

or the independent discovery doctrine.

B. Booker Claim

Prior to his sentencing hearing, Jones moved for a

downward departure on the grounds of diminished mental capacity

pursuant to U.S.S.G. § 5K2.13 and extraordinary mental and

emotional condition pursuant to U.S.S.G. § 5H1.3.

To support his claim of diminished mental capacity, Jones

submitted a brief family history and the expert testimony of a

forensic psychologist, Dr. Eric Mart, who concluded that Jones was

mildly retarded and had "problems with attention and executive

functioning...which are areas of deficiency above and beyond his

generally low IQ."

Section 5H1.3 provides that "[m]ental and emotional

conditions are not ordinarily relevant in determining whether a

sentence should be outside the applicable guideline range, except

as provided in [§ 5K2.13]." § 5K2.13 provides that:

A downward departure may be warranted if (1) the
defendant committed the offense while suffering from a
significantly reduced mental capacity and (2) the
significantly reduced mental capacity contributed
substantially to the commission of the offense.
Similarly, if a departure is warranted under this policy
statement, the extent of the departure should reflect the
extent to which the reduced mental capacity contributed
to the commission of the offense.

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 However, the court may not depart below the applicable
guideline range if (1) the significantly reduced mental
capacity was caused by the voluntary use of drugs or
other intoxicants; (2) the facts and circumstances of the
defendant's offense indicate a need to protect the public
because the offense involved actual violence or a serious
threat of violence; (3) the defendant's criminal history
indicates a need to incarcerate the defendant to protect
the public; or (4) the defendant has been convicted of an
offense under chapter 71, 109A, 110 or 117, of Title 18,
United States Code.

Noting the limitation "ordinarily" in § 5H1.3, Jones argued that

his was an extraordinary case warranting departure even if it did

not fit the § 5K2.13 exception because of his "significant

intellectual and information processing deficiencies" and because

his mental condition was "outside the norm." The government

opposed the motion on the grounds that a § 5K2.13 departure was

unavailable since Jones had committed a crime of violence.

Moreover, the government argued, Jones' case was not so

extraordinary as to warrant the departure even if the "ordinarily"

language could be deemed to provide some degree of "wiggle room."

See United States v. Pullen, 89 F.3d 368, 370 (7th Cir. 1996).

The district court concluded that a departure under §

5K2.13 was not available because of the crime of violence.

Further, the court observed that while there is room for

disagreement over whether the "ordinarily" language in § 5H1.3

provides some latitude for departure, any deficits of the defendant

"would have to be of an order so exceptional or extraordinary as to

take the defendant out of the pool of defendants similarly situated

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who have equally compelling life stories and have faced equally

compelling difficulties. I just do not think that that is this

case." The court encouraged Jones to raise the issue on appeal.

Also at sentencing, Jones sought to have the court

disregard the two juvenile convictions in his record because the

sometimes unreliable criminal record-keeping CORI system was the

only basis for their inclusion. The court agreed and did not take

the juvenile convictions into account at sentencing, thus lowering

Jones' Criminal History Category from II to I.

On appeal, Jones concedes that he did not preserve in the

district court his potential Booker claim that the district court

would have given him a lower sentence had the Guidelines not been

mandatory. Therefore, this court reviews the sentencing decision

for (1) error that is (2) plain and that (3) affects substantial

rights and (4) seriously affects the fairness, integrity, or public

reputation of judicial proceedings. United States v. Gonzalez-

Mercado, 402 F.3d 294, 302 (1st Cir. 2005); United States v.

Antonakopoulos, 399 F.3d 68, 76 (1st Cir. 2005). "The Booker error

is that the defendant's Guidelines sentence was imposed under a

mandatory system." Id. at 75. The first two elements of the plain

error standard are satisfied where, as here, a defendant's sentence

was imposed by reference to a mandatory system of federal

sentencing guidelines. Id. at 77.

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 To meet the third requirement of the plain error test,

"ordinarily the defendant must point to circumstances creating a

reasonable probability that the district court would impose a

different sentence more favorable to the defendant under the new

'advisory Guidelines' Booker regime." Id. at 75. A defendant

cannot satisfy the third element by a "mere assertion that the

court might have given [him] a more favorable sentence." Id. at

80. Likewise, the fact that the district court sentenced Jones to

the low end of the applicable Guidelines range does not, by itself,

show a reasonable probability of a lesser sentence under the

advisory system. United States v. Kornegay, 410 F.3d 89, 99-100

(1st Cir. 2005).

A defendant must show, "either in the existing record or

by plausible proffer," that "there is reasonable indication that

the district judge might well have reached a different result under

advisory guidelines." United States v. Heldeman, 402 F.3d 220, 224

(1st Cir. 2005). If a district court made statements suggesting

that it would have been inclined to impose a lesser sentence but

was prevented from doing so by the mandatory nature of the

Guidelines, that indicates that there is a reasonable probability

that the defendant's sentence was affected by a Booker error.

Heldeman, 402 F.3d at 224; Antonakopoulos, 399 F.3d at 81.

Jones argues that the comments by the district court

judge at the sentencing hearing show that there is a reasonable

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probability that the district court would impose a different

sentence more favorable to the defendant. The government

disagrees. As both parties quote selectively from the district

court's remarks at the sentencing hearing, we set forth in toto the

court's comments regarding its decision not to depart downward:

Of course we are, in a sense, confined somewhat to the
margins of the case, given the fact that there is a
seven-year mandatory consecutive sentence which we all
agree simply has to be imposed under operation of law.

I think it is a difficult issue. As I read 5H1.3, the
intent of the Guidelines is to exclude consideration of
mental and emotional state unless by cross-reference it
is relevant to the consideration of another ground for
departure set out in Subpart 2 of k. And I think
everyone instantly went to exactly the right Policy
Statement in the Subpart, which is 5K2.13, which would be
the Guideline that one would look to for a departure, but
for the fact of actual violence and threat of violence in
the underlying crime.

Whether the general Policy Statement in H itself
establishes an independent ground for departure, I think
is one that reasonable jurists could disagree over,
although I defer to Judge Posner's reading of the word
"ordinarily" [Pullen, 89 F.3d at 370] as operating
independently of the cross-reference to K Subpart 2.

But if it is a basis for independent departure, while I
agree that Dr. Mart is an excellent witness, and I have
no reason to doubt anything he said in his assessment of
the defendant, and while I think the defendant has
genuine deficits, if H is a ground for a departure, they
would have to be of an order so exceptional or
extraordinary as to take the defendant out of the pool of
defendants similarly situated who have equally compelling
life stories and have faced equally compelling
difficulties.

I just do not think that that is this case. So I will
decline to depart under either 5K2.13 or 5H1.3.

The district judge then advised defense counsel that he

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 might on the appeal raise this 5H1.3 issue. I, during
the break, was looking desperately for any case in the
First Circuit, and I did not find one that discusses it
specifically, and opposed to mental health problems
generally. There are those cases that use the
extraordinary and exceptional language, but I did not see
any that address the precise issue that you were raising.

We interpret the above remarks as indicating the district

court's belief that even if it had had the discretion under § 5H1.3

to depart downward in an extraordinary case, it did not consider

Jones' case to be out of the ordinary, hence not rising to the

level of extraordinary cases for which departure would be

warranted. While the court's language cannot be said to foreclose

the possibility of a lesser sentence under advisory guidelines, it

in no way indicates there is a reasonable probability that it would

impose a lower sentence under advisory guidelines. The judge

showed commendable concern and thoughtfulness while pondering the

sentence, but we see little to suggest anything else. Jones argues

that § 5K1.2's prohibition against a departure prevented him from

having the judge consider mitigating evidence at this sentencing,

but the judge did consider the mitigating evidence presented by

defense counsel and heard the testimony of the psychologist. We

conclude that Jones has failed to demonstrate a reasonable

probability of a different sentence and thus decline to remand.

The defendant's conviction and sentence are affirmed.

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