Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-1541
UNITED STATES OF AMERICA,
Appellee,
v.
MATTHEW JONES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Selya, Circuit Judge,
Hug,* Senior Circuit Judge,
and Howard, Circuit Judge.
James R. Knudsen, by appointment of the court, for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Robert Clark Corrente, United States Attorney, was on brief,
for appellee.
April 26, 2006
*
Of the Ninth Circuit, sitting by designation.
Per Curiam. The path to this sentencing appeal began on
December 27, 2004, when defendant-appellant Matthew Jones entered
a guilty plea to a two-count indictment charging (i) possession of
a firearm as a convicted felon, see 18 U.S.C. § 922(g)(1), and (ii)
simple possession of over five grams of cocaine base, see 21 U.S.C.
§ 844(a). Certain key facts are undisputed. After a chase, police
found Jones on the ground, with his hands behind his head.
Concealed under nearby leaves was a pistol with the clip removed.
The police discovered the clip, which contained four rounds, in an
adjacent manhole and three more rounds in the same vicinity. A
search of Jones's person disclosed that he had over five grams of
crack cocaine in his pocket.
The presentence investigation report (PSI Report)
recommended a two-level reckless-endangerment enhancement, see USSG
§3C1.2, because Jones had fled from the arresting officer while
holding the pistol and, as he ran, had turned toward the officer
with the pistol in his hand. On Jones's objection, the probation
officer amended the PSI Report to delete the reckless-endangerment
enhancement. The government then filed a sentencing memorandum in
which it argued in favor of restoring the enhancement.
The district court convened the disposition hearing on
April 4, 2005. The PSI Report stated that there were no factors
warranting a departure from the guideline sentencing range (GSR),
and neither side questioned that conclusion. The government argued
-2-
successfully in favor of the reckless-endangerment enhancement.
With the inclusion of that enhancement, Jones's total offense level
was 27. The court placed him, without objection, in criminal
history category IV. This combination yielded a GSR of 100-125
months.
When the district court inquired why the government had
not sought some form of upward variation or adjustment based on the
fact that Jones had jumped bail and fled to Alabama after state
authorities had charged him with a crime in connection with the
same incident, the Assistant United States Attorney — not the same
individual who argued the case before us on the government's behalf
— responded that the possibility of such a variation or adjustment
had never occurred to him. The court then asked defense counsel
whether an upward variance would be appropriate in light of the
bail-jumping incident. Counsel objected to any consideration of
such a variance based on the absence of prior notice that the court
might embrace this option. The government agreed with the defense
that the lack of prior notice prevented immediate consideration of
the issue. The court overruled the prior notice objection, citing
its discretion under the advisory guidelines. See United States v.
Booker, 543 U.S. 220, 233 (2005).
The district court thereafter suggested, for the first
time, that it might run the two components of the sentence
consecutively. As with the possibility of an upward variance based
-3-
on the bail-jumping incident, this sentence-lengthening possibility
had neither been discussed in the PSI Report nor advanced by the
government in its pre-hearing memorandum. The defense again
objected on notice grounds.
In due course, the district court proceeded to impose
sentence. The statutory maximum for the gun count was ten years,
while the drug count carried a statutory mandatory minimum of five
years and a statutory maximum of twenty years. The court imposed
the maximum ten-year sentence on the gun count and the mandatory
minimum five-year sentence on the drug count. If run concurrently
the sentence would have been within the GSR for the crimes of
conviction, but running the terms consecutively resulted in an
aggregate period of incarceration that exceeded the top of the GSR
by fifty-five months. It seems clear that, in arriving at this
result, the court factored in some grounds that had not been
contemplated in either the PSI Report or the prosecution's pre-
hearing submissions.
Jones appeals his sentence. He challenges (i) the
propriety of the reckless-endangerment enhancement; (ii) the lack
of notice with respect to several grounds relied on by the court
and, particularly, with respect to the imposition of consecutive
terms of immurement; and (iii) the reasonableness of the overall
sentence.
-4-
This case comes to us in an odd posture. Jones argues —
and the government concedes — that the sentence should be vacated
and the case remanded for resentencing because, among other things,
the district court deviated from the GSR based on unexpected
grounds and without giving any advance notice. We are not bound,
of course, to accept the government's confession of error, see,
e.g., United States v. Sánchez-Berríos, 424 F.3d 65, 81 (1st Cir.
2005), but we choose to do so here.
Our rationale is multifaceted. First, because the
change-of-plea colloquy predated the Booker Court's watershed
decision but the sentencing itself post-dated that decision, the
applicable sentencing regime changed mid-stream (from mandatory
guidelines to advisory guidelines); hence, the case falls into a
peculiar time warp. Second, as Jones points out, the sentencing
transcript indicates that the district court mis-recollected what
it had told Jones at the change-of-plea hearing and may have acted
on that mis-recollection. Third, since the district court imposed
sentence in this case, we decided United States v. Jiménez-Beltre,
440 F.3d 514 (1st Cir. 2006), in which we clarified how sentencing
should proceed under the advisory guidelines. Because Jones's
objections were preserved and there is some question whether the
district court correctly anticipated the Jiménez-Beltre protocol,
it makes sense to eliminate any doubt and allow the court to act
with full knowledge of that protocol.
-5-
Last — but surely not least — the two legal points on
which this appeal ordinarily would turn — whether the running of
the two components of the sentence consecutively constituted a
departure rather than a variance and, if not, whether the advance
notice requirement of Burns v. United States, 501 U.S. 129, 131
(1991), and Fed. R. Crim. P. 32(h) should apply by analogy to
deviations from the advisory guidelines (as opposed to departures)
— are freighted with uncertainty.2 We are reluctant to decide so
nuanced a set of questions where, as here, the adversarial
relationship has been compromised. After all, both sides are
agreed that the sentence should be vacated and the case remanded
for resentencing, and no amici have filed briefs. We think that,
under these unusual circumstances, the course of prudence, in
fairness both to the parties and to the able district judge, is to
allow the court to make a fresh start and formulate the sentence
anew.
We need go no further. For the reasons alluded to above,
we honor the parties' joint request, vacate Jones's sentence, and
remand for resentencing. We take no view as to the reasonableness
2
For example, the circuits are divided on the issue of whether
prior notice is required before a sentencing court, operating under
advisory guidelines, may deviate from the GSR on a ground neither
argued by the government in its pre-sentencing memorandum nor
elaborated in the PSI Report. Compare, e.g., United States v. Long
Soldier, 431 F.3d 1120, 1122 (8th Cir. 2005) (holding that no such
prior notice is required), with, e.g., United States v. Dozier, ___
F.3d ___, ___ (10th Cir. 2006) [2006 WL 864877, at *2] (holding to
the contrary).
-6-
of the sentence previously imposed, the sustainability of any of
the lower court's sentencing determinations,3 or the contested
"prior notice" issue.
Vacated and remanded.
3
Jones invites us to pass upon the validity of the reckless-
endangerment enhancement before remanding to the district court.
We decline the invitation. It seems to us more efficient, in the
peculiar circumstances of this case, to afford the district court
as much flexibility as possible in refashioning the sentence. Cf.
United States v. Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir. 1989)
(en banc) (noting, in the context of a partial reversal of a
multicount conviction, that the district court is in the best
position to tailor an overall sentence suitable to the offense and
the offender).
-7-