United States Court of Appeals
For the First Circuit
No. 06-1749
UNITED STATES OF AMERICA,
Appellee,
v.
JENNIFER GODIN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Boudin, Chief Judge,
Cyr, Senior Circuit Judge,
and Howard, Circuit Judge.
Paul M. Glickman, by appointment of the court, with whom
Glickman Turley LLP was on brief for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.
June 13, 2007
BOUDIN, Chief Judge. In the early morning hours of March
7, 2005, Jennifer Godin entered the Super 8 Motel in Sanford,
Maine, put a gun on the counter of the front desk, and told the
clerk, "Give me everything in the drawer. Do what I say and you
won't get hurt." The clerk then handed Godin paper currency and
rolled coins, and Godin headed to the exit, saying, "If you tell
anybody, then I'm going to come back." In the course of this
threat, Godin apparently pointed the gun at the clerk.1
The clerk called the police and later identified Godin as
the robber. Sanford police arrested Godin at her home on March 9,
2005. They seized various items linking Godin to the crime,
including a revolver that matched the description of the gun used
in the robbery and papers from rolled coins. The two handguns
found in Godin's house were later identified as having been stolen.
Witnesses also indicated that Godin had admitted to having robbed
the motel on March 7.
Godin was charged with obstructing commerce by robbery,
18 U.S.C. § 1951(a) (2000), and with using and carrying a firearm--
including brandishing the weapon--during and in relation to the
robbery, 18 U.S.C. § 924(c)(1)(A)(ii). Godin pled guilty and was
thereafter sentenced under the Sentencing Guidelines (the 2005
1
The government described the brandishing in its version of
the facts tendered during the later Rule 11 hearing. Godin's
attorney conceded that the government could offer proof of the
allegations made in its version of events.
-2-
edition was used) to 262 months in prison. She now appeals from
her sentence. Our review is de novo as to purely legal issues and
more deferential as to fact-finding and other issues. See United
States v. Cao, 471 F.3d 1, 5 (1st Cir. 2006).
Godin's sentence comprised two elements: 178 months for
the robbery, followed by a mandatory term of 84 months for the
brandishing of a gun, required by statute to be served
consecutively, 18 U.S.C. § 924(c)(1)(A)(ii), (D)(ii). The combined
guideline sentence for the two offenses was greatly lengthened
because the district court determined that Godin was a "career
offender," defined as one whose current offense is "a crime of
violence or a controlled substance offense" and who has two prior
offenses falling in either category. U.S.S.G. § 4B1.1(a).
A career offender's sentence calculation is based on a
higher offense level and a criminal history category at the highest
level. U.S.S.G. § 4B1.1(b). Because Godin was so designated, her
offense level for the robbery, adjusted (as it was) for acceptance
of responsibility, would typically have been raised to 29 (rather
than 17, as it would have been without this designation) and her
criminal history category to VI (rather than IV). The resulting
guideline sentence would have been 151 to 188 months for the
robbery alone. U.S.S.G. ch. 5, pt. A.
However, because Godin was a career offender and was
convicted of violating 18 U.S.C. § 924(c), guideline section
-3-
4B1.1(c)(3)--which provides especially severe sentences in such
cases--applied; the result was a combined sentence range of 262 to
327 months. Refusing to depart downward, the district court
imposed the minimum--262 months--combined sentence, allocating 178
months to the robbery and the minimum 84 months to the firearm
charge.2
On this appeal, Godin says the question whether she
qualified as a career offender should have been determined by a
jury. The Supreme Court has so far declined to extend the sixth
amendment prohibition on judicial fact-finding that increases the
penalty for a crime beyond the statutory maximum to situations
where the question is whether the defendant has previously been
convicted of a crime.3 Godin says that under Shepard v. United
States, 544 U.S. 13 (2005), a jury is now required at least to
determine whether her prior burglaries were related or not.
The Supreme Court's basic concern has been with fact-
findings that increase the penalty for a crime beyond the statutory
maximum sentence. Because in this case the sentence imposed is
within the existing statutory maximum for each of the two crimes,
2
The 84 months for violating 18 U.S.C. § 924(c)(1)(A)(ii) was
the statutory minimum; for the robbery, 178 months was well within
the statutory maximum of 240 months, 18 U.S.C. § 1951(a).
3
See Apprendi v. New Jersey, 530 U.S. 466, 487-90 (2000);
Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998). This
court is committed to following Almendarez-Torres until it is
overruled. United States v. Ivery, 427 F.3d 69, 75 (1st Cir.
2005), cert. denied, 126 S. Ct. 1448 (2006).
-4-
whatever Shepard may entail has no effect here. See United States
v. Ngo, 406 F.3d 839, 843 n.1 (7th Cir. 2005); see also United
States v. Martins, 413 F.3d 139, 152 (1st Cir.), cert. denied, 126
S. Ct. 644 (2005).
The question remains whether the district judge's
guideline calculations were correct. Godin had a number of brushes
with the law before the motel robbery, but only two prior
convictions qualified as crimes of violence or drug offenses. Each
was a burglary of a different apartment in the same apartment
building--one on July 26, 2002, and the other six days later on
August 1, 2002. In both cases, Godin knew the victim, had some
grievance, kicked in the apartment door and stole various items; in
one of the cases, she also trashed the apartment.
Burglary is classified under the pertinent guideline as
a crime of violence, U.S.S.G. § 4B1.2(a)(2), so the two 2002
burglaries--together with the instant armed robbery of the motel--
supplied the necessary predicates for career offender status,
unless the two prior burglaries are counted as only one conviction.
The career offender guidelines, by cross-reference, treat the two
convictions as only one (if not separated by an intervening arrest)
where the offenses
(A) occurred on the same occasion, (B) were
part of a single common scheme or plan, or (C)
were consolidated for trial or sentencing.
-5-
U.S.S.G. § 4A1.2, cmt. 3.4
Subsection (A) did not apply to Godin's two burglaries.
This leaves subsections (B) and (C) for consideration. Subsection
(A)'s rationale is apparent--crimes committed on the same date are
arguably less reflective of "career" behavior than those separated
by an opportunity to reflect, see United States v. Elwell, 984 F.2d
1289, 1295 (1st Cir.), cert. denied, 508 U.S. 945 (1993)--but the
reasons for (B) and (C) have puzzled courts and led to some
divergence in interpretation. Why, one might ask, should two
separate crimes count for less because they were consolidated for
trial or sentencing or, worse still, part of a common scheme or
plan?
Probably the best explanation is that sometimes such
crimes may seem like one course of criminal conduct and that
consolidation and the scheme or plan category were regarded as
crude proxies for this characteristic, the (frequent) misfit being
acknowledged by an explicit warning in the commentary that their
application could result in undue leniency, correctable by an
upward departure. See U.S.S.G. § 4A1.2, cmt. 3. This "Rube
4
The section defining terms used in the career offender
guideline, U.S.S.G. § 4B1.2(c), makes it a condition of having "two
prior felony convictions" for violent or drug offense crimes that
each resulted in a sentence "counted separately" under U.S.S.G. §
4A1.1(a), (b) or (c); prior sentences "in related cases" count as
one for purposes of these subsections, U.S.S.G. § 4A1.2(a)(2); and
the limitation quoted in text is part of a comment defining
"related cases." U.S.S.G. § 4A1.2, cmt. 3.
-6-
Goldberg" gimmickry, Elwell, 984 F.2d at 1295, has not encouraged
an especially generous reading of subsections (B) and (C).
Our own cases insisting on an order of consolidation or
some other indicia of formal consolidation for (C) are
representative, see United States v. Bell, No. 06-1421, 2007 U.S.
App. LEXIS 10922, at *9-10 (1st Cir. May 9, 2007); Martins, 413
F.3d at 152; United States v. Correa, 114 F.3d 314, 317 (1st Cir.),
cert. denied, 522 U.S. 927 (1997), and Godin conceded in the
district court that her prior burglary convictions were not
formally consolidated. Thus it does not matter that she pled and
was sentenced for both crimes at the same time, nor whether Maine
has a mechanism for formal consolidation.
In the absence of an order of consolidation, relatedness
under subsection (C) might nonetheless be established by sufficient
indicia of formal consolidation. See Bell, 2007 U.S. App. LEXIS
10922, at *10. Here we have separate docket numbers and separate
Judgment and Commitment orders. The only indicia to the contrary
are the probation documents--which are not enough on their own.
Accord id. at *12.
The "single common scheme or plan" rubric of subsection
(B) raises a more difficult issue. The concept is vague and unlike
subsection (C) there is no formal test, such as a single indictment
or a formal order of consolidation. The circuit courts are
-7-
divided5 as to whether the meaning of the phrase in subsection (B)
is the same as the phrase "common scheme or plan" in section
1B1.3(a)(2), which attributes to the defendant being sentenced
"relevant conduct" including certain acts and omissions "that were
part of the same course of conduct or common scheme or plan as the
offense of conviction."
This matters only because the relevant conduct provision
has commentary that elaborates on the phrase, saying that a common
scheme or plan must have at least one common factor connecting the
two crimes, such as "common victims, common accomplices, common
purpose, or similar modus operandi." U.S.S.G. § 1B1.3, cmt. 9(A).
Godin says that in her case the modus operandi of the two
burglaries was similar; she also says that they involved the same
apartment building and that each was motivated by a desire for
revenge.
The district court, siding with the majority of the
circuits that have spoken, ruled that section 1B1.3 and its
commentary does not control the meaning of section 4A1.2's "single
common scheme or plan"; but the district court said that its
conclusion--that the two burglaries were not part of a single
5
Compare United States v. Berry, 212 F.3d 391, 393-95 (8th
Cir.), cert. denied, 531 U.S. 907 (2000), United States v. Brown,
209 F.3d 1020, 1024 n.9 (7th Cir. 2000), and United States v.
Beckett, 208 F.3d 140, 147 n.2 (3d Cir. 2000), with United States
v. LaBarbara, 129 F.3d 81, 86 (2d Cir. 1997), and United States v.
Mullens, 65 F.3d 1560, 1565 (11th Cir. 1995), cert. denied, 517
U.S. 1112 (1996).
-8-
common scheme or plan--would be the same even if some weight were
given the alleged similarity of modus operandi. There are
legitimate arguments for ignoring section 1B1.3, but either way the
underlying problem remains to give some sensible meaning to section
4A1.2.
We said in Elwell that--for reasons there explained in
detail--the "ordinary meaning" of the phrase "single common scheme
or plan" should be used. 984 F.2d at 1295. Under that standard,
it seems to us that to fall within section 4A1.2(a)(2), burglaries
of two different apartments committed by one actor several days
apart need something more than resemblance of mode or motive even
if that were relevant. No one would say that a judge who tried two
similar drug cases back to back did so pursuant to a common scheme
or plan.
A scheme or plan implies some kind of connective tissue
like an initial plan encompassing multiple acts or a sequence of
steps to a single end. See United States v. Joy, 192 F.3d 761, 771
(7th Cir. 1999), cert. denied, 530 U.S. 1250 (2000). Nothing like
that was present in this case. Perversely, as in Elwell, a party
to a conspiracy to rob banks may come out ahead under section
4A1.2(a)(2); but this is for the Sentencing Commission to fix, and
we will not cure the discrepancy by extending the protection of
subsection (B) to someone like Godin who is neither within its
-9-
language, and whose circumstances do not implicate any obvious
policy pointing toward a lower sentence.
Godin says that even if within the guideline range, the
sentence was unreasonably severe. Under United States v. Booker,
543 U.S. 220, 245-46, 259-60 (2005), the district judge can adopt
a non-guideline sentence where this is consistent with the broad
sentencing factors listed in the statute, 18 U.S.C. § 3553(a)
(2000); and, where the factors are properly understood, our review
of the overall judgment by the district judge is deferential.
United States v. Jiminez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006)
(en banc), cert. denied, 127 S. Ct. 928 (2007).
Godin's claim for a lower sentence is not frivolous. She
is now 30 years of age and, under the sentence imposed, will serve
262 months in jail for a robbery that netted a few hundred dollars.
Her sentences for the prior burglaries were 90 days and, although
both are by statute crimes of violence because of their potential
for violence, no physical harm to other individuals occurred.
Indeed, it appears that no one else was present in either of the
earlier episodes of burglary.
Two other considerations favoring leniency are stressed
in Godin's brief. The first is that Godin had a miserable
childhood and, in the district judge's words, a "horrendous life."
Godin was chronically abused as a child and sexually assaulted both
as a child and adult. Two of her brothers committed suicide, one
-10-
of which she witnessed at a young age. She is divorced,
voluntarily surrendered parental rights to two of her children, and
had her other two children removed from her care. One of her
children was apparently sexually abused while not in Godin's
custody.
The other fact is that Godin suffers from mental illness,
including depression, suicidal tendencies and schizo-affective
disorder (a catch-all that can embrace symptoms both of
schizophrenia and of manic-depressive psychosis). She has been
hospitalized for mental illness on several occasions. Her plight
is complicated by a history of trauma and abuse, by an apparent
inability to plan effectively for her future, and by considerable
drug use, primarily but not exclusively marijuana.
Yet, where there is a "plausible explanation and a
defensible overall result," we normally respect the judgment of the
lower court as to whether to go outside the guidelines. Jiminez-
Beltre, 440 F.3d at 519. Here, the district court acknowledged
that Godin's life had been awful and that she had eventually
cooperated with the authorities in disclosing the circumstances
that led to multiple weapons being found in the apartment (but not
quickly enough to provide substantial assistance under the
guidelines).
Recognizing that Godin had suffered from mental
impairments, the district judge nevertheless said that there was no
-11-
evidence that she was suffering from diminished capacity at the
time of the burglary and thus no basis for a downward departure
under the guidelines on this account, see U.S.S.G. § 5K2.13, and
that Godin's mental and emotional condition--a discouraged basis
for departure--was not so exceptional as to otherwise warrant a
departure, see U.S.S.G. §§ 5H1.3, 5K2.0(a)(4). Such a refusal to
depart is not ordinarily reviewable save for a mistake of law.
United States v. Melendez-Torres, 420 F.3d 45, 50-51 (1st Cir.
2005).
As to the reasonableness of the sentence, the district
judge noted that while Godin's life had been blighted, the crime of
conviction was extremely serious--robbery in which a weapon had
been brandished at a victim--and that Godin's past history showed
a "proclivity for drug abuse, for crime, for violence." Further,
the judge recognized that Congress had determined that double
recidivism involving drugs or violence should be met by very stiff
sentences, 28 U.S.C. § 994(h); U.S.S.G. § 4B1.1, background cmt.,
and he properly respected that decision. See generally United
States v. Pho, 433 F.3d 53, 62 (1st Cir. 2006).
On review, Godin says that the "proclivity" finding is
overstated both as to violence and drugs but this is very much a
judgment call and the district court's statement is not clearly
erroneous. Godin had shown some potential for violence--evidenced
both by the possession and brandishing of the gun and by other
-12-
incidents in her past--and, while her use of marijuana is less
dangerous than hard drugs, it was still regular drug use and
apparently one of the motives for her robbery. Nor did the judge,
as now claimed, "ignore[]" Godin's mental and emotional history.
Perhaps the strongest argument for Godin is that about
the worst she appears to have done in her prior burglaries was to
trash an apartment; thus, as to these two offenses, she is within
the letter of the career offender law but at the margin in terms of
dangerousness. Yet, her conduct was escalating--the robbery
involved a gun--and the district court had no reason to think that
Godin could easily be deterred from repetitions. The statute is
designed to give two chances and then to come down very hard the
third time.
A lower sentence could have been defended. But there was
no mistake of law, the district judge made a thoughtful assessment,
the result is not indefensible, and there the matter must stand.
If Godin could rehabilitate herself in prison and dispel the very
real threat of future harm, a responsible penal system would
eventually consider a shortening of her sentence. The President,
through the commutation process, may choose to do so.
Affirmed.
-13-