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.
April 10, 2008
*
Senior Judge Conrad K. Cyr participated in the original
hearing and disposition of this case but retired prior to the
disposition of the petition for rehearing. The remaining members
of the panel comprise a quorum for the issuance of this decision.
28 U.S.C. § 46(d).
Per Curiam. This case is now before us on petition for
rehearing. As recounted in detail in our prior decision, United
States v. Godin, 489 F.3d 431 (1st Cir. 2007) ("Godin I"), Jennifer
Godin pled guilty in 2005 to one count of obstructing commerce by
robbery, 18 U.S.C. § 1951(a) (2000), and one count of using and
carrying a firearm during and in relation to the robbery, id. §
924(c)(1)(A)(ii). On April 14, 2006, the district court sentenced
her to 262 months computed as follows.
Applying the 2005 sentencing guidelines, the district
court found that Godin was a career offender because her crime was
a crime of violence, she was at least eighteen years old at the
time of the offense, and she had two prior offenses in that
category (both burglaries of apartments in the same building in the
same week). U.S.S.G. § 4B1.1(a). As a career offender convicted
on multiple counts, one of which was under 18 U.S.C. § 924(c), her
guidelines range was 262-327 months. U.S.S.G. § 4B1.1(c)(3). The
district court chose the bottom of this range.
On appeal, Godin challenged inter alia the district
court's determination that she was a career offender. She argued
that her two prior crimes of violence--the burglaries--should be
counted as one because they were "related sentences" as defined in
the guidelines. U.S.S.G. §§ 4B1.2(c), 4A1.2(a)(2) & cmt. n. 3
(2005). We rejected Godin's argument because the two burglaries
were not part of a "single common scheme or plan," and although she
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was sentenced for the two burglaries on the same day, the two
crimes had not been "consolidated for trial or sentencing," as this
court had previously interpreted that phrase. Godin I, 489 F.3d at
435-36.
While Godin's appeal was pending, the Sentencing
Commission proposed an amendment to the guidelines restating the
rules for determining when multiple crimes are counted as one for
criminal history purposes. The amendment provided that two prior
convictions are counted as one if the resulting "sentences were
imposed on the same day." U.S.S.G. § 4A1.2(a)(2) (2007); U.S.S.G.,
Supp. to App. C, Amendment 709 (2007). The amendment, proposed in
May 2007, was set to become effective on November 1, 2007, unless
Congress acted to prevent its adoption.
Under the proposed amendment, Godin's two prior
burglaries--for which she was sentenced in state court on a single
day--would count as one, and she would no longer have two prior
felony convictions. Thus, had the amendment been in effect at the
time of her sentencing, Godin would have been excluded from the
career offender category and her guideline sentencing range would
have been reduced from 262-327 months to a much lower number--
possibly as low as 121-130 months.1
1
Godin's PSR assigned an adjusted offense level of 17 to her
robbery conviction. This was based on a base offense level of 20
for robbery under § 2B3.1, and a 3 level reduction for acceptance
of responsibility under § 3E1.1(a). Godin was then assigned a
criminal history category of IV, based on her prior convictions,
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Following this court's June 2007 affirmance of her
sentence, Godin I, 489 F.3d at 438, Godin petitioned for rehearing,
asking the court to consider the impact of the proposed amendment.
As suggested by the government, we delayed ruling on the petition
to see whether the amendment would become effective on November 1,
2007, as it did. If the Sentencing Commission had also given the
amendment retroactive force, this would have returned the matter to
the district court, but the Commission did not do so. United
States Sentencing Commission, Supplement to the 2007 Guidelines
Manual, § 1B1.10(c) (March 3, 2008) (not listing Amendment 709).
The Sentencing Commission's decision not to make the
amendment retroactive means the defendant is not entitled, under
the procedure set forth in 18 U.S.C. § 3582(c)(2), to further
proceedings in which the district court even in the case of a
sentence that has become final may choose to adjust the sentence
employing the more lenient amendment to calculate the guideline
range. But the posture of this case is peculiar: the amendment is
not applicable retroactively, but neither has the pending appeal
yet resulted in a final disposition, that is, a disposition that is
no longer subject to review on direct appeal in any court.
and other relevant factors under U.S.S.G. § 4A1.1, yielding a
guideline range of 37-46 months. However, the statutory minimum
for the firearms offense is 84 months, running consecutively to any
other term of imprisonment. 18 U.S.C. § 924(c)(1)(A); U.S.S.G. §
2K2.4(b) & cmt. n. 2(A). The resulting guideline range--121-130
months--would have been about half the guideline range employed.
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Even though the case is still on appeal, neither this
court nor the district court is governed by a non-retroactive
substantive amendment adopted after the defendant's sentencing,2
but both we and the district court could be influenced by an
amendment that merely clarified an earlier provision. United
States v. Cabrera-Polo, 376 F.3d 29, 32 (1st Cir. 2004). And we,
although not the district court, could choose to alter our own
prior reading of a newly clarified guideline even if in an earlier
case we had read the original guideline adversely to the defendant.
Here, the amendment is substantive and does not establish
that the pertinent guideline in effect at the time of Godin's
sentence was misconstrued by this court. See United States v.
Crudup, 375 F.3d 5, 7-10 (1st Cir. 2004) (discussing factors
rendering guidelines amendment either substantive or clarifying).
The Commission said that a conflict existed as to the
interpretation of the earlier guideline and, in lieu of
clarification in favor of one view or the other, it adopted a new
blanket rule that eliminates the ambiguity by going beyond any
2
United States v. Havener, 905 F.2d 3, 7 (1st Cir. 1990)
(Breyer, J.); see also United States v. Diaz-Cardenas, 351 F.3d
404, 409 (9th Cir. 2003) ("[S]ubstantive amendments to the
guidelines that occur between the date of sentencing and the
resolution of an appeal have no retroactive effect unless
specifically referenced in U.S.S.G. § 1B1.10.").
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circuit's reading of the previous rule in a manner favorable to the
defendant.3
Nevertheless, the Commission's amendment makes clear that
in a case like Godin's, it regards the best approach to be to treat
the two burglary sentences imposed together as one prior sentence
without regard to the timing or circumstances of the burglaries,
and to correct any under-representation of criminal history by
permitting a discretionary adjustment upward. U.S.S.G. § 4A1.2
cmt. n. 3 (2007). Given that both of Godin's burglaries occurred
within a short period in the same building and neither involved
physical harm to any person, it is open to doubt whether under the
new guideline the district court would have made a large upward
adjustment, if any.
The Commission recognized that the language as it stood
in 2005 was not crystal clear and that some circuits like ours had
taken a strict view while others had been more flexible. The
Commission could merely have "clarified" its preference for the
flexible view and we might then have revised our own prior reading,
Isabel v. United States, 980 F.2d 60, 62 (1st Cir. 1992), and given
3
See U.S.S.G., Supp. to App. C, Amendment 709, Reason for
Amendment (Nov. 1, 2007) (comparing United States v. Correa, 114
F.3d 314, 317 (1st Cir. 1997) (requiring formal order of
consolidation) with United States v. Huskey, 137 F.3d 283, 288 (5th
Cir. 1998) (no formal order required)). The Commission also noted
that practitioners complained that the earlier guideline was "too
complex and le[]d to confusion. Moreover, a significant amount of
litigation has arisen concerning application of the rules." Id.
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Godin the benefit of the new rule. Instead, the Commission made a
substantive change, namely, to a mechanical rule that goes even
further in the direction of leniency. It may seem odd that in a
still pending case Godin should be irremediably worse off because
the Commission went further in her direction than mere
clarification.
Understandably, the Commission hesitates to make most
substantive changes retroactive since they may require the redoing
of hundreds or even thousands of final sentences. But the
Commission's policy judgment, as we earlier conjectured in Godin I
is that it is better to start low, counting the same-day sentences
as one, and adjust upward if warranted. That does not alter the
guideline range applicable in this case; but in dealing with a
sentence that has not become final, it might alter the district
court's ultimate choice of a discretionary sentence in the post-
Booker era.
Thus, we think that the district judge should be given a
chance to reconsider the sentence. The original guideline range
calculated by the judge under the 2005 guidelines remains
applicable, because the amendment was substantive and non-
retroactive. But, as the judge's discretion is no longer rigidly
controlled by the guideline range,4 the judge is free to consider
4
Gall v. United States, 128 S. Ct. 586, 594 (2007); United
States v. Booker, 543 U.S. 220, 245, 259-60 (2005); United States
v. Jimenez-Beltre, 440 F.3d 514, 518-19 (1st Cir. 2006) (en banc),
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the Commission's current thinking for whatever use it may be in
exercising the court's judgment about the proper sentence.
Admittedly, the district judge recognized the severity of
the sentence--Godin has had a "horrendous life" (in the judge's
words) and suffers from mental illness--but was willing to impose
it because of the nature of defendant's crime and her history of
drug abuse, crime, and violence. Godin I, 489 F.3d at 437-38. The
district court may still deem this the proper sentence. But the
original guideline range was the starting point and the
Commission's current policy position on who should be deemed a
career offender may have some influence on the judge's ultimate
discretionary choice of sentence.
Accordingly, we grant the petition for rehearing, vacate
our judgement of June 13, 2007, supplement Godin I with this
decision addressed to the amended guideline, vacate the district
court's sentence and remand for re-sentencing, leaving it to the
district judge to decide whether the original or some different
sentence should be imposed and to determine what additional
proceedings, if any, the judge might find helpful.
It is so ordered.
cert. denied, 127 S. Ct. 928 (2007).
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