United States Court of Appeals
For the First Circuit
No. 07-1030
UNITED STATES OF AMERICA,
Appellee,
v.
TIMOTHY BOARDMAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch and Lipez, Circuit Judges.
Jaye L. Rancourt, by appointment of the court, with whom
Brennan Caron Lenehan & Iacopino was on brief for appellant.
Terry L. Ollila, Assistant United States Attorney, with whom
Thomas P. Colantuono, United States Attorney, was on brief for
appellee.
June 11, 2008
BOUDIN, Chief Judge. On June 27, 2006, Timothy Boardman
pleaded guilty to one count of conspiracy to distribute heroin, 21
U.S.C. § 846 (2000); he was thereafter sentenced to 84 months'
imprisonment by the federal district court for New Hampshire. He
now appeals to contest his sentence.
Boardman argues that his two prior convictions for
burglary (of a warehouse and a garage, respectively) should not
have been considered predicate "crimes of violence" for purposes of
the career offender provision of the sentencing guidelines,
U.S.S.G. § 4B1.1, application of which substantially increased his
guideline range. He also argues that in any event, the district
judge had--but mistakenly thought he did not have--the discretion
to deviate from the guideline range based on his view that the
prior felonies should not be so treated.
This court's decision in United States v. Fiore, 983 F.2d
1 (1st Cir. 1992), cert. denied, 507 U.S. 1024 (1993), held that
non-residential burglary is always a crime of violence under the
guideline in question, id. at 4-5, and the district judge
faithfully applied that precedent in this case. However, we have
just agreed, in another pending case, United States v. Giggey, No.
07-2317, to reconsider en banc the holding of Fiore; were we to
decide to change course, a remand would be necessary here too.
However, Giggey, in which further briefing is being sought, cannot
be argued and decided until the fall.
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In the meanwhile, if Boardman's alternative argument is
right, then he is entitled to resentencing regardless of whether
Fiore is overturned. See United States v. Rodriguez, 327 F.3d 52,
54 (1st Cir. 2003). Because of time already served before and
after the sentence was imposed, resentencing could result in a new
sentence that would amount to immediate or imminent release.1 And
because we think that the district judge has more authority than he
thought even if Fiore stands, we think that a remand now serves the
interests of justice without awaiting the outcome of Giggey.
After Boardman was sentenced, the Supreme Court held in
Kimbrough v. United States, 128 S. Ct. 558 (2007), that district
judges may deviate from the guidelines even on the basis of
categorical policy disagreements with its now-advisory provisions.
In Kimbrough, the disagreement was with the crack to cocaine ratio
set forth in the guidelines, see id. at 570; here, the district
judge's comments at the sentencing hearing suggest disagreement
with this court's interpretation of the guidelines in Fiore to
include non-residential burglary as a predicate for the career
offender enhancement.
The district court properly recognized that it was bound
by Fiore to treat the guideline as we had interpreted it; but we do
1
Although his current sentence is 84 months and was imposed
only in December 2006, he had by then already been held for a
substantial period, normally credited against the sentence, and
sought in district court a sentence of approximately 32 months. He
has already served more than 32 months.
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not see why disagreement with the Commission's policy judgment (as
expressed in the guideline as we interpreted it in Fiore) would be
any less permissible a reason to deviate than disagreement with the
guideline policy judgment at issue in Kimbrough. The district
court, of course, had no reason to anticipate Kimbrough's approach
which overturned or called into question various rulings of this
court and other circuits assuming that such guideline policy
judgments were binding.
Of course the district court is still required to
calculate and consider the guidelines range. United States v.
Jimenez-Beltre, 440 F.3d 514, 518-19 (1st Cir. 2006) (en banc),
cert. denied, 127 S. Ct. 928 (2007). But because it has broader
freedom that it did before Kimbrough and there is some explicit
indication that it might well alter its sentence in light of that,
we think a remand is warranted to permit the court to make its own
decision now informed by Kimbrough. Rodriguez, 327 F.3d at 54.
This is so regardless of how Giggey is ultimately decided.
The government responds that the district court knew it
had discretion, and in fact exercised it by varying downward by
almost 50 months (from a guideline range of 140-175 months). But
the question is discretion to deviate on what grounds, and we think
the district court (without the benefit of Kimbrough's
clarification) underestimated what it was entitled to do. The
judge explicitly said that "if on appeal the Circuit believes that
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I should have greater discretion . . . then I would go back and
sentence the defendant to 33 months." The government insists that
in fact the judge, if given the chance would not do so as long as
Fiore stands, but we prefer to let him make that decision.
The district court may, of course, wish to postpone
resentencing until after the en banc court decides Giggey; if so,
it might or might not wish to release Boardman pending
resentencing. Nothing in our decision is intended to suggest that
a lesser sentence should be imposed or that Boardman should be
released now, either definitively or provisionally. Our concern is
that the district judge consider such issues with the additional
latitude furnished by Kimbrough.
The sentence is vacated and the matter remanded to the
district court for further proceedings consistent with this
decision.
It is so ordered.
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