United States v. Almenas

United States Court of Appeals
For the First Circuit

No. 06-2513

UNITED STATES OF AMERICA,

Appellee,

v.

MIGUEL ALMENAS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Torruella, Lipez and Howard,
Circuit Judges.

Claudia Leis Bolgen, with whom Bolgen & Bolgen, was on brief
for appellant.
Timothy Q. Feeley, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellee.

January 12, 2009
 HOWARD, Circuit Judge. After pleading guilty to selling

crack cocaine, Miguel Almenas was sentenced -- pursuant to a

downward departure -- to 192 months' imprisonment, 43 months below

the bottom of the guideline sentencing range ("GSR"). Almenas

appeals his sentence. He argues primarily that the district court

erroneously relied on his prior conviction for resisting arrest

when sentencing him as a career offender. He also challenges both

the reasonableness of his sentence and the court's use of prior

convictions that he alleges had not been sufficiently proven. We

reject all of Almenas's challenges and affirm his sentence.
I. Background

We provide the bulk of the facts here but include more

where necessary for our discussion.

On three separate occasions in January of 2005, Miguel

Almenas sold crack cocaine to an undercover DEA agent. The total

amount sold was 136 grams. That April, he pled guilty to federal

narcotics offenses in violation of 21 U.S.C. § 841(a)(1).

The pre-sentence report recommended that the career
offender provision of the federal sentencing guidelines, U.S.S.G.

§ 4B1.1, govern Almenas's sentencing. The report determined that

Almenas qualified as a career offender because he had two prior

felony convictions each of which was either a crime of violence or

a controlled substance offense: (1) a 1991 Massachusetts conviction

for possession of cocaine with intent to distribute and (2) a 2000

Massachusetts conviction for resisting arrest.

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 Over Almenas's protest that the latter was not a crime of

violence, the district court accepted the probation office's

recommendation and categorized Almenas as a career offender. The

court determined that Massachusetts's statutory definition of

resisting arrest qualified the offense categorically as a "crime of

violence" under the guidelines.

After arriving at the relevant GSR under the career

offender provision -- 262 to 327 months -- the district court

departed downward based on its conclusion that Almenas's criminal
history category substantially over-represented the seriousness of

his criminal history.1 The new GSR had a low end of 235 months.

The mandatory minimum was 120 months. The court then requested

argument regarding whether either a further downward departure

under U.S.S.G. § 5K2.0 -- based on Almenas's physical, mental and

emotional conditions -- or a non-guideline sentence was in order.

After hearing these arguments, the court elected to

depart downward under § 5K2.0 and imposed a sentence of 192 months'

imprisonment. In brief (we will return to the details), the court
stressed that a departure under § 5K2.0 was justified given

Almenas's chronic neck pain and his mental and emotional condition,

but that imposing only the mandatory minimum of 120 months, as

Almenas requested, would fail to promote appropriate respect for

the law. The court noted that it would impose the same sentence as

a non-guideline sentence. This appeal followed.

1
As provided for under U.S.S.G. § 4A1.3(b).

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 II. Discussion

Almenas raises three challenges to his sentence. His

first and primary challenge relates to the court's use of his prior

resisting-arrest conviction to categorize him as a career offender

for sentencing purposes.2 This challenge has two parts. He argues

that his resisting-arrest conviction does not qualify him as a

career offender because it is neither (1) a "prior felony

conviction" nor (2) a "crime of violence." Almenas's second and

third challenges regard the reasonableness of his sentence and the
district court's use of his prior convictions to enhance his

sentence where those convictions had not been proved to a jury or

admitted by Almenas. Aside from his third argument, which we may

summarily dispatch up front, we address his arguments sequentially.3

2
Almenas acknowledges that his 1991 drug conviction may be counted
as a predicate offense.
3
Almenas's third argument is that his Sixth Amendment rights were
violated because the court used his two prior convictions to
enhance his sentence where the facts of both prior convictions
underlying that determination were not charged by the indictment,
found beyond a reasonable doubt, or admitted by Almenas. This
argument cannot succeed. The Supreme Court has not abandoned its
holding in Almendarez-Torres v. United States, 523 U.S. 224 (1998).
For purposes of enhancing the defendant's sentence, the
Constitution does not require the "fact" of a prior conviction to
be charged in the indictment and either proven to a jury beyond a
reasonable doubt or admitted by the defendant. Id.; see also
James v. United States, 127 S. Ct. 1586, 1600 n.8 (2007).
Accordingly, we are bound to follow this precedent unless the
landscape changes. See United States v. Jimenez-Beltre, 440 F.3d
514, 520 (1st Cir. 2006) (citing United States v. Ivery, 427 F.3d
69, 75 (1st Cir. 2005)).

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 A. Use of resisting-arrest conviction for sentencing purposes

Whether a prior conviction qualifies as a predicate

offense under U.S.S.G. § 4B1.1 is a question of law that we review

de novo. United States v. Santos, 363 F.3d 19, 22 (1st Cir. 2004).4

A defendant is categorized as a career offender if three

criteria are met: (1) the court is sentencing the defendant for a

felony that is either a crime of violence or a controlled substance

offense; (2) the defendant was at least eighteen when he committed

the felony; and (3) the defendant has been previously convicted of
two unrelated felonies each of which was either a crime of violence

or a controlled substance offense. U.S.S.G. § 4B1.1(a).

The focus in this case is on the third criterion. We

conclude that the district court correctly determined that Almenas's

prior resisting-arrest conviction qualified both as a "prior felony

conviction" and as a "crime of violence." We address both

determinations, and Almenas's challenges to them, in order.
1. Prior felony conviction

The Guideline commentary defines "prior felony conviction"
as: "[A] prior adult federal or state conviction for an offense

punishable by death or imprisonment for a term exceeding one year,

regardless of whether such offense is specifically designated as

a felony and regardless of the actual sentence imposed." U.S.S.G.

4
We disagree with the government's contention that the plain
error standard governs Almenas's argument concerning the court's
treatment of his resisting-arrest conviction as a crime of
violence. Almenas sufficiently presented and preserved the issue
below, and the district court acknowledged as much during the
sentencing hearing.

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§ 4B1.2, cmt. n.1.

Here, the district court properly determined that

Almenas's resting arrest conviction was a "prior felony conviction"

because under Massachusetts law, resisting arrest, a misdemeanor

offense, carries a punishment of up to two and one-half years in a

jail or the house of correction. See Mass. Gen. Laws ch. 268, §

32B(d).

Neither the fact that Massachusetts law categorizes

resisting arrest as a misdemeanor, nor the fact that Almenas was not
actually imprisoned for a term exceeding one year, affects our

analysis. A crime "punishable" by imprisonment for a term exceeding

one year is a felony for purposes of the career offender provision,

"regardless of whether such offense is specifically designated as

a felony and regardless of the actual sentence imposed." See

U.S.S.G. § 4B1.2, cmt. n.1.

Almenas argues that a different section of the guidelines,

§ 4A1.2(c), suggests that resisting arrest is not a felony for

purposes of the career offender provision. Section 4A1.2(c) details
which prior sentences must be counted and which must be excluded for

purposes of computing criminal history. It also cites "resisting

arrest" as an example of a misdemeanor or petty offense and further

notes that such offenses cannot be counted for purposes of computing

criminal history if the sentence actually imposed was less than one

year probation or thirty days in prison. Consequently, Almenas

argues that because § 4A1.2(c) is made applicable to the career

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offender provision through § 4B1.2(c),5 and because he received only

a fine for his resisting-arrest conviction, his conviction cannot

qualify as a "prior felony conviction." At the least, he contends,

§ 4A1.2(c)'s reference to resisting arrest as a misdemeanor or petty

offense creates an ambiguity triggering the rule of lenity.

Accordingly, he argues, we must resolve the ambiguity in his favor.

We disagree. Section 4A1.2(c)'s own language, when read

in conjunction with another guideline section -- § 4A1.2(o) --

makes evident that Almenas's resisting-arrest conviction qualifies
as a prior felony conviction. Section 4A1.2(c)'s first sentence

reads, "Sentences for all felony offenses are counted," before going

on to list "misdemeanor and petty offenses" such as resisting

arrest. U.S.S.G. § 4A1.2(c) (emphasis added). When this language

is read with reference to § 4A1.2(o), which provides that "for the

purposes of [section] 4A1.2(c), a 'felony offense' means any

federal, state, or local offense punishable by death or a term of

imprisonment exceeding one year, regardless of the actual sentenced

imposed,"6 any ambiguity is resolved. Resisting arrest qualifies as

5
Almenas argues that it is applicable as follows: U.S.S.G. §
4B1.2 is the definition section for terms used in § 4B1.1.
Subsection (c) provides in relevant part:

The term 'two prior felony convictions' means . . . (2)
the sentences for at least two aforementioned felony
convictions are counted separately under the provisions
of . . . § 4A1.1(a), (b), or (c). Id.

U.S.S.G. § 4A1.1, in turn, is read together with § 4A1.2. See
Commentary to U.S.S.G. § 4A1.1
6
This definition of a "felony offense" mirrors the definition of
"prior felony conviction" in § 4B1.2's guideline commentary.

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a "prior felony conviction" according to the career offender

provision's guideline commentary and as a "felony offense" for

purposes of § 4A1.2(c). In order for a resisting-arrest offense to

qualify as a misdemeanor or petty offense for purposes of §

4A1.2(c), it would have to be punishable by imprisonment for a term

under one year. Or, put differently, the offense would have to fall

outside of the guideline definition of a felony. That is not the

case here.
2. Crime of violence

Under the guidelines, an offense will qualify as a crime

of violence if it is punishable by imprisonment for a term exceeding

one year and either: (1) has as an element the "use, attempted use,

or threatened use of physical force against the person of another"

or (2) "is burglary of a dwelling, arson, or extortion, involves use

of explosives, or otherwise involves conduct that presents a serious

potential risk of physical injury to another." U.S.S.G. §

4B1.2(a)(1), (2) (emphasis added). The underscored statutory

language is referred to as either the "otherwise clause" or the
"residual clause." United States v. Giggey, 2008 U.S. App. LEXIS

26407, at * 14 (1st Cir. Dec. 28, 2008); United States v. Williams,

529 F.3d 1, 4 (1st Cir. 2008).

To determine whether a defendant's prior offense falls

within the guideline definition of a "crime of violence" we take a

formal, categorical approach. Giggey, 2008 U.S. App. LEXIS 26407

at * 29; United States v. Winn, 364 F.3d 7, 9 (1st Cir. 2004). This

approach, depending on the offense at issue, has either one or two

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steps. The first step is always the same. We compare the

legislature's definition of the relevant offense with the guideline

definition of a "crime of violence." Id. This comparison "is

restricted to the statutory definition . . . of the prior offense

. . . , without regard to the particular facts underlying the

conviction." United States v. Meader, 118 F.3d 876, 882 (1st Cir.

1997); see also Giggey, 2008 U.S. App. LEXIS 26407, at * 29. "If

[we determine] that a violation of the statute in question

necessarily involves each and every element of a violent crime, then
the offense is deemed a crime of violence and [our] inquiry is at

an end." Williams, 529 F.3d at 4. If, however, "the statute's text

is broad enough to criminalize both violent and non-violent

conduct," we must take another step to determine whether the

defendant engaged in the crime's violent variety. Id.; United

States v. Winter, 22 F.3d 15, 18 (1st Cir. 1994). In so doing, we

may "[examine] documents such as charging papers or jury

instructions in order to flesh out a predicate offense inquiry."

Winn, 364 F.3d at 9 (citation omitted); see also Shepard v. United
States, 544 U.S. 13, 26 (2005) (identifying documents to which a

court may refer in such instances). The district court in this case

concluded that the resisting-arrest statute criminalized only

violent conduct and thus did not take the second step.

We start by considering the Massachusetts statutory

definition of resisting arrest. The crime is defined as follows:

A person [resists arrest] if he knowingly
prevents or attempts to prevent a police
officer, acting under color of his official

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 authority, from effecting an arrest of the
actor or another by:

(1) using or threatening to use physical
force or violence against the police
officer or another; or

(2) using any other means which creates a
substantial risk of causing bodily injury
to such police officer or another.

Mass. Gen. Laws, ch. 268, § 32B.

The first method of resisting arrest fits squarely within

the definition of a crime of violence. Under this method, a person
resists arrest by "using or threatening to use physical force or

violence." Id.; see U.S.S.G. § 4B1.2(a)(1).

The second method of resisting arrest does not explicitly

involve the "use, attempted use, or threatened use of physical

force" and therefore our focus turns to the residual clause. We

must decide whether this method of resisting arrest, "involves

conduct that presents a serious potential risk of physical injury

to another." See U.S.S.G. § 4B1.2(a)(2).

Facially, the second method of resisting arrest falls

safely within the residual clause. It invariably creates a "serious
potential risk of physical injury to another" because, by its very

definition, it creates a "substantial risk of causing bodily injury

to a police officer or someone else." See United States v. Hollis,

447 F.3d 1053, 1054-1055) (8th Cir. 2006). But, after the Supreme

Court's decision in Begay v. United States, 128 S. Ct. 1581 (2008),

more analysis is needed. See Williams, 529 F.3d at 6.7 After

7
Even though the Court in Begay was interpreting the violent
felony definition of the Armed Career Criminal Act (ACCA), 18

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Begay, to fall within the residual clause, the offense at issue must

both: (i) pose a degree of risk that is similar to the degree of

risk posed by the enumerated offenses -- namely arson, burglary,

extortion, and offenses involving the use of explosives -- and (ii)

be similar "in kind" to those offenses. 128 S. Ct. at 1585; see

also United States v. Herrick, 545 F.3d 53, 58 (1st Cir. 2008). An

offense will be similar "in kind" to the enumerated offenses if it

"typically involve[s] purposeful, 'violent,' and 'aggressive'

conduct." Id. at 1586 (citation omitted); Williams, 529 F.3d at 7
(citation omitted).

Even after Begay, the second method of resisting arrest

still qualifies as a crime of violence under the residual clause.

First, the crime poses a degree of risk roughly similar to the risk

posed by the enumerated offenses. In fact, the degree of risk posed

by both methods of resisting arrest is arguably greater than the

risk posed by the enumerated offenses. Unlike the enumerated

offenses, resisting arrest necessarily involves resisting the

authority of a police officer, an official charged with defending
the public. Because the police officer is duty-bound to effectuate

the arrest, the offense engenders a significant risk of conflict

and, concomitantly, a significant risk of injury. See United States

v. Fernandez, 121 F.3d 777, 780 (1st Cir. 1997) (crime of simple

assault and battery on a police officer presents a serious potential

U.S.C. § 924(e)(2)(B), and though much of its analysis appeared
specific to that statute, "for both prudential and precedential
reasons, we have read that statute and the almost parallel
guideline language at issue [in the guidelines definition of crime
of violence] as being in pari passu." Williams, 529 F.3d at 6.

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risk of injury in part because of likelihood officer will react and

attempt to subdue offender).

Second, resisting arrest by this method involves

purposeful, "violent," and "aggressive" conduct. The purposefulness

requirement is easily met. Both methods of resisting arrest require

the offender to act knowingly. See Begay, 128 S. Ct. at 1586

(crimes involving use of explosives are purposeful because "the word

use . . . most naturally suggests a higher degree of intent than

negligent or merely accidental conduct") (quoting Leocal v.
Ashcroft, 543 U.S. 1, 9 (2004) (some internal quotations omitted))).

And this method of resisting arrest is by its nature both

"aggressive" and "violent" -- it involves a refusal to yield to a

public official's exercise of authority and creates a substantial

risk of injury. To cinch matters, we can say confidently that the

nonpassive resisting arrest envisioned by the statute is at least

as "aggressive" and "violent" as burglary. See Williams, 529 F.3d

at 7 n.7 ("Burglary, for instance, can be described as purposeful

but not, at least in most instances, as purposefully violent or
necessarily aggressive."). After all, when resisting arrest the

offender is knowingly engaging in conflict with another.

Almenas, for his part, advances two arguments. First, he

says that the district court should have at least proceeded to the

second step of the categorical approach because the Massachusetts

resisting-arrest statute effectively criminalizes both violent and

non-violent conduct. The statute does so, he contends, because an

"insubstantial use of force" is enough to convict a person under the

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statute. In support of this argument, Almenas cites Commonwealth

v. Maylott, 65 Mass. App. Ct. 466 (Mass. App. 2006). In that case,

a Massachusetts appeals court determined that a defendant's

stiffening of his arm to avoid being handcuffed was sufficient to

convict him for resisting arrest under either definition of the

Massachusetts statute. Id. at 469-470.8

In light of our discussion above, we do not believe

stiffening one's arm to avoid being handcuffed can be characterized

as "non-violent," or, for that matter, "non-aggressive." Moreover,
two Massachusetts cases, including Maylott itself, have concluded

that such conduct was sufficient to create a substantial risk of

injury to a police officer or someone else. See Maylott, 65 Mass.

App. Ct. at 469-70 ("While the defendant's [stiffening of his arm]

may not have overcome the police officers, the circumstances . . .

present[ed] a substantial risk of injury to them."); see also

Commonwealth v. Garrison, 433 Mass. 135 (2001) (holding that

defendant's stiffening of his arm to avoid arrest was sufficient to

convict him for resisting arrest because it created a "'substantial
risk of bodily injury' to the police officers"). We agree with the

analysis set forth in those cases and conclude that the force

Almenas describes is sufficient to create a serious potential risk

of injury to another.9

8
"Passive resistance," characteristic of non-violent protestors,
does not qualify as resisting arrest under this statute. The
Commonwealth of Massachusetts has conceded as much. See Maylott,
65 Mass. App. Ct. at 469.
9
Although Almenas, in arguing that the statute criminalizes non-
violent conduct, latches onto the arm-stiffening example, a

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 Almenas's second argument relies on Begay, and

specifically, on Begay's requirement that the offense at issue be

similar in kind to § 4B1.2(a)(2)'s enumerated offenses. He argues

that resisting arrest is not similar "in kind" to those offenses

because those offenses are all "property crime viewed as likely to

result in collateral injury to persons." Resisting arrest, he

notes, has nothing to do with property.

The distinction Almenas draws is immaterial. An offense

will be similar "in kind" to the enumerated offenses if it

"typically involves[s] purposeful, 'violent,' and 'aggressive'

conduct" regardless of whether property is involved. See Begay, 128

S. Ct. at 1586. In fact, in Williams we concluded that even though

the offense at issue had nothing to do with property -- it concerned

the transport of a minor across state lines for prostitution --

marginally more persuasive argument is available to him. Under
Massachusetts law, certain types of flight from arrest will likely
qualify as resisting arrest. See Commonwealth v. Grant, 71 Mass.
App. Ct. 205, 210 n.2 (Mass. App. 2008) ("There is uncertainty in
the case law and commentary regarding the circumstances in which
flight on foot may constitute resisting arrest."). One could argue
that, in at least some cases, a defendant's flight from arrest is
neither aggressive nor violent. This, however, fails to alter our
conclusion. In determining whether an offense will categorically
qualify as a crime of violence, the focus must be on the "mine-run
of conduct that falls within the heartland of the statute." United
States v. De Jesus, 984 F.2d 21, 24 (1st Cir. 1993); see also
Giggey, 2008 U.S. App. LEXIS 26407, at * 37. Resisting arrest is
typically both violent and aggressive. See Begay, 128 S. Ct. at
1586 (noting that enumerated crimes all "typically" involve
purposeful, violent and aggressive conduct). And, moreover, if a
defendant's flight from arrest is to qualify as resisting arrest
under Massachusetts law, it must either involve the use or
threatened use of force or create a substantial risk of injury to
a police officer or another. See Mass. Gen. Laws, ch. 268, § 34B.

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it nonetheless was similar in kind to the enumerated offenses. 529

F.3d at 2, 7 (citation omitted).
B. Reasonableness of Almenas's sentence

Almenas argues that even if the district court correctly

categorized him as a career offender, his 192-month sentence is

unreasonable. He contends that the court did not adequately explain

the chosen sentence. In particular, he argues that the court's

explanation suggests that it insufficiently considered factor (1)

of § 3553(a) relating to the "history and characteristics of the
defendant." Because Almenas failed to raise an objection to the

sentencing procedure below, his challenge is governed by the plain

error standard.10 United States v. Gilman, 478 F.3d 440, 445 (1st

Cir. 2007).

Our review of sentences has two components. We must

satisfy ourselves that the sentence imposed is both (i) procedurally

sound11 and (ii) substantively reasonable. Id. at 597; see also

United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). Our focus

10
Under this standard Almenas bears the burden of showing: "(1)
that an error occurred, (2) which was clear or obvious and which
not only (3) affected [his] substantial rights, but also (4)
seriously impaired the fairness, integrity, or public reputation of
judicial proceedings." United States v. Duarte, 246 F.3d 56, 60
(1st Cir. 2001).
11
A sentence is procedurally sound so long as the district court
did not commit a procedural error in arriving at the sentence.
Examples of procedural errors include: "failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the section 3553(a)
factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence-including an
explanation for any deviation from the Guidelines range." Gall,
128 S. Ct. at 597.

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in this case is on the procedural component. See Gall, 128 S. Ct.

at 597 (noting that a court's failure to adequately explain the

chosen sentence is a procedural error).

A district court's explanation for a chosen sentence must

be "reasoned and case-specific." Gilman, 478 F.3d at 446. Though

it must reflect that the court considered the § 3553(a) factors,12

id. at 445, the court need not address these factors "one by one,

12
Generally, § 3553(a) directs a sentencing court to consider:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;

(2) the need for the sentence imposed-

(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the
defendant; and

(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner.

(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for-

(A) the applicable category of offense committed by the
applicable category of defendant as set forth in the
guidelines . . .

(5) any pertinent policy statement [in the guidelines]

(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; and

(7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a).

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in some sort of rote incantation when explicating its sentencing

decision." United States v. Dixon, 449 F.3d 194, 205 (1st Cir.

2006); see also United States v. Turbides-Leonardo, 468 F.3d 34, 40

(1st Cir. 2006) (noting court should ordinarily identify the main

factors upon which it relies) (citation omitted).13

The district court's explanation is procedurally adequate.

It reflects a thoughtful consideration of the relevant § 3553(a)

factors including the first factor concerning the defendant's

"history and characteristics." The court addressed Almenas's
personal history, noting that he had "unfortunate circumstances,"

and extensively discussed his personal characteristics remarking,

that Almenas "seem[ed] to have a combination of physical and mental

disabilities" including "chronic neck pain," "chronic low back pain"

and "[severe] depression and psychosis." In fact, the court

referred to Almenas's personal history and characteristics as the

motivating force behind its grant of a substantial downward

departure under U.S.S.G. § 5K2.0. Additionally, the court touched

on other § 3553(a) factors during its explanation. It noted that
a lower sentence would fail to promote appropriate respect for the

law, see § 3553(a)(2)(A), and that it was taking into account the

guidelines' severe penalties for crack cocaine offenses. See §

3553(a)(4). In summarizing its decision, the court stated that:

(1) it "would impose[] the same sentence[] as a non-Guideline

13
Almenas appears to suggest that the court erred because it
neglected to read all seven of the § 3553(a) factors during
sentencing. This argument is fatally flawed. We have never
required a district court to march out each § 3553(a) factor one by
one in the process of imposing a sentence. Dixon, 449 F.3d at 205.

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sentence under Section 3553(a)"; (2) it imposed a sentence

"necessary to achieve the purposes of sentencing under Section

3553(a)"; and (3) it had "considered the sentencing factors set

forth at 18 U.S.C. Section 3553(a)." In sum, the court gave an

adequate explanation for the 192-month sentence which honored the

competing concerns of mercy and punishment.14

For the reasons discussed above, the sentence is affirmed.

AFFIRMED.

14
Almenas filed a letter under Fed. R. App. P. 28(j) calling our
attention to the Supreme Court's decision in Kimbrough v. United
States, 128 S. Ct. 558 (2007) which issued after this case was
submitted. In Kimbrough, the Court held that a district court may
deviate from a properly calculated guideline sentencing range based
on its disagreement with the crack/powder sentencing ratio
disparity. Id. at 570. Although Almenas was sentenced for selling
crack, he neither raised the crack/powder disparity issue below nor
initially in this court. "A party cannot normally raise a new
issue in a Rule 28(j) filing." United States v. Barbour, 393 F.3d
82, 93 (1st Cir. 2004) (citation omitted). However, where a party
raises such an issue "in response to a potentially crucial Supreme
Court decision that issued only after briefing and oral argument
were completed," and no waiver has occurred, plain error review is
appropriate. See United States v. Morgan, 384 F.3d 1, 8 (1st Cir.
2004).
To satisfy the plain error standard in this context, Almenas
must "demonstrate a reasonable probability that he would have
received a more lenient sentence had the district court considered
the crack cocaine disparity when sentencing [him." United States
v. Matos, 531 F.3d 121, 122 (1st Cir. 2008). He has failed to do
so here. And, we note further, that when sentencing Almenas the
district court made manifest that it would have imposed the same
sentence as a non-guideline sentence.

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