United States v. Glover

United States Court of Appeals
For the First Circuit

No. 07-1983

UNITED STATES OF AMERICA,

Appellee,

v.

JAMES GLOVER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

Lipez, Merritt,* and Howard
Circuit Judges.

Charles W. Rankin, with whom Michelle Menkin and Rankin &
Sultan, were on brief, for appellant.
Matthew D. Krueger, Attorney, United States Department of
Justice, with whom Michael J. Sullivan, United States Attorney,
was on brief, for appellee.

February 26, 2009

*
Of the Sixth Circuit, sitting by designation.
 HOWARD, Circuit Judge. James Glover challenges his

conviction for being a felon in possession of a firearm, 18 U.S.C.

§ 922(g)(1), claiming that comments made by the prosecutor during

the closing argument at his trial were improper. He also

challenges his sentence in two respects: the classification of his

prior conviction for assault and battery with a dangerous weapon as

a "crime of violence" under U.S.S.G. § 2K2.1(a)(2) and the overall

reasonableness of his sentence.

I. Factual Background

In September 2005, Boston Police Officers Joseph Marrero

and Manual Blas approached Glover while they were patrolling a

housing development. The officers testified that they asked Glover

his name and whether he lived in the development. In response, he

first reached toward his back pocket, then brought his hands

forward before he took off running from the officers. They chased

him, with Officer Marrero being the closest in pursuit. Marrero

testified that he saw Glover remove a tan object from the right

side of his waist area and hold the object in his right hand.

Glover then turned a corner, and Marrero lost sight of him for

several seconds. When they caught up to and arrested Glover, the

officers found a small amount of marijuana in his pocket, but no

weapons and no tan object.

Shortly thereafter, a .25 caliber handgun with an ivory

handle was recovered from along the path of the chase. The gun was

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lying in plain view near the corner where Marrero testified that he

had lost sight of Glover. Glover was charged with possessing a

firearm after having been convicted of a felony, in violation of 18

U.S.C. § 922(g)(1).

At trial, the government argued that Glover had the

ivory-handled gun on his person when he fled from the officers, and

discarded it while he was briefly out of their sight. Glover, for

his part, argued that someone else had placed the gun on the ground

where it was recovered, possibly as a "community gun" (a gun that

a group of people share and store in a public but concealed

location). Glover introduced testimony that a number of community

guns had been recovered by the Boston Police Department in that

same area. Glover also argued that he would not have been likely

to reach for or discard a firearm with his right hand, as he is

left-handed; he introduced handwriting evidence to this effect at

trial.

Defense counsel objected to several comments in the

government's closing argument, to be described in detail later, but

the district court overruled those objections. The jury convicted

Glover of possessing a firearm after having been convicted of a

felony.

Glover objected to the Presentence Report ("PSR")

prepared for his sentencing. He disputed the classification of his

prior conviction for assault and battery with a dangerous weapon

-3-
("ABDW") as a "crime of violence" under U.S.S.G. § 2K2.1(a)(2).

Glover also requested either a U.S.S.G. § 4A1.3(b) downward

departure based on his criminal history, or a variance based on the

sentencing factors set out in 18 U.S.C. § 3553(a). Glover argued

specifically that his criminal history points under the Guidelines

overstated his actual criminal history, and in light of this, that

he should receive a below-Guidelines sentence. More specifically,

he argued that he was already effectively serving incarceration

time for the instant felon-in-possession offense because the

offense was also a violation of supervised release conditions

imposed on an earlier charge. He argued that the time served on

the supervised release violation should "count" toward his current

sentence. He also claimed that a then-proposed amendment to the

Guidelines relating to cocaine base (crack cocaine) offenses should

result in a reduction of his sentence for the instant offense.

Glover also stressed that he had a positive future, because he had

achieved steady employment prior to committing the offense.

The district court accepted the PSR's classification of

the ABDW conviction, stating, "[B]ased on the charging document

itself, I could determine that this is a crime of violence." The

court also found, however, that a variance from the Guidelines

range of 100-120 months was warranted, and sentenced Glover to 92

months' imprisonment, followed by three years of supervised

release. This appeal followed.

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 II. Closing Argument

Glover argues that his conviction should be set aside

because the prosecutor made improper comments in closing argument

at trial. We analyze de novo whether the comments were improper.

United States v. Balsam, 203 F.3d 72, 87 (1st Cir. 2000). If we

determine that the comments were improper and the objection was

preserved, we review for harmless error under Chapman v.

California, 386 U.S. 18, 24 (1967). United States v. Wihbey, 75

F.3d 761, 769 (1st Cir. 1996). Absent an objection below, however,

our review is for plain error only. Id.

Glover argues that four specific comments in the

government's closing argument were improper. We set forth the

comments in the order in which they were delivered.

After briefly summarizing the evidence, the prosecutor

stated ("Comment One"):

So I guess the questions become, well,
straightforward: Does it make sense? Or turn
the question the other way: Is there anything
that doesn't make sense. Well, I submit to
you that if you look at it carefully, it makes
perfect sense. If you look at it carefully,
there's nothing that doesn't make sense.

(emphasis added).

The second comment ("Comment Two") followed a recounting

of Officer Marrero's testimony that he had seen a tan object in

Glover's hand. The prosecutor asked, "Is there any reason to doubt

that testimony?"

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 The third comment ("Comment Three") concerned evidence

that the defendant wrote with his left hand.

Clearly, okay, the defendant writes with his
left hand. He may prefer to do some things
left-handed. We don't know what those other
things are. Officer Blas, for example, he
writes left-handed but he shoots right-handed.

(emphasis added).

The final comment ("Comment Four") concerned the

government's theory that Glover had dropped the firearm on the

ground where it was recovered.

You saw the area, saw the photographs of the
undisturbed firearm. . . . The firearm was out
in the open, it was not hidden. What other
explanation can there be? . . . There was
some testimony about community guns, but all
that testimony about community guns, about
guns stashed somewhere, is that the guns were
hidden. You wouldn't put a loaded firearm in
the open by a stairwell in the middle of a
development. It doesn't make any sense.

(emphasis added).

Immediately after the government closed, defense counsel

objected to Comments Three and Four, maintaining that these two

comments impermissibly shifted the burden of proof. He argued that

the comments called for the defendant to prove that he did other

activities left-handed, or to prove that the gun did not belong to

him. The district court overruled both objections.

On appeal, Glover argues that these statements, either

individually or in combination, shifted the burden of proof and

also constituted impermissible comments on his failure to testify,

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in violation of the Fifth Amendment guarantee against self-

incrimination.1 Glover also argues for the first time that

Comments One and Two were improper for the same reasons.

The closing argument is "an especially delicate point in

the trial process," and we scrutinize comments that may either

shift the burden of proof or are comments on a defendant's failure

to testify. See United States v. Taylor, 54 F.3d 967, 977 (1st

Cir. 1995).

As to comments that shift the burden, we stated in United

States v. Diaz-Diaz, 433 F.3d 128, 135 (1st Cir. 2005) that "a

prosecutor may cross the line [into impermissibility] by arguing to

the jury that the defendant is obligated to present evidence of his

innocence." The case of United States v. Skandier, 758 F.2d 43

(1st Cir. 1985) is illustrative. There, the prosecutor stated in

closing argument, "Now, at this time the defense counsel will

address you; . . . [then] I will have a chance to speak with you

one more time and see if he can explain the story that would be any

different with regard to the responsibility of the defendant in

this case." Id. at 45 (emphasis added). We held this comment to

1
The government maintains that Glover has forfeited any Fifth
Amendment argument, as his objection below was only that burden of
proof had been impermissibly shifted. We do not need to decide
this issue here, and there are reasons not to. The two grounds for
objection overlap in this case; we consider the prosecutor's
statements under the totality of the circumstances, Balsam, 203
F.3d at 87 n.19, 88 n.20; and the standard of review does not
effect the result in any event.

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have impermissibly shifted the burden of proof to the defendant.

Id. See also Diaz-Diaz, 433 F.3d at 135 (statement that "[defense]

counsel can call this witness, just like the United States,"

impermissibly shifted the burden of proof).

When assessing whether a prosecutor's comments violate

the Fifth Amendment guarantee against self-incrimination, we ask

whether "'the language used was manifestly intended or was of such

a character that the jury would naturally and necessarily take it

to be a comment on the failure of the accused to testify.'"

Wilkerson, 411 F.3d at 9 (quoting Wihbey, 75 F.3d at 769). In

United States v. Cox, 752 F.2d 741 (1st Cir. 1985), we held a

prosecutor's repeated statements in closing argument, asking "how

does [defendant] explain" certain evidence, to be impermissible and

a "severe violation of the Griffin rule." Id. at 745 (discussing

Griffin v. California, 380 U.S. 609 (1965)); see also Wihbey, 75

F.3d at 770 (prosecutor's statement that, "if [defense counsel] can

stand up and explain away that conversation to you, then you should

[acquit defendant]," was impermissible comment on defendant's

failure to testify); United States v. Roberts, 119 F.3d 1006, 1015

(1st Cir. 1997) (statement that "the defendant has the same

responsibility [as the government] and that is to present a

compelling case," held impermissible).

The government does, however, have reasonable latitude to

operate within a closing argument. Where the defendant has

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presented a defense, as Glover did here, the government is

permitted to discuss competing inferences from the evidence on the

record. In United States v. Henderson, 320 F.3d 92, 105 (1st Cir.

2003), the defendant had attempted to impeach the credibility of a

government witness by showing that the witness was under the

influence of drugs during an alleged drug transaction. The

prosecutor stated, "And don't the tapes prove to you how absurd the

defendant's claims are that [the witness] was too high . . . to

have accurately perceived the events . . . ? Don't the tapes, in

fact, prove [the opposite]?" Id. We held these comments to be

permissible discussions of competing inferences. The government is

also permitted to comment on the plausibility of the defendant's

theory. See United States v. Glantz, 810 F.2d 316, 321 (1st Cir.

1987) (reversing district court's grant of new trial where

prosecutor commented on failure of defendants to introduce specific

documentary evidence because, in context, prosecutor was commenting

on plausibility of defense theory). When commenting on the

plausibility of a defense theory, the government's focus must be on

the evidence itself and what the evidence shows or does not show,

rather than on the defendant and what he or she has shown or failed

to show. See Wilkerson, 411 F.3d at 8-9 (comment that there was

"no real evidence" and "pretty much nothing" to support defendant's

version of events held permissible as directed at evidence); see

also United States v. Akinola, 985 F.2d 1105, 1111 (1st Cir. 1993)

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(statement in drug conspiracy case that certain actions undertaken

by defendant were "unexplained by anything other than knowledge of

the heroin in the car" held permissible as directed at evidence.)

Even if we conclude that prosecutorial comments are

improper, "reversible error will be found only if the [comments]

were 'both inappropriate and harmful.'" United States v. Laboy-

Delgado, 84 F.3d 22, 29 (1st Cir. 1996). When determining whether

comments are "harmful," we consider the "totality of the

circumstances," including the severity of the misconduct, the

prosecutor's purpose in making the statement (i.e., whether the

statement was willful or inadvertent), the weight of the evidence

supporting the verdict, jury instructions, and curative

instructions. See Balsam, 203 F.3d at 87 n.19, at 88 n.20.

A specific curative instruction can mitigate the damage

of an improper comment, Wihbey, 75 F.3d at 770-71, and the content

of the jury instructions can remedy the effects of problematic

language employed in the closing argument, Wilkerson, 411 F.3d at

9. Here, the court delivered jury instructions explaining the

reasonable doubt standard and the defendant's right to decline to

testify.2

2
The jury was instructed as to the burden of proof and the Fifth
Amendment privilege as follows:

The law does not require a defendant to prove his
innocence or to produce any evidence at all. A defendant
has a right to stand on the presumption of innocence and
put the government to its burden of proof beyond a

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 For ease of exposition, we commence with Comment Four and

place it in context. The government alleged that Glover had

possessed the firearm. Glover asserted that the gun was not his

and could have been a community gun. In context, asking "what

other explanation can there be?" was an attempt by the prosecutor

to refute Glover's preferred interpretation of the evidence. The

prosecutor's comments would not be viewed by a jury as suggesting

that Glover himself should have taken the stand to provide an

explanation, or that Glover was required to prove the gun was not

his. The prosecutor was appealing to the jurors' common sense in

asking them to credit the government's explanation instead of the

defendant's. See Akinola, 985 F.2d at 1111. Comment Four was not

improper.

Comment Three presents a closer question, but ultimately

we conclude that it, too, was not an improper comment on Glover's

failure to testify and did not impermissibly shift the burden of

proof. Glover argues that Comment Three, "We don't know what those

reasonable doubt.
. . .
A defendant in a criminal case has an absolute right not
to testify. The decision as to whether the defendant
should or should not testify is left to the defendant.
There may be any number of reasons, apart from guilt or
innocence, that may form the basis for a decision by the
defendant not to testify. You must not draw any
inference of guilt or anything else from the fact that
the defendant did not testify.

The court went on to mention at least sixteen times in its
instructions that the government bears the burden of proof.

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other things are," highlighted for the jury Glover's failure to

testify, and suggested that he had the burden to present additional

evidence regarding his left-handedness. Glover had offered the

handwriting evidence in support of his defense theory that he would

not have used his right hand to toss aside a gun, as the government

alleged. The prosecutor's statement was part of his argument that

the handwriting evidence offered only weak support for the defense

theory. The jury would not "naturally and necessarily take it to

be a comment on the failure of the accused to testify," or take it

as an attempt to shift the burden of proof. Wilkerson, 411 F.3d at

9; see also Akinola, 985 F.2d at 1111.

There was no plain error in the remaining comments.

Glover argues that Comment One's suggestion to "turn the question

the other way," (and ask if there is a reason that the prosecution

theory doesn't make sense), together with Comments Two (whether

there was a reason to doubt Marrero's testimony that he saw a tan

object) and Three (that it is unknown what things, other than

writing, Glover preferred to do with his left hand), suggested to

the jury that the question was not what the government has proven

but rather, what the defendant has disproved. That interpretation

stretches the import of the comments too far. The prosecutor was

merely, and permissibly, commenting on the relative plausibility of

Glover's and the government's competing explanations. These

comments cannot be said to have shifted the burden of proof,

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keeping in mind the frequency with which the jury was instructed as

to the meaning of reasonable doubt.

In sum, the prosecutor's statements were not improper,

and therefore we uphold Glover's conviction.

III. Sentencing

A. "Crime of Violence"

Glover argues that the trial court improperly classified

his 1998 Massachusetts conviction for ABDW, Mass. Gen. Laws ch.

265, § 15A(b), as a "crime of violence" under U.S.S.G. §

2K2.1(a)(2). We disagree.

The Sentencing Guidelines define "crime of violence" as:

[A]ny offense . . . punishable by imprisonment
for a term exceeding one year, that -
(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) (emphasis added).3 The residual clause of

section 4B1.2(a)(2), defining "crime of violence" as an offense

3
The Guidelines' definition of "crime of violence" closely tracks
the definition of "violent felony" in the Armed Career Criminal Act
("ACCA"), 18 U.S.C. § 924(e), and the residual clauses in each are
identically worded. We have considered these residual clauses to
be relatively interchangeable, and have treated interpretations of
one as persuasive authority relative to the other. See, e.g.,
Santos, 363 F.3d at 22 n.5; United States v. Meader, 118 F.3d 876,
882 n.8 (1st Cir. 1997); United States v. Bell, 966 F.2d 703, 704-
06 (1st Cir. 1992).

-13-
that "involves conduct that presents a serious potential risk of

physical injury to another," is at issue here.4

We take a categorical approach to classifications of

prior convictions. See Taylor v. United States, 495 U.S. 575, 600

(1990); see also James v. United States, 127 S. Ct. 1586, 1594

(2007). "This approach, depending on [the offense underlying the

prior conviction], has either one or two steps." United States v.

Almenas, 553 F.3d 27, 33 (1st Cir. 2009).

The first step requires a comparison of "the

legislature's definition of the relevant offense with the guideline

definition of a 'crime of violence.'" Id. When making the

comparison, we examine the statutory definition of the offense,

ignoring the particular facts underlying the conviction. Id.;

United States v. Meader, 118 F.3d 876, 882 (1st Cir. 1997); see

also United States v. Giggey, 551 F.3d 27, 38 (1st Cir. 2008). "If

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

necessarily involves each and every element of a violent crime"

then we need not look beyond the statutory definition of the

offense. Williams, 529 F.3d at 4. If, on the other hand, "the

statute's text is broad enough to criminalize both violent and non-

violent conduct," we must take a second step to determine if the

4
The parties have not briefed the issue of whether ABDW might also
be classified as "crime of violence" under a different provision of
U.S.S.G. § 4B1.2(a), and we express no opinion here on the
question.

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

States v. Winter, 22 F.3d 15, 18 (1st Cir. 1994). At this step, we

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

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

Almenas, 553 F.3d at 33.

Additionally, after the Supreme Court's decision in

United States v. Begay, 128 S. Ct. 1581, 1585 (2008), to qualify as

a crime of violence under the residual clause, the offense at issue

must also "(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." Almenas, 553

F.3d at 34; 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." Begay, 128 S. Ct. at 1586 (citation

omitted); Williams, 529 F.3d at 7 (citation omitted).

Here, we agree with the district court that ABDW

qualifies as a crime of violence. And, although Begay was decided

after the district court sentenced Glover, we conclude that Begay's

additional requirements are satisfied.

We start with the statutory definition of ABDW. The

statute applies to an individual who "commits an assault and

battery upon another by means of the dangerous weapon." Mass. Gen.

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Laws ch. 265, § 15A(b); Salemme v. Commonwealth, 348 N.E.2d 799,

802 (Mass. 1976) (recognizing that, in order to secure an ABDW

conviction under § 15A(b) the government must prove that

"intentional force was applied against the victim, and that it was

applied by means of the dangerous weapon."

Because a defendant must employ a "dangerous weapon" to

be convicted of ABDW, it is evident that the offense poses a

serious potential risk of physical injury to another. Although the

phrase "dangerous weapon," is not statutorily defined,

Massachusetts case law recognizes two "types" of dangerous

weapons.5 First, there are instrumentalities that are considered

to be dangerous weapons "per se." These are weapons that are

"designed and constructed to produce death or great bodily harm,"

the classic example being a firearm. Commonwealth v. Appleby, 402

N.E.2d 1051, 1056 (Mass. 1980). Second, there are

instrumentalities that, although not inherently dangerous, are

considered "dangerous as used." Commonwealth v. Sexton, 680 N.E.2d

23, 25 (Mass. 1997) (citing Appleby, 402 N.E.2d at 1057). Given

these definitions of "dangerous weapon," logic dictates that ABDW

ineluctably poses a serious potential risk of physical injury:

either the perpetrator applied force by means of an instrumentality

5
Under the categorical approach, we may look to case-law to define
statutorily undefined terms. See United States v. Mangos, 134 F.3d
460, 463 (1st Cir. 1998).

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designed to produce death or great bodily harm, or applied force

with an instrumentality by using it in a dangerous manner.

Finally, Begay's additional requirements -- that the

offense must pose a degree of risk that is similar to the degree of

risk posed by the enumerated offenses and be similar in kind to

those offenses -- are easily satisfied here. Because a defendant

must employ a dangerous weapon to be convicted of ABDW, the offense

poses a risk of injury comparable to the enumerated offenses. And

ABDW is similar in kind to the enumerated offenses. It is a

purposeful offense, see Commonwealth v. Ford, 677 N.E. 2d 1149,

1152 (Mass. 1997) (ABDW is an intentional crime), that involves

conduct at least as aggressive and violent as the conduct at issue

encompassed by the enumerated crimes. In fact, ABDW is arguably

more aggressive and violent than some of the enumerated crimes

because a defendant, to be guilty of ABDW, must intentionally apply

force to the victim. Compare Salemme, 348 N.E.2d at 802 (ABDW

involves "intentional force . . . applied against the victim"),

with Begay, 128 S.Ct. at 1586 (burglary is "unlawful or

unprivileged entry into a building or other structure," arson is

"causing a fire or explosion with the purpose of destroying a

building," and extortion involves "threat of . . . inflicting

bodily injury") (internal quotation marks and citations omitted).

In contending that ABDW cannot qualify as a crime of

violence, Glover makes essentially two arguments. His first

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argument is based on a line of cases in which we have interpreted

the Massachusetts simple assault and battery statute to include two

distinct crimes: harmful battery and offensive touching. See,

e.g., Fernandez, 121 F.3d at 779; United States v. Harris, 964 F.2d

1234, 1237 (1st Cir. 1992). He argues by extension that ABDW also

encompasses two crimes -- harmful battery with a dangerous weapon

and offensive touching with a dangerous weapon -- and that it would

be incorrect to classify ABDW as a crime of violence, since it can

include a conviction for offensive touching.

This analogy to simple assault and battery is inapposite

for at least one significant reason. ABDW introduces a dangerous

weapon into the equation, and thus the crime is more likely than

simple assault and battery to pose a serious risk of potential

injury to another.

Next, Glover argues that there is a hypothetical scenario

of non-violent conduct that could result in a conviction for ABDW,

and consequently ABDW cannot be, categorically, a "crime of

violence." In particular, Glover points out that a defendant could

be convicted of ABDW for consensual sexual activity involving a

dangerous weapon.6

This argument fails to gain traction. When determining

whether ABDW qualifies as a crime of violence, we are governed by

6
Glover suggests that a shoe could be the dangerous weapon
employed in such activity.

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the Supreme Court's admonishment in James that not "every

conceivable factual offense covered by a statute must necessarily

present a serious potential risk of injury" before the offense can

be classified as a crime of violence. 126 S. Ct. at 1597. Rather,

we are instructed to consider the "ordinary case." Id. Given our

analysis above, we can say with confidence that the ordinary ABDW

offense creates a serious potential risk of injury to another. See

United States v. De Jesus, 984 F.2d 21, 24 (1st Cir. 1993); see

also Giggey, 551 F.3d at 41.7

Because we conclude that ABDW qualifies as a crime of

violence at the first step, we need not examine the charging

documents underlying Glover's ABDW conviction. See United States

v. Leahy, 473 F.3d 401, 411 (1st Cir. 2007).

B. Reasonableness

Glover's second sentencing argument is that the sentence

he received, a variance below the Guidelines range, was

substantively unreasonable because it should have been even further

below the Guidelines range. He bases this argument on his personal

circumstances and on the Guidelines' treatment of his criminal

history.

7
Moreover, even if a defendant had been convicted of ABDW because
he engaged in consensual sexual activity involving a dangerous
weapon, that would not necessarily mean that the defendant's
conduct failed to create a serious potential risk of injury to
another. Sexual activity involving a dangerous weapon, consensual
or not, could still present the requisite risk of injury.

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 In reviewing a sentence for "substantive reasonableness,"

we consider the district court's written statement of reasons, the

district court's oral explanation of the sentence, and implications

that we can fairly draw through a comparison of the PSR's

recommendations and the actual sentence imposed. Martin, 520 F.3d

at 92; see Gall v. United States, 128 S. Ct. at 596 (sentencing

decisions by district courts are reviewed for abuse of discretion,

even when sentence is below Guidelines range.)

Here, the Guidelines range for Glover was 100-120 months.

The court noted its concern about the operation of the Guidelines

in the circumstances of this case. Specifically, the court

observed that by virtue of committing the instant offense, Glover

had violated his supervised release for his 1999 conviction for

distribution of cocaine base. He had been sentenced to 24 months

for the supervised release violation, and at the time of sentencing

for the instant offense he had served 19 months of that term.

Glover received three additional points in his PSR due to the

supervised release violation and his having committed the instant

offense within two years of being released from prison. U.S.S.G.

§ 4A1.1(d)-(e). The sentencing court observed:

The Guidelines are intended to address
problems of recidivism like [this], but in
this particular case, whatever the sentence
that will be imposed on Mr. Glover in this
case will need to take into account that for
this particular act he will have served 19
months already. I have no difficulty in the
abstract with a violation of supervised

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 release being consecutive to the offense of
conviction, but where the violation of
supervised release results in a fairly lengthy
term of imprisonment . . . , I believe the
[Guidelines] sentence is greater than what is
necessary to reflect the seriousness of the
offense, to provide deterrence and to promote
respect for the law and to protect the public.

Nevertheless, given the nature of the crime, a
sentence of some substantial duration is
required, and I think I have such a sentence.8

The district court decided to vary from the Guidelines

and sentenced Glover to 92 months' imprisonment. In the statement

of reasons, the court indicated that it was imposing a sentence

below the Guidelines because of the nature and circumstances of the

offense and the history and characteristics of the defendant, under

section 3553(a)(1).

It is apparent from the district judge's explanation of

the sentence that he carefully considered Glover's arguments about

the time already served for the supervised release violation. As

a result, the court imposed a term of incarceration that was below

the Guidelines range. In view of the sentence and explanation, as

well as the court's statement that it considered the section

8
Glover also claims that his sentence was unreasonable, based on
the Amendment 706 to the Guidelines regarding cocaine base
offenses. He suggests that, were his conviction for distribution
of crack to have occurred after the amendment was adopted, instead
of in 1999, his Guidelines sentence could have been about one year
less than it actually was. That may be true, but we nevertheless
decline to take the next leap: that a lower sentence for that
offense would have altered the calculation of criminal history
points here. More importantly, the instant offense is unrelated to
cocaine base and was thus unaffected by the 2007 amendment.

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3553(a) factors, we conclude that the sentence imposed was

reasonable.

Accordingly, the conviction and sentence are affirmed.

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