United States Court of Appeals
For the First Circuit
No. 10-1588
UNITED STATES,
Appellee,
v.
ROBERT ADAMS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Torruella, Boudin and Lipez,
Circuit Judges.
Timothy G. Watkins, Federal Public Defender, on brief for
appellant.
Kelly Begg Lawrence, Assistant U.S. Attorney, and Carmen M.
Ortiz, United States Attorney, on brief for appellee.
May 9, 2011
Per Curiam. Robert Adams pled guilty to being a felon-
in-possession, in violation of 18 U.S.C. § 922(g)(1), and was
sentenced on April 14, 2010, to 110 months imprisonment. A week
prior, i.e., on April 7, 2010, the U.S. Sentencing Commission had
voted to eliminate the "recency" points assessed by § 4A1.1(e).
That proposed amendment ("Amendment 742") became effective on
November 1, 2010. Amendment 742 is not listed as a retroactive
amendment in § 1B1.10(c). Had Amendment 742 either been effective
as of, or retroactive to, April 14, 2010, Adams's criminal history
category ("CHC") would have been CHC V, instead of CHC VI, and his
guideline sentencing range ("GSR") would have been 100-120 months,
rather than 110-120 months.
Adams concedes that his GSR was properly calculated
pursuant to the guidelines as they existed at the time of his April
14, 2010 sentencing and he also concedes that Amendment 742 is not
retroactive. Nonetheless, Adams argues that his 110 month sentence
is unreasonable and the district court, having been apprised by his
counsel at the sentencing hearing of the Commission's policy
change, abused its discretion in sentencing him based on a GSR that
was only applicable to him due to the addition of "recency" points.
In particular, Adams cites to the district court's remarks that it
gives the guidelines respectful consideration "because they are a
product of careful study, based on extensive, empirical evidence."
Adams points out that the Commission decided to eliminate "recency"
-2-
points precisely because recidivism data demonstrated that there is
no empirical justification for the addition of "recency" points.
We find no abuse of discretion. United States v.
Bunchan, 626 F.3d 29, 35 (1st Cir. 2010) (reciting standard of
review), cert. denied, 131 S.Ct. 1579 (U.S. Feb. 28, 2011) (No. 10-
8537). The district court clearly did not think that Adams's
criminal history was overstated. In denying Adams's request for a
downward variance to 84 months (an issue that Adams does not pursue
on appeal), the court cited to Adams's demonstrated recidivism,
referring to Adams's "persistent and unrelenting criminal conduct"
and the fact that Adams had "proven time and again that you are a
very dangerous and violent criminal who needs to be incarcerated to
protect the public and the potential victims of your crimes." It
recited that Adams had already received a break with respect to the
charging in the case, since Adams could have been charged with a
drug offense and classified as a career offender with a drastically
increased GSR. A career offender criminal history category is CHC
VI. And, the government averred that Adams's resulting GSR as a
career offender would have been 188-235 months. The concern of the
Sentencing Commission that prompted the elimination of § 4A1.1(e)
-- that "recency" points have excessive weight in the determination
of the applicable GSR and only minimally improve the ability of the
criminal history score to predict the defendant's risk of
recidivism -- has little impact in this case. The two "recency"
-3-
points triggered the CHC VI in this case. But Adams could just
have easily been classified as a career offender, triggering the
same CHC VI, demonstrating that CHC VI did not overstate his
criminal history. And, the concern that "recency" points are poor
predictors of a risk of recidivism is simply overshadowed by
Adams's own exhibited history of recidivism.
While Adams correctly notes that we have previously
remanded cases for reconsideration of a sentence in light of a
later amendment to the guidelines that reflected a change in
Commission policy, even where that amendment had not been made
retroactive, we find neither United States v. Godin, 522 F.3d 133
(1st Cir. 2008), nor United States v. Ahrendt, 560 F.3d 69 (1st
Cir. 2009), controlling here. In Adams's case, unlike either Godin
or Ahrendt, the district court was made aware at sentencing of the
proposed guideline amendment and, from aught that appears, the
court was unmoved by the prospect of the elimination of the
"recency" points. The doubt triggering our concern in Godin and
Ahrendt that the district court would reconsider the sentences in
light of the now-revised thinking of the Commission is absent here.
Decisions such as Godin turn in part on a fact specific judgment
that a different result might well be reached on remand in light of
the circumstances in the case. This judgment may not be common but
we think that in the interests of justice the possibility of such
a remand should be preserved.
-4-
Lastly, the several courts of appeals to have considered
the issue have rejected claims of error, substantive
unreasonableness, and/or declined to remand for a district court's
reconsideration of a criminal sentence imposed prior to the
elimination of the guidelines' "recency" points. See United States
v. Ball, 2011 WL 925454 (3d Cir. 2011) (finding sentence was not
substantively unreasonable where district court declined to vary
CHC based on proposed elimination of "recency" points); United
States v. Gonzalez-Molina, 2011 WL 280842 (5th Cir. 2011) (denying
a remand for district court to consider Amendment 742 for a
sentence imposed prior to November 1, 2010); In re Anderson, 2011
WL 240779 (3d Cir. 2011) (denying writs of mandamus and audita
querela to compel district court, pursuant to Amendment 742, to
reduce sentence imposed prior to November 1, 2010); United States
v. Gadsden, 2011 WL 179621 (3d Cir. 2011) (finding no district
court error in assigning recency points under guidelines applicable
at time of sentencing, despite later enactment of Amendment 742),
cert. denied, ___ S.Ct. ___ (U.S. Apr 25, 2011) (No. 10-9782);
United States v. Dennis, 2011 WL 182119 (3d Cir. 2011) (rejecting
claim that sentence was substantively unreasonable where recency
points were added to criminal history score even though later-
enacted Amendment 742 would have lowered criminal history category
had it applied at time of sentencing); United States v. Mitchell,
2010 WL 4069520 (2d Cir. 2010) (same).
-5-
The judgment of the district court entered on April 27,
2010 is affirmed.
-6-