United States v. Goodwin

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit

No. 14-1165

UNITED STATES,

Appellee,

v.

ADAM GOODWIN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Howard, Chief Judge,
Torruella and Barron, Circuit Judges.

Edward S. MacColl and Thompson, Bull, Furey, Bass & MacColl,
LLC, P.A., on brief for appellant.
Margaret D. McGaughey, Appellate Chief, and Thomas E.
Delahanty II, United States Attorney, on brief for appellee.

July 21, 2015
 TORRUELLA, Circuit Judge. Defendant-Appellant Adam

Goodwin pled guilty to conspiracy to possess with intent to

distribute Oxycodone, and to aiding and abetting the commission of

healthcare fraud. He now challenges his 108-month prison sentence

on the grounds that: (1) the four-level role enhancement was

unsupported by the evidence before the district court; (2) his

sentence is unreasonable because of the disparity with other co-

defendants; and (3) he is entitled to a reduction from a post-

sentencing retroactive change in the Sentencing Guidelines.

Finding no errors, we affirm.

I. Background

Because Goodwin's conviction is the result of a guilty

plea, we glean the facts from the plea colloquy, the Presentence

Investigation Report ("PSR"), and the transcripts of the

presentence conference and sentencing hearing. See United States

v. Arbour, 559 F.3d 50, 51 (1st Cir. 2009) (citing United States v.

Graciani, 61 F.3d 70, 72 (1st Cir. 1995). Although Goodwin

objected to several sections of the PSR -- to which reference is

made in this opinion -- the facts relevant to our analysis are not

in controversy.

Early in 2010, Goodwin became involved in a conspiracy to

distribute prescription pain medication, including the controlled

substance Oxycodone. The conspiracy had been orchestrated for

several years by Dr. John Perry, the owner of Atlantic Foot &

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Ankle, a podiatry clinic in Portland, Maine. Dr. Perry devised a

scheme by which he would issue hundreds of prescriptions for a

variety of controlled substances to individuals who had no real

medical need. In the process, Dr. Perry fabricated medical charts

and patient files that contained false information in an effort to

make it appear that those individuals were legitimate patients who

required the medication. Goodwin referred to Dr. Perry at least

some of these false patients. The prescriptions were then filled

at pharmacies throughout southern Maine, and some were paid for

through the Maine Care and Medicare health insurance programs. The

pills were delivered to third parties who would sell them

illegally, and the cash proceeds were in turn delivered to members

of the conspiracy, including Goodwin. Goodwin kept part of the

proceeds to finance a night club that he planned to open in

Westbrook, Maine.

During Goodwin's participation in the conspiracy, between

February and November 2010, Dr. Perry issued at least 150

prescriptions totaling over 10,000 pills to Goodwin, co-defendant

Neil Laverriere, and a group of six other participants. On some

occasions, it was Goodwin who was in charge of delivering cash --

usually $400.00 -- to Dr. Perry in compensation for the

prescriptions.

On November 28, 2012, Goodwin was charged with conspiracy

to possess with intent to distribute Oxycodone in violation of 21

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U.S.C. §§ 841(a)(1) and 846 ("Count 1"), and healthcare fraud in

violation of 18 U.S.C. § 1347 ("Count 2"). Goodwin pled guilty to

both charges on July 29, 2013.

The PSR recommended a base offense level of thirty two

for the drug conspiracy charge and a four-level enhancement for his

aggravating role as an "organizer or leader of a criminal activity

that involved five or more participants," pursuant to section

3B1.1(a) of the United States Sentencing Commission Guidelines

Manual ("USSG"). Goodwin documented his objections to this

recommendation, asserting that he should not receive a four-level

enhancement because "he did not recruit some of the identified

individuals; many of those individuals did not play an active role

in carrying out the instant offense, and their roles were so modest

that they were not charged with committing a crime. . . ."

At the presentence conference, the district judge asked

about Goodwin's objections to the recommendations in the PSR. The

defense counsel explained: "[w]e think that the enhancement is too

high. We are not saying there shouldn't be an enhancement, but

that enhancement is too high." The Government argued that it

favored the four-level enhancement and the district court responded

"It's your burden," signaling that the Government would have to

prove Goodwin's status as an organizer or leader of the conspiracy.

During the sentencing hearing, however, when this issue

arose, the Government presented no evidence of Goodwin's

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participation as an organizer or leader. Yet, the district court

still found that the four-level enhancement was justified. It

calculated the base offense level for Count 1 at thirty two and

added the four levels corresponding to the enhancement, for a total

of thirty six. For Count 2, it found a base offense level of six

and added the same four-level enhancement, for a total of ten.

Because Goodwin accepted responsibility, the district court reduced

the thirty six levels for Count 1, for a total offense level of

thirty three. Given Goodwin's Criminal History Category of III,

the calculation resulted in an advisory Guidelines range of 168 to

210 months. The district court granted the Government's request

for a twenty-five percent downward departure and additionally

issued a downward variance, and sentenced Goodwin to a below-the-

range total term of 108-month imprisonment on each of the counts,

to be served concurrently.

This appeal followed.

II. Discussion

A. The Four-Level Enhancement for Goodwin's Aggravating Role

The aggravating role enhancement of § 3B1.1(a) requires

that the district court find that "the defendant was an organizer

or leader of a criminal activity that involved five or more

participants or was otherwise extensive." USSG § 3B1.1(a). That

is, the district court must make two separate findings: (1) the

scope of the criminal activity involved five or more participants

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or was otherwise extensive; and (2) the status of the defendant was

that of an organizer or a leader of the criminal activity. Arbour,

559 F.3d at 53 (citing United States v. Tejada-Beltrán, 50 F.3d

105, 111 (1st Cir. 1995)). These findings are subject to a

preponderance of the evidence standard. Id. (citing United States

v. Pierre, 484 F.3d 75, 89 (1st Cir. 2007)); see also United States

v. Carrero-Hernández, 643 F.3d 344, 350-51 (1st Cir. 2011).

These scope-and-status determinations supporting the role

enhancement are reviewed for clear error. United States v.

Martínez-Medina, 279 F.3d 105, 123 (1st Cir. 2012) ("We review

role-in-the-offense [enhancements] . . . for clear error.");

Arbour, 559 F.3d at 53; United States v. Colón-Muñoz, 318 F.3d 348,

364 (1st Cir. 2003); see also Tejada-Beltrán, 50 F.3d at 110

("Assessing a defendant's role in the offense is a fact-specific

task, suggesting by its very nature 'that considerable respect be

paid to the views of the nisi prius court.'" (quoting United States

v. McDowell, 918 F.2d 1004, 1011 (1st Cir. 1990))). Such a

conclusion will not be set aside unless we are "left with the

definite and firm conviction that a mistake has been committed" by

the district court. United States v. González-Meléndez, 594 F.3d

28, 35 (1st Cir. 2010) (quoting Arbour, 559 F.3d at 53); see also

United States v. Wright, 873 F.2d 437, 443-44 (1st Cir. 1989)

(explaining the rationale for applying clear error review).

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 As to the district court's scope determination, Goodwin

argues on appeal that while he conceded at the sentencing hearing

that the conspiracy included more than five participants, this does

not mean that he recruited as many as five participants. In order

to meet the scope requirement to support a role enhancement the

district court only needs to find that the criminal enterprise is

extensive or that it included more than five participants. See

United States v. Lucena-Rivera, 750 F.3d 43, 50 (1st Cir. 2014)

(holding that a scope determination only requires finding "'that

the criminal activity met either the numerosity or the

extensiveness benchmarks established by the guideline'" (quoting

Carrero-Hernández, 643 F.3d at 350)); Arbour, 559 F.3d at 53 ("The

disjunctive language of § 3B1.1(a) is important -- a criminal

activity may be extensive even if [it] does not involve five or

more participants.").

Who is considered a member of the conspiracy for purposes

of the numerosity criterion is to be broadly construed, and all

persons involved in the conspiracy -- including outsiders -- can be

counted towards considering the conspiracy "extensive." See id.

(quoting USSG § 3B1.1 cmt. 3). Courts may look beyond the number

of participants to evaluate whether a conspiracy was "extensive" by

considering "the totality of the circumstances, including . . . the

width, breadth, scope, complexity, and duration of the scheme."

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Pierre, 484 F.3d at 89 (quoting United States v. Dietz, 950 F.2d

50, 53 (1st Cir. 1991)).

Based on the broad factors for considering a conspiracy

extensive, the district court did not clearly err in determining

that this conspiracy met the scope requirement under § 3B1.1(a).

According to Goodwin's own counsel's statements at the sentencing

hearing, "the four-point enhancement is a mistake not supported by

the evidence. . . . A two-or three-point enhancement would be

appropriate." He also stated that "[t]his was an ongoing scheme

that involved others over an extended period of time with which Mr.

Goodwin had no involvement." Then, he went on to acknowledge that

"we don't dispute that there were five people involved in this but

that Mr. Goodwin recruited or solicited the participation of five

folks, that is disputed." Based on this and the amended PSR, the

district court found that it was an extensive conspiracy,

"involving . . . more than a hundred prescriptions that were

filled in various pharmacies." Further, the district court

expressly concluded that "this criminal conspiracy . . . involved

five or more individuals and was extensive."

Goodwin claims that the Government's reliance on facts

contained in the PSR, which he timely objected to, is unavailing

because the government did not present additional corroborating

evidence. We note, however, that Goodwin's statements alone

clearly support a finding that this conspiracy either involved five

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or more people, or was extensive. Furthermore, even when a

defendant objects to facts in a PSR, the district court is entitled

to rely on the objected-to facts if the defendant's objections "are

merely rhetorical and unsupported by countervailing proof."

United States v. Prochner, 417 F.3d 54, 66 (1st Cir. 2005) (quoting

United States v. Cyr, 337 F.3d 96, 100 (1st Cir. 2003) (internal

quotation marks omitted). Goodwin admitted to the size of the

conspiracy in his objections to the PSR. His objections can be

reduced to the fact that he did not bring all of the people

mentioned in the PSR into the conspiracy. That is, he admits to

recruiting some but not all five co-conspirators. But, that is

irrelevant to this role enhancement. What matters is that the

conspiracy was extensive or included five or more participants.

Goodwin does not really object to the facts contained in the PSR;

in essence, his argument is that those facts do not trigger the

role-enhancement. Because the test for the scope of the conspiracy

was met, we conclude that the district court did not err. We now

examine Goodwin's claims regarding his status an organizer or

leader.

As to the status determination, Goodwin argues that he

did not design or engineer the illegal scheme, which was simply

presented to him, and that he did not coerce others into joining

the conspiracy. Admitting that he did invite others to join the

conspiracy and gave their names to Dr. Perry to issue prescriptions

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or create false records, he concedes that he "did ask some others

to lend their names and play a role." But, since imposing the

aggravating role enhancement requires a factual record, and the

Government failed to provide any evidence during the sentencing

hearing, Goodwin claims that there exists no evidence to support

the conclusion that he was an organizer or leader. As we explain

below, Goodwin's own admissions provided sufficient evidence on

which the district court could base its determination.

Goodwin argues that the district court did not make

adequate findings concerning his control over the conspiracy so as

to allow appellate review; and his "role" -- as reflected by the

record and even as described by the Government -- simply did not

involve the required degree of control.1 However, the inquiry over

a defendant's role in the conspiracy as an organizer or leader

requires an analysis of many factors, including:

the exercise of decision making authority, the nature of
participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a larger
share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the

1
In his Reply Brief, Goodwin stresses that Lucena-Rivera
established a requirement for an "element of control" over other
members of the conspiracy that he never had. Lucena-Rivera, 750
F.3d at 50. However, whether there was an "element of control"
over other co-conspirators is met as further explained therein.
Id. ("[I]t is not enough that the defendant merely controlled,
organized, or managed criminal activities[; he] must instead
control, organize, or manage criminal actors." (alteration in
original) (emphases added) (quoting United States v. Jones, 523
F.3d 31, 43 (1st Cir. 2008))).

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 nature and scope of the illegal activity, and the degree
of control and authority exercised over others.

USSG § 3B1.1(a) cmt. n.4. And, when evaluating these, "there need

not be proof of each and every factor before a defendant can be

termed an organizer or leader." United States v. Rivera Calderón,

578 F.3d 78, 103 (1st Cir. 2009) (quoting Tejada-Beltrán, 50 F.3d

at 111); Tejada-Beltrán, 50 F.3d at 111 ("This list is intended to

be representative rather than exhaustive." (citing United States v.

Talladino, 38 F.3d 1255, 1260 (1st Cir. 1994)). Indeed, "the

guideline commentary makes plain that a defendant needs only to

have led or organized one criminal participant, besides himself of

course, to qualify as a leader or organizer under § 3B1.1(a)."

Arbour, 559 F.3d at 56 (emphasis in original). But there is no

need for a leadership role in the sense of having "some degree of

dominance or power in a hierarchy . . . . One may be classified as

an organizer, though perhaps not as a leader, if he coordinates

others so as to facilitate the commission of criminal activity."

Tejada-Beltrán, 50 F.3d at 112 (citing United States v. Rodríguez

Alvarado, 985 F.2d 15, 20 (1st Cir. 1993)). Thus, a defendant who

brings others into the criminal organization can be "the very

prototype of an organizer, serving as a magnet to bring others

together and thereby lend feasibility to the commission of the

crime." Id. at 113.

There can also be more than one member of a conspiracy

who qualifies as a leader or organizer, and "the mere fact that

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someone was [subordinate] to a conspirator does not establish,

without more, that the defendant was not an organizer or leader."

United States v. Appolon, 695 F.3d 44, at 71 (1st Cir. 2012)

(alterations omitted) (internal quotation marks omitted) (quoting

United States v. Casas, 356 F.3d 104, 109 (1st Cir. 2004)).

Here, Goodwin argues that the only claim made by the

Government related to his control over other participants was that

he provided names to Dr. Perry and that he asked those persons to

visit Dr. Perry for him to generate fake medical charts in their

names. He further asserts that to ask someone to "take a step" is

not the same as having "control" over that person. Again,

Goodwin's arguments on appeal are wrong in light of his admissions

before the district court. At the sentencing hearing, Goodwin

conceded that "he did ask some others to lend their names and play

a role." His argument at that hearing was that, in terms of the

hierarchy of the conspiracy, there were others with more

involvement and control. His attorney also explained that

Dr. Perry approached someone known to Goodwin and Goodwin got

involved when he saw this as an easy financial opportunity, but

Goodwin was not the leader. As to Goodwin's involvement in

bringing people into the conspiracy he added that "[m]any

participants who Mr. Goodwin did ask to be involved weren't

prosecuted at all." Finally, when Goodwin spoke at the sentencing

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hearing he added that he "did ask others to be involved and I

regret that."

According to the amended PSR, there were at least eight

other individuals on whose names Dr. Perry issued prescriptions

during the conspiracy and it was Goodwin who "recruited most of

these individuals." His specific objection to that language --

included in the PSR -- reads "[Goodwin] did not recruit some of the

identified individuals; many of those individuals did not play an

active role in carrying out the instant offense, and their roles

were so modest that they were not charged with committing a crime."

Because the status determination only requires that the

defendant served as an organizer of only one other participant,

which in turn includes bringing people into the conspiracy, the

fact that other participants had a higher degree of control over

the criminal enterprise does not help Goodwin. Thus, we do not

find clear error in the district court's determination that Goodwin

was an organizer of this conspiracy. See United States v. Díaz-

Díaz, 433 F.3d 128, 138-39 (1st Cir. 2005) (finding organizer

enhancement under § 3B1.1(a) for a defendant that recruited two

people into the conspiracy); see also United States v. Olivier-

Díaz, 13 F.3d 1, 5 (1st Cir. 1993).

B. The Sentence is Reasonable Despite Disparities

As a second issue on appeal, Goodwin argues perfunctorily

that he is entitled to resentencing because his co-conspirators

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received shorter sentences. Goodwin claims that 18 U.S.C.

§ 3553(a)(6) requires the court to consider "the need to avoid

unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct . . . ." He

asks for an even wider downward variance from his below-Guidelines

sentence (which the district court already both departed and varied

downward for a total reduction of sixty months from his

corresponding range) because the district court imposed upon him a

higher sentence compared to other allegedly more culpable

defendants, including Dr. Perry. Furthermore, Goodwin's sentence,

he adds, is unreasonable because it is three-times higher than co-

defendant Mr. Laverriere's -- who actually filled the illegal

prescriptions, sold the drugs to a third party who then sold them

on the street, and collected the cash.

We review the substantive reasonableness of a criminal

sentence for abuse of discretion. United States v. Trinidad-

Acosta, 773 F.3d 298, 308-09 (1st Cir. 2014). In doing so, we

first ask whether there were any procedural flaws in the

sentencing, and then determine whether there are any substantive

concerns.2 United States v. Vega-Salgado, 769 F.3d 100, 103 (1st

2
Goodwin's arguments seem only intended to be a substantive
challenge predicated on the disparity with his co-conspirators. In
any event, the district court did not commit any procedural errors,
such as "failing to calculate [] 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

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Cir. 2014). Avoiding disparities between co-defendants may be

considered in analyzing the reasonableness of a sentence, but "a

party is not entitled to a lighter sentence merely because his co-

defendants received lighter sentences". United States v. Dávila-

González, 595 F.3d 42, 50 (1st Cir. 2010) (quoting United States v.

Wallace, 573 F.3d 82, 97 (1st Cir. 2009) (internal quotation marks

omitted)). Instead, "[w]e afford the district court 'wide

discretion' in sentencing decisions." Wallace, 573 F.3d at 97

(quoting United States v. Marceau, 554 F.3d 24, 33 (1st Cir. 2009).

The district judge detailed his grounds for the

sentencing determinations. He explained that he took "into account

the written presentence investigation report, everything I've heard

from counsel today, the evidence presented at this hearing, all of

the written submissions made by the defendant, the Government's

motion for a [§ 5K.1] with supporting information, and obviously

the allocution of this defendant." Then, he explained the

Guidelines range calculation, to which the defense assented.

Notably, the district court also stated that it considered all the

factors from § 3553(a), "most important in this case the nature and

circumstances of the offense, the history of the defendant, the

seriousness of this offense, the need for just punishment and the

need for deterrence." Additionally, the district court considered

explanation for any deviation from the Guidelines range."
Trinidad-Acosta, 773 F.3d at 309 (quoting United States v. Rivera-
Moreno, 613 F.3d 1, 8 (1st Cir. 2010).

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the "scourge of Oxycontin addiction in the state of Maine," the

"motivation of the defendant," and Goodwin's considerable criminal

record "involving some issues of violence and [Goodwin's]

noncriminal arrests, many of them involving assaults, [which

resulted in] accusations but not convictions . . . but [are

nonetheless] troubling." After considering those factors, the

district court still granted the Government's request for a twenty

five percent downward departure, and the court further varied

downwards from the Guidelines range and reached the 108-month

prison sentence it imposed.

A sentence is found to be substantively reasonable if it

is based on a "plausible sentencing rationale and [is] a defensible

result." United States v. Pol-Flores, 644 F.3d 1, 4-5 (1st Cir.

2011) (quoting United States v. Martin, 520 F.3d 87, 96 (1st Cir.

2008)). When a sentence falls within the Guidelines, a defendant

challenging it must "carry a heavy burden." United States v.

Maisonet-González, 785 F.3d 757, 762 (1st Cir. 2015) (quoting

United States v. Battle, 637 F.3d 44, 51 (1st Cir. 2011)). But,

for a sentence that is below-the-range to be found unreasonable is

even rarer. See United States v. Merritt, 755 F.3d 6, 12 (1st Cir.

2014); United States v. Madera-Ortiz, 637 F.3d 26, 30 (1st Cir.

2011) (holding that an appellant's argument must "adduce fairly

powerful mitigating reasons" to persuade the court of appeals that

the discretion afforded to the district court was abused) (quoting

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United States v. Navedo-Concepción, 450 F.3d 54, 59 (1st Cir.

2006))). This burden is to be analyzed based on the totality of

the circumstances. Rivera-Moreno, 613 F.3d at 8 (citing Gall v.

United States, 552 U.S. 38, 51 (2007)).

Looking at the totality of the circumstances, the

district court did not abuse its discretion in this analysis.

Goodwin's below-the-range sentence is substantively reasonable. He

challenges his sentence because of the disparity against his co-

conspirators, but the district court compared his personal factors,

including his extensive criminal record -- which the court

expressly recognized contained non-charged offenses -- as well as

the rest of the § 3553(a) factors. In so doing, the court issued

a sentence that is both plausible and defensible. Furthermore,

Goodwin does not show why his co-defendants were "identically

situated" to him. See Wallace, 573 F.3d at 97. The principle

behind avoiding disparities is to minimize disparities among

defendants nationally, not among co-defendants. United States v.

Torres-Landrúa, 783 F.3d 58, 69 (1st Cir. 2015) (quoting Dávila-

González, 595 F.3d at 49.

C. The Post-Sentencing Retroactive Amendment to the Sentencing
Guidelines

Goodwin's third and final argument is that we should

remand this case so that his sentence can take into account

Amendment 782 to the Sentencing Guidelines, which became effective

on November 1, 2014, and retroactively reduced most drug quantity

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base offense levels by two levels. See USSG App. C Supp.,

Amendment 782 (Nov. 1, 2014). According to 18 U.S.C. § 3582(c)(2)

"[d]istrict courts 'may' reduce prison terms if the defendant's

sentence was 'based on a sentencing range that has subsequently

been lowered by the Sentencing Commission . . . if such a reduction

is consistent with applicable policy statements issued by the

Sentencing Commission.'" United States v. Alejandro-Montañez, 778

F.3d 352, 362 (1st Cir. 2015) (quoting 18 U.S.C. § 3582(c)(2)).

The Sentencing Commission made this amendment retroactive, provided

that no potential sentencing reduction takes effect before November

1, 2015. See id. (citing USSG § 1B1.10(a)(1)). The Government

responds that we need not grant this request since Goodwin can file

a motion seeking that relief from the district court directly. It

adds that there is no need for an immediate ruling on this issue

because any relief granted by the district court will not be

effective until November 1, 2015.

We note that the district court attempted to initiate --

on its own motion -- the sentence modification proceedings allowed

under 18 U.S.C. § 3582(c)(2), but opted against continuing when

Goodwin filed a motion stating that it should wait until this

appeal was resolved. While the district court lacks the authority

to act on a § 3582(c)(2) motion during the pendency of an appeal,

once a mandate issues that bar is removed. See United States v.

Maldonado-Ríos, --- F.3d ---, 2015 WL 3652600 at *2 (1st Cir. June

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15, 2015). Accordingly, remand is not required. Upon issuance of

the mandate, the district court will be free to determine what, if

any, modification to Goodwin's sentence may be appropriate in light

of Amendment 782.

III. Conclusion

For the foregoing reasons, the judgment of the district

court is affirmed.

AFFIRMED.

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