United States v. Frates

United States Court of Appeals
For the First Circuit

No. 16-1933

UNITED STATES OF AMERICA,

Appellee,

v.

DAVID A. FRATES,

Defendant, Appellant.

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

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Torruella, Lipez, and Kayatta,
Circuit Judges.

Ian Gold, on brief for appellant.
Mark T. Quinlivan, Assistant United States Attorney, and
William D. Weinreb, Acting United States Attorney, on brief for
appellee.

July 18, 2018
 LIPEZ, Circuit Judge. Appellant David Frates pleaded

guilty to one count of federal armed bank robbery, in violation of

18 U.S.C. § 2113(a) & (d). At his sentencing hearing, the district

court applied the United States Sentencing Guidelines' career

offender enhancement, increasing Frates's guideline sentencing

range to 188-235 months' imprisonment. The court varied downward

and sentenced Frates to 132 months' imprisonment.

Frates appeals this sentence, challenging his

classification as a career offender, and alternatively asking us

to vacate his sentence in light of a recently enacted amendment to

the Guidelines. We find no error with the district court's

application of the Guidelines. Nonetheless, we exercise our

discretion under United States v. Godin (Godin II), 522 F.3d 133

(1st Cir. 2008), and United States v. Ahrendt, 560 F.3d 69 (1st

Cir. 2009), to vacate Frates's sentence and remand to allow the

district court to consider the United States Sentencing

Commission's current policy position on who qualifies as a career

offender.

I.

This case arises at a peculiar moment in the history of

the Sentencing Guidelines' career offender enhancement. That

enhancement increases the sentencing ranges of certain defendants

whose offense of conviction was "either a crime of violence or a

controlled substance offense," and who have at least two such prior

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convictions. U.S. Sentencing Guidelines Manual § 4B1.1 (2016).

At the time of Frates's sentencing in July 2016, the Guidelines

defined the term "crime of violence" as follows:

The term "crime of violence" means any offense
under federal or state law, 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.

Id. § 4B1.2(a) (2015). Subsection (1) of this definition is known

as the "force clause," the segment of subsection (2) listing

specific crimes is known as the "enumerated offenses clause," and

the segment of subsection (2) beginning with "otherwise involves"

is known as the "residual clause." See, e.g., United States v.

Wurie, 867 F.3d 28, 31, 36 (1st Cir. 2017); United States v.

Ramírez, 708 F.3d 295, 300 (1st Cir. 2013). The commentary to

section 4B1.2 further specified a number of offenses that

sentencing courts "essentially treat[ed] . . . as additional

enumerated offenses." United States v. Ball, 870 F.3d 1, 5 (1st

Cir. 2017); U.S. Sentencing Guidelines Manual § 4B1.2, cmt. n.1

(2015) (listing, for example: murder, kidnapping, aggravated

assault, and robbery).

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 The Guidelines' "crime of violence" definition mirrored

the Armed Career Criminal Act's ("ACCA") definition of "violent

felony." 18 U.S.C. § 924(e)(2)(B). The ACCA imposes a mandatory

minimum 15-year term of imprisonment on any person convicted of

being a felon in possession of a firearm who has three prior

violent felony convictions. Id. §§ 922(g), 924(e)(1). Its

definition of "violent felony" includes a force clause, an

enumerated offenses clause, and a residual clause, all materially

identical to the Guidelines' crime of violence definition. Id.

§ 924(e)(2)(B).

In June 2015, the Supreme Court held that the residual

clause of the ACCA's violent felony definition was

unconstitutional. Johnson v. United States, 135 S. Ct. 2551, 2563

(2015). It reasoned that "the indeterminacy of the wide-ranging

inquiry required by the residual clause both denies fair notice to

defendants and invites arbitrary enforcement by judges." Id. at

2557. Sentencing judges interpreting the residual clause faced

"grave uncertainty" about how to estimate the risk of injury

involved in a crime, and also what level of risk sufficed to

qualify a crime as a violent felony. Id. at 2257-58. These

vagaries were more than the strictures of due process could

tolerate: "Invoking so shapeless a provision to condemn someone to

prison for 15 years to life does not comport with the

Constitution's guarantee of due process." Id. at 2560.

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 Not surprisingly, in the wake of Johnson, there were

challenges to the constitutionality of the Guidelines' crime of

violence definition. Most of the circuit courts to address the

issue held that section 4B1.2(a)'s identically-worded residual

clause was unconstitutionally vague. See United States v.

Hurlburt, 835 F.3d 715 (7th Cir. 2016); United States v.

Calabretta, 831 F.3d 128 (3d Cir. 2016); United States v. Pawlak,

822 F.3d 902 (6th Cir. 2016); United States v. Madrid, 805 F.3d

1204 (10th Cir. 2015). But see United States v. Matchett, 802

F.3d 1185 (11th Cir. 2015). In the First Circuit, the government

routinely took the position that Johnson's reasoning extended to

the crime of violence definition, and conceded that section

4B1.2(a)'s residual clause was void. See, e.g., Ball, 870 F.3d at

3 (1st Cir. 2017); United States v. Thompson, 851 F.3d 129, 131

(1st Cir. 2017).

This "ongoing litigation and uncertainty resulting from

the Johnson decision" prompted the United States Sentencing

Commission to adopt an amendment eliminating the residual clause

from the crime of violence definition. U.S Sentencing Guidelines

Manual supp. to app. C, Amend. 798. The amendment also moved some

of the offenses listed in the commentary to section 4B1.2 into the

body of section 4B1.2(a)(2). Id. Amendment 798 took effect on

November 1, 2016 -- a few months after Frates's sentencing -- and

the Commission declined to make the amendment retroactive. See

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Wurie, 867 F.3d at 35 n.7 (noting that the Commission chose to not

make Amendment 798 retroactive).

Four months after Amendment 798 took effect, the Supreme

Court rejected a void-for-vagueness challenge to the crime of

violence definition's residual clause. Beckles v. United States,

137 S. Ct. 886, 890 (2017). Distinguishing Johnson, the Court

explained that the ACCA "fix[ed] the permissible sentences for

criminal offenses," while the Guidelines "merely guide the

exercise of a court's discretion in choosing an appropriate

sentence within the statutory range." Id. at 892. Since the

Guidelines are discretionary, they are "not amenable to a vagueness

challenge," and thus "§ 4B1.2(a)'s residual clause is not void for

vagueness." Id. at 894-95.

The result in Beckles creates a quirk for defendants (1)

sentenced pursuant to section 4B1.2(a)'s residual clause prior to

Amendment 798, and (2) whose appeals were pending when the

amendment became effective. Although stricken by the Sentencing

Commission, the residual clause remains valid as applied to them.

Hence, they will be the last group subjected to the disfavored --

yet constitutional -- residual clause. This is the context in

which Frates appeals his sentence.

II.

Frates asserts that neither his offense of conviction

nor his prior convictions qualify as crimes of violence. As to

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his present conviction for federal armed bank robbery, he suggests

that the crime does not fit within the force clause, and that we

should remand to give the district court the opportunity to

determine in the first instance whether the residual clause covers

the crime. Regarding his prior convictions, he argues that his

four Massachusetts unarmed robbery convictions do not count as

crimes of violence under any of section 4B1.2(a)'s clauses, leaving

him without the two requisite crimes of violence necessary to

trigger the career offender enhancement. We address these

contentions in turn.

A. Frates's Offense of Conviction

It is axiomatic that in determining whether a crime fits

within the force clause, we look to the elements that comprise the

offense, rather than the defendant's conduct in committing the

crime. See, e.g., United States v. Ramos-González, 775 F.3d 483,

504 (1st Cir. 2015). This analysis involves taking a "categorical

approach" and determining whether the elements of the defendant's

crime of conviction necessarily require the use, attempted use, or

threatened use of physical force against another person. See,

e.g., United States v. Martinez, 762 F.3d 127, 133 (1st Cir. 2014).1

1We employ a "modified categorical approach" when the statute
sets forth alternative elements of a crime, some of which are
broader than the crime of violence definition. See Descamps v.
United States, 570 U.S. 254, 257 (2013); Ramos-González, 775 F.3d
at 505. This approach allows us to consult a limited set of
judicial records to determine which set of elements provided the

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An offense qualifies as a crime of violence under the force clause

only if "the least serious conduct encompassed by the elements of

the offense" involves the requisite physical force. United States

v. Ellison, 866 F.3d 32, 35 (1st Cir. 2017).

The federal armed bank robbery statute, in relevant

part, penalizes "[w]hoever, by force and violence, or by

intimidation, takes, or attempts to take, . . . any property or

money . . . belonging to . . . any bank . . . ," and who, in

committing such an offense, "assaults any person, or puts in

jeopardy the life of any person by the use of a dangerous weapon

or device." 18 U.S.C. § 2113(a) & (d). Frates argues that this

offense can be committed without the use, attempted use, or

threatened use of physical force. He believes that "intimidation"

does not require force, and imagines that a robber could use

poison, or withhold medication, to accomplish the crime without

employing force. He further asserts that the force clause requires

an intent mens rea, and that intimidation can be accomplished

unintentionally.

basis for the defendant's conviction. Ramos-Gonzalez, 775 F.3d at
505; see also Shepard v. United States, 544 U.S. 13, 26 (2005)
(listing the charging document, plea agreement, plea transcript,
and "comparable judicial record[s]" as permissible documents).
The parties agree that we should employ the categorical approach,
and we accept their position without deciding the issue. See
United States v. Starks, 861 F.3d 306, 317 (1st Cir. 2017).

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 Shortly after Frates filed his opening brief staking out

these positions, we rebuffed identical arguments in Ellison, 866

F.3d at 36-38. The defendant in Ellison argued that his conviction

for federal unarmed robbery did not qualify as a crime of violence

under the force clause. Id. at 34. We squarely rejected his

argument, concluding that section 2113(a) "requires proving that

a threat of bodily harm was made." Id. at 37. In doing so, we

specifically spurned the "threat to poison or to withhold vital

medicine" hypotheticals also offered here by Frates. Id. We

likewise rebuffed the same mens rea argument raised by Frates,

finding that section 2113(a) "does have an implicit mens rea

element of general intent -- or knowledge -- as to the actus reus

of the offense." Id. at 39.

Ellison thus undermines Frates's assertion that federal

armed bank robbery does not require the use, attempted use, or

threatened use of force. Indeed, a conviction for federal unarmed

bank robbery -- at issue in Ellison -- is a lesser included offense

to federal armed bank robbery. See United States v. Spinney, 65

F.3d 231, 235 n.3 (1st Cir. 1995). As we are bound by this prior

panel decision, e.g., Wurie, 867 F.3d at 34, we need not probe the

matter further: federal armed bank robbery is a crime of violence

under section 4B1.2(a)'s force clause.

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B. Frates's Prior Convictions

The Massachusetts statute criminalizing unarmed robbery

provides:

Whoever, not being armed with a dangerous
weapon, by force and violence, or by assault
and putting in fear, robs, steals or takes
from the person of another, or from his
immediate control, money or other property
which may be the subject of larceny, shall be
punished by imprisonment in the state prison
for life or for any term of years.

Mass. Gen. Laws ch. 265, § 19(b). The government concedes that

Frates's unarmed robbery convictions do not qualify as crimes of

violence under the force clause and the enumerated offenses clause.

Indeed, it acknowledges our holding in Starks that Massachusetts

unarmed robbery does not qualify under the ACCA's force clause,

861 F.3d at 319-20, and admits that the enumerated offense of

"robbery" does not encompass the crime, see U.S. Sentencing

Guidelines Manual § 4B1.2, cmt. n.1 (2015). Thus, we assess only

whether the convictions qualify as crimes of violence under the

prospectively defunct, but retrospectively applicable, residual

clause.

Our precedent compels us to conclude that Massachusetts

unarmed robbery is a crime of violence under the residual clause.

In United States v. De Jesus, we held that the Massachusetts

offense of larceny from the person qualified as a crime of violence

under the residual clause. 984 F.2d 21, 22 (1st Cir. 1993).

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Massachusetts classifies larceny from the person as a lesser

included offense of unarmed robbery. See Commonwealth v. Glowacki,

499 N.E.2d 290, 294 (Mass. 1986); Commonwealth v. Sheppard, 537

N.E.2d 583, 585 (Mass. 1989). Hence, Massachusetts unarmed robbery

is necessarily a crime of violence under the residual clause.

Frates urges us to abandon this otherwise

straightforward analysis and overrule De Jesus. He argues that De

Jesus was based on the "ordinary case" method for determining

whether an offense fits within the residual clause, and that

Johnson rendered that methodology invalid. We disagree.

Under the ordinary case method, we assess whether the

elements of the crime, in the ordinary case, "(1) present a risk

of physical injury similar to the risk presented by the clause's

enumerated offenses and (2) [are] similar 'in kind' to those

offenses." United States v. Holloway, 630 F.3d 252, 260 (1st Cir.

2011) (quoting United States v. Giggey, 551 F.3d 27, 41-42 (1st

Cir. 2008) (en banc)); see also Ramírez, 708 F.3d at 305 (applying

the ordinary case method). Although Johnson was critical of this

approach, see 135 S. Ct. at 2557-58, we recently rejected the

contention that the Court's criticism in the ACCA context allows

us to overrule prior decisions applying the ordinary case method

to section 4B1.2(a)'s residual clause. In Wurie, the defendant

asked us to reconsider our holding in United States v. Glover, 558

F.3d 71, 80 (1st Cir. 2009), that Massachusetts assault and battery

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with a dangerous weapon was a crime of violence under the residual

clause. 867 F.3d at 32. We explained that Johnson did not

"necessarily reject[] the 'ordinary case' analysis in all of its

applications." Id. at 35. Rather, the Court's criticism of that

methodology was "only one part of its conclusion as to why the

residual clause of the ACCA was unconstitutionally vague." Id. at

34. Since the Court later declined to extend Johnson's holding to

the crime of violence residual clause, Beckles, 137 S. Ct. at 890,

we were "not persuaded that Johnson 'offers a sound reason for

believing' that the panel in Glover 'would change its collective

mind' in light of Johnson." Wurie, 867 F.3d at 35 (quoting United

States v. Rodríguez, 527 F.3d 221, 225 (1st Cir. 2008)).

Wurie thus undermines Frates's attempt to rely on

Johnson to circumvent De Jesus. Instead, De Jesus remains

controlling, and requires us to conclude that Massachusetts

unarmed robbery is a crime of violence under the residual clause.

As both Frates's offense of conviction and his prior unarmed

robbery convictions were crimes of violence under the version of

the Guidelines applicable at the time of his sentencing, the

district court did not err in applying the career offender

enhancement.2

2The district court also concluded that Frates's prior
conviction for Massachusetts breaking and entering was a crime of
violence. Frates did not appeal this decision.

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 III.

Once we have concluded that a district court did not err

in sentencing a defendant, it is ordinarily the end of the matter.

In a narrow category of cases, however, we have discretion to

vacate a correctly imposed sentence and remand to allow the

sentencing court to consider the United States Sentencing

Commission's revised policy positions, as demonstrated by its

subsequent amendment of the Guidelines. For the reasons detailed

below, this is precisely the type of case in which exercising that

discretion is warranted.

A. The Godin/Ahrendt Doctrine

Our discretion to remand in such situations derives from

a pair of cases involving Amendment 709 to the Guidelines. Godin

II, 522 F.3d at 133; Ahrendt, 560 F.3d at 69. Amendment 709

"restat[ed] the rules for determining when multiple crimes are

counted as one for criminal history purposes." Godin II, 522 F.3d

at 135; see also U.S. Sentencing Guidelines supp. to app. C, Amend.

709 (2007). Prior to that amendment, the First Circuit treated

crimes for which the sentence was imposed on the same date as

separate offenses if they were not part of a common scheme or plan,

or were not consolidated for trial or sentencing. See, e.g.,

United States v. Godin (Godin I), 489 F.3d 431, 434-35 (1st Cir.

2007); United States v. Correa, 114 F.3d 314, 317 (1st Cir. 1997).

Amendment 709 rendered this approach obsolete by specifying that

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offenses committed without an intervening arrest are treated as a

single sentence when the sentences were imposed on the same day.

See U.S. Sentencing Guidelines supp. to app. C, Amend. 709 (2007);

U.S. Sentencing Guidelines Manual § 4A1.2(a)(2) (2007). The

amendment went into effect on November 1, 2007, after Godin and

Ahrendt were sentenced but before their appeals were final.3 See

Godin II, 522 F.3d at 134-35; Ahrendt, 560 F.3d at 78-79. Since

the Sentencing Commission did not make Amendment 709 retroactive,

the amendment would not ultimately change either defendant's

guideline sentencing range. See Godin II, 522 F.3d at 134-35

(noting that Amendment 709 was not retroactive).

Nonetheless, we vacated and remanded both of their

sentences to give the district courts the opportunity to weigh the

Sentencing Commission's revised policy as a discretionary factor

in imposing sentence. Under the Commission's changed thinking,

Godin and Ahrendt would have been subject to significantly lower

guideline ranges. Godin had two prior burglary convictions for

which she was sentenced on the same date. Id. at 134. Counting

these offenses as a single sentence would have removed her from

the career offender category and decreased her guideline

3More specifically, Godin was sentenced in April 2006, we
first decided her appeal in June 2007, and we adjudicated her
petition for rehearing in April 2008. Godin II, 522 F.3d at 133-
34. Ahrendt was sentenced in January 2006 and we resolved his
appeal in March 2009. Ahrendt, 560 F.3d at 73.

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sentencing range from 262-327 months' imprisonment to 121-130

months. Id. Ahrendt had committed three offenses in the same

week, and he was sentenced for those crimes on the same date.

Counting his offenses as a single sentence would have decreased

his guideline range from 210-262 months' imprisonment to 168-210

months. See Ahrendt, 560 F.3d at 73; U.S. Sentencing Guidelines

Manual § 5A (2005) (Sentencing Table).

Our decisions to vacate and remand in those cases were

animated by two principal factors. The first involved the posture

of the cases and the manner in which the Sentencing Commission

chose to amend the Guidelines. In Godin II, we explained that

"the posture of this case is peculiar: the amendment is not

applicable retroactively, but neither has the pending appeal yet

resulted in a final disposition." 522 F.3d at 135. The non-

finality of Godin's sentence interacted with Amendment 709 to

produce a procedural inequity. Amendment 709 would not alter

Godin's guideline range because the amendment substantively

changed the Guidelines and applied only prospectively. Id.

However, if the Sentencing Commission had instead issued a

clarifying amendment -- one that is "purely expository," United

States v. Cabrera-Polo, 376 F.3d 29, 32 (1st Cir. 2004) -- we could

have chosen to "alter our own prior reading of [the] newly

clarified guideline" on appeal, and given Godin the benefit of the

lower guideline range. Godin II, 522 F.3d at 135. Thus, without

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a remand to allow the district court to consider the Commission's

revised policy, Godin would have been "irremediably worse off

because the Commission went further in her direction" by

substantively revising the offending provision of the Guidelines

instead of issuing a "mere clarification." Id. at 136.

The second factor that led us to vacate and remand in

Godin and Ahrendt was the discretionary nature of the federal

sentencing regime after United States v. Booker, 543 U.S. 220

(2005). Under federal sentencing procedures post-Booker, district

courts begin by calculating a defendant's guideline sentencing

range. See, e.g., Molina-Martinez v. United States, 136 S. Ct.

1338, 1345 (2016). This range is merely advisory. See Booker,

543 U.S. at 245. Courts then exercise their discretion to select

a sentence -- either inside or outside of the advisory guideline

range -- that is "sufficient, but not greater than necessary" to

fulfill certain sentencing objectives. 18 U.S.C. § 3553(a). Godin

and Ahrendt recognized that the Commission's current policy

positions may be relevant at this second, discretionary, step of

a district court's sentencing procedures, even when a non-

retroactive amendment prevents the district court from altering

the advisory guideline range calculated at the first step. See

Godin II, 522 F.3d at 136; Ahrendt, 560 F.3d at 79.

Three more recent cases provide guidance on when we will

choose to exercise our discretion under the Godin/Ahrendt

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doctrine. The defendant in United States v. Matos, 611 F.3d 31

(1st Cir. 2010), asked us to vacate his sentence and remand to

allow the district court to consider Amendment 709. Distinguishing

Godin II and Ahrendt, we explained that "it was evident" in those

cases "that if the Guidelines as amended . . . had been in effect

at the time of the defendant's sentencing," the defendant would

have been subjected to a lower sentencing range. Id. at 39.

However, it was "far from clear" that Amendment 709 would have had

any effect on Matos's sentence. Id. The district court would

have had to "engage in fact-finding to determine whether the

Amendment applie[d]." Id. Given the complexity of the district

court's task on remand, we "conclude[d] that Godin and Ahrendt

[did] not advocate in favor of remanding for resentencing." Id.

at 39-40.

We recently applied this reasoning from Matos in a case

involving Amendment 798. In Wurie, we explained that it was

unclear whether the defendant would have benefitted from the

intervening amendment. 867 F.3d at 36. On remand, the district

court would have had to consider whether "at least two of Wurie's

prior offenses . . . qualify as crimes of violence under the force

clause." Id. This analysis would have been "much more

complicated" than the "simple mechanistic change" involved in

Godin II and Ahrendt. Id. at 36-37. We accordingly declined to

vacate the defendant's sentence and remand for resentencing.

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 Lastly, we ordinarily will not use our discretion under

the Godin/Ahrendt doctrine when the district court was aware of

the proposed amendment at the time of the initial sentencing. See

United States v. Adams, 640 F.3d 41, 43 (1st Cir. 2011). The

court's awareness of the amendment extinguishes 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." Id.

Godin II and Ahrendt thus establish a narrow doctrine

that gives us discretion to vacate a defendant's sentence and

remand when: (i) the Sentencing Commission adopts a substantive,

non-retroactive amendment to the Guidelines; (ii) the amendment is

adopted before the defendant's sentence becomes final on appeal;

and (iii) the amendment would have lowered the defendant's

guideline range if it had been in effect at the initial sentencing.

However, we will ordinarily not exercise our discretion under

Godin/Ahrendt when the district court's analysis on remand would

be complex, or when the district court was aware of the amendment

during the initial sentencing.

If we do remand a case pursuant to the Godin/Ahrendt

doctrine, the district court is prohibited from recalculating the

defendant's guideline range in light of the intervening amendment,

lest it circumvent the Sentencing Commission's non-retroactivity

determination. It may, however, consider the Commission's revised

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policy position in exercising its discretion to select an

appropriate sentence for the defendant.

B. Vacating Frates's Sentence and Remanding for Resentencing

The facts of this case squarely implicate our

Godin/Ahrendt doctrine, and counsel in favor of exercising our

discretion to vacate Frates's sentence and remand to the district

court. Amendment 798 is a substantive, non-retroactive amendment

that the Sentencing Commission enacted while Frates's appeal was

pending. If the amendment had been in effect at the time of

Frates's sentencing, his guideline range would have decreased from

188-235 months' imprisonment to 92-115 months. Indeed, the

government concedes that Frates's prior convictions for

Massachusetts unarmed robbery would not qualify as crimes of

violence under Amendment 798.4

Given the government's concession, the sentencing

process on remand will be "mechanistic," not complex. Wurie, 867

F.3d at 37. The district court will need to consider only whether

the Sentencing Commission's current policy about who qualifies as

a career offender affects its discretionary choice of sentence.

Finally, there is no indication that the district court was aware

of Amendment 798 at the time of sentencing.

4 The government specifically conceded that Massachusetts
unarmed robbery would not qualify as crimes of violence under
section 4B1.2(a)'s force clause or under its enumerated crime of
robbery.

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 The government advances three primary reasons why we

should nonetheless decline to vacate Frates's sentence and remand

for resentencing. All three are unpersuasive. First, the

government argues that a line from the Supreme Court's decision in

Dillon v. United States, 560 U.S. 817 (2010), undermines the

Godin/Ahrendt doctrine. Dillon involved the question of whether

a provision of the Guidelines that limited a court's discretion in

sentence modification proceedings remained mandatory -- rather

than advisory -- after Booker. 560 U.S. at 819-822. In holding

that the provision was mandatory, the Court sought to establish

that other provisions of the Guidelines likewise remained binding

post-Booker. Id. at 830. It thus observed that "[n]o one disputes

that the Commission's retroactivity determinations . . . are

binding." Id.

The Godin/Ahrendt doctrine is entirely consistent with

the Supreme Court's observation that the Sentencing Commission's

retroactivity determinations are binding. Both Godin II and

Ahrendt acknowledge that the Commission's pronouncement that

Amendment 709 was non-retroactive bound the court. Godin II, 522

F.3d at 136 ("The original guideline range . . . remains

applicable, because the amendment was substantive and non-

retroactive."); Ahrendt, 560 F.3d at 79 ("Because Amendment 709 is

non-retroactive, . . . Ahrendt is not entitled to the benefit of

[the] amendment . . . ."). Indeed, the Godin/Ahrendt doctrine

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necessarily presupposes that the Commission's retroactivity

determinations are binding. It only allows district courts to

consider the Sentencing Commission's revised policies as a

discretionary factor in resentencing defendants.

Second, the government contends that vacating and

remanding in this case will effectively open the floodgates for

defendants challenging their sentences "in light of Johnson." This

position is vastly overstated. As we detailed above, the

Godin/Ahrendt doctrine applies only to a narrow category of cases

involving certain non-retroactive amendments that are adopted

before a defendant's sentence becomes final on appeal. Our holding

here is thus potentially relevant to defendants sentenced pursuant

to section 4B1.2(a)'s residual clause only if their sentences were

not yet final when Amendment 798 went into effect in November 2017.

We fail to see how -- as the government seems to suggest -- this

case would apply more broadly to defendants challenging their

sentences based on Johnson's invalidation of the ACCA's residual

clause.

Third, the government contends that the district court's

decision to vary downward from Frates's guideline sentencing range

makes remanding his case for resentencing unnecessary. Though

"perhaps not irrelevant," a district court's decision to depart

from a defendant's guideline range will not ordinarily be a

significant factor in determining whether to remand under

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Godin/Ahrendt. Ahrendt, 560 F.3d at 80 (reasoning that the amount

an amendment reduces a defendant's guideline range is not

dispositive in deciding whether to remand). A downward variance

does not necessarily alter our "judgment that a different result

might well be reached on remand," Adams, 640 F.3d at 43, as the

Sentencing Commission's revised policy may lead a district court

to vary further from a defendant's guideline range. Indeed, the

guideline range "anchor[s] . . . the district court's discretion,"

such that even when "the sentencing judge sees a reason to vary

from the Guidelines . . . the Guidelines are in a real sense

[still] the basis for the sentence." Molina-Martinez, 136 S. Ct.

at 1346 (emphasis omitted) (quoting Peugh v. United States, 569

U.S. 530, 542, 549 (2013)). The knowledge that the Sentencing

Commission would choose a different "anchor" thus remains a

relevant discretionary factor for district courts to consider even

where they initially varied downward.

This case provides a prime example of this principle.

The district court varied downward based on Frates's history of

substance abuse and mental health issues, and imposed a sentence

of 132 months' imprisonment. Under the Sentencing Commission's

current thinking, that sentence would constitute an upward

variance of 17 months. The district court may well view this fact

as reason to vary even more significantly from Frates's guideline

range.

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 IV.

For these reasons, we "think it prudent to allow the

[district] court the opportunity to consider the Sentencing

Commission's updated views." Ahrendt, 560 F.3d at 80. We

therefore vacate Frates's sentence and remand for resentencing

consistent with this opinion. On remand, the court's initial

calculation of Frates's guideline range remains in effect. The

court is under no obligation to modify Frates's sentence if, in

its discretion, it does not feel that modification is warranted.

So ordered.

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