United States v. Leahy

United States Court of Appeals
For the First Circuit

No. 10-2433

UNITED STATES OF AMERICA,

Appellee,

v.

JESSE LEAHY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

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

Before

Boudin, Selya and Howard,
Circuit Judges.

Robert C. Andrews and Robert C. Andrews Esquire P.C. on brief
for appellant.
Thomas E. Delahanty II, United States Attorney, and Margaret
D. McGaughey, Appellate Chief, on brief for appellee.

February 3, 2012
 SELYA, Circuit Judge. Following the vacation of his

original sentence and a remand for resentencing, the district court

sentenced defendant-appellant Jesse Leahy to serve a ten-year

incarcerative term. The defendant now challenges this newly

imposed sentence on two grounds, insisting that the sentencing

court abused its discretion in (i) refusing to reconsider certain

guidelines-related arguments, and (ii) imposing overly harsh

punishment. After careful consideration, we affirm the sentence.

Our first interaction with the defendant occurred when we

affirmed his conviction and his original sentence. See United

States v. Leahy, 473 F.3d 401 (1st Cir. 2007). That opinion

catalogued the facts of the case, see id. at 404-05, and we assume

the reader's familiarity with it. We include here only an

abbreviated account.

On July 27, 2003, the defendant had an altercation with

a group of teenagers near his mother's home in Kezar Falls, Maine.

During the imbroglio, he retrieved a 9mm pistol from the house and

fired it. In short order, police arrived at the scene, arrested

the defendant, searched his mother's house, and discovered both the

pistol and a rifle.

The defendant had a criminal record, and federal

authorities soon charged him with being a felon in possession of a

firearm. See 18 U.S.C. § 922(g)(1). On February 17, 2005, a jury

found him guilty. At sentencing, the district court determined

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that the defendant had three previous convictions for violent

felonies. This determination triggered the Armed Career Criminal

Act (ACCA), see 18 U.S.C. § 924(e), adversely impacted the

defendant's offense level and criminal history score, see USSG

§4B1.4, and brought into play a 15-year mandatory minimum sentence,

see 18 U.S.C. § 924(e)(1).

The district court proceeded to calculate the defendant's

guideline sentencing range (GSR). It started with a base offense

level of 24, see USSG §2K2.1(a)(2); added four levels for the

defendant's possession of a firearm in connection with another

felony, see id. §2K2.1(b)(6)(B);1 and added two levels for

obstruction of justice, see id. §3C1.1. As an armed career

criminal, the defendant received a further upward adjustment. See

id. §4B1.4(b)(3)(A). These computations brought the defendant's

total offense level to 34 and, paired with a criminal history

category (CHC) of VI, produced a GSR of 262 to 327 months. The

court imposed a term of immurement at the bottom of the range: 262

months.

The defendant unsuccessfully appealed both his conviction

and his sentence. See Leahy, 473 F.3d at 413. The Supreme Court

denied certiorari. Leahy v. United States, 552 U.S. 947 (2007).

1
At the time of the original sentencing, this guideline was
denominated as section 2K2.1(b)(5). At the time of resentencing,
it was denominated as section 2K2.1(b)(6). Withal, the relevant
wording has not changed. Thus, for ease in exposition, we use the
current numerology.

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 In due season, the defendant moved to vacate the sentence

pursuant to 28 U.S.C. § 2255. Pertinently, he claimed ineffective

assistance of counsel because his lawyer had failed to object to

the inclusion, in the course of the armed career criminal

determination, of a predicate conviction (without which the armed

career criminal determination could not stand).2 See 18 U.S.C.

§ 924(e)(1) (requiring three predicate convictions as a

precondition to the application of the ACCA). The district court

denied the motion. Leahy v. United States, No. 04-24, 2009 WL

1783532 (D. Me. June 22, 2009).

The defendant appealed but, before his appeal could be

heard, the government conceded the defendant's premise that the

ACCA should not have entered into the sentencing calculus. The

parties notified us and, accordingly, we vacated the defendant's

sentence and remanded for resentencing consistent with the

government's confession of error.

With this mandate in hand, the district court held a

presentence conference. The defendant tried to reargue two non-

ACCA aspects of the district court's original guidelines

calculations. The court denied this request based on its

understanding that our mandate limited the resentencing proceeding

2
The impetus for this motion apparently was the Supreme
Court's decision in Begay v. United States, 553 U.S. 137, 142-48
(2008), which afforded a new perspective on the meaning of the term
"violent felony" as that term is used in the ACCA.

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to issues affected by the erroneous application of the ACCA. See,

e.g., United States v. Matthews, 643 F.3d 9, 12-13 (1st Cir. 2011)

(discussing law of the case doctrine, which "posits that when a

court decides upon a rule of law, that decision should continue to

govern the same issues in subsequent stages in the same case"

(citation and internal quotation marks omitted)). But the court

did not stop there. It also made clear that it understood the

defendant's arguments and believed them to be meritless.

At resentencing, the defendant reiterated that the

sentencing guidelines should be calculated anew. The sentencing

court rejected this position and found that the defendant still

qualified for the two previously calculated non-ACCA enhancements.

See USSG §§2K2.1(b)(6)(B), 3C1.1. Then, without reference to the

ACCA, the court set the total offense level at 30 and the CHC at V.

These findings yielded a new GSR of 151 to 188 months. The court

noted that absent the ACCA, the statutory maximum for the offense

of conviction was 120 months. See 18 U.S.C. § 924(a)(2). It

proceeded to determine that a 120-month sentence was appropriate.

This timely appeal followed.

We review criminal sentences for reasonableness, using an

abuse of discretion standard. See Gall v. United States, 552 U.S.

38, 46 (2007); United States v. Madera-Ortiz, 637 F.3d 26, 30 (1st

Cir. 2011). "The review process is bifurcated: we first determine

whether the sentence imposed is procedurally reasonable and then

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determine whether it is substantively reasonable." United States

v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011). With respect to

procedural reasonableness, the abuse of discretion standard is

multi-faceted. Within it, we review factual findings for clear

error, see United States v. Wallace, 461 F.3d 15, 33 (1st Cir.

2006); arguments that the sentencing court erred in interpreting or

applying the guidelines de novo, see United States v. Pho, 433 F.3d

53, 60-61 (1st Cir. 2006); and judgment calls for abuse of

discretion simpliciter, see Riva v. Ficco, 615 F.3d 35, 40 (1st

Cir. 2010).

In order to achieve procedural reasonableness, a

sentencing court must correctly calculate the GSR. See United

States v. Gobbi, 471 F.3d 302, 313 & n.7 (1st Cir. 2006). Here,

the defendant argues that the sentencing court mishandled this

task. In the defendant's view, the court was not required to hew

to its previous guidelines-related findings by the law of the case

doctrine but, rather, should have afforded him a blank slate at

resentencing.

While this argument urges us to examine the scope of our

earlier mandate, such an examination is not necessary. Even

assuming that the mandate did not require the district court to

adhere to its previous guidelines-related findings, the court

explicitly stated that it understood the defendant's guidelines-

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related arguments and found them unpersuasive. As we explain

below, this alternative holding is fully supportable.

Other than the base offense level, the defendant has

challenged every other integer used in calculating the new GSR: the

four-level enhancement for possessing a firearm in connection with

another felony, the two-level enhancement for obstruction of

justice, and the formulation of his CHC. None of these challenges

has merit.

We begin with the district court's four-level enhancement

for possessing a firearm "in connection with another felony

offense." USSG §2K2.1(b)(6)(B). The defendant says the decision

in United States v. O'Brien, 130 S. Ct. 2169, 2180 (2010), requires

the facts underlying this enhancement to be proved to a jury beyond

a reasonable doubt. This argument represents a triumph of hope

over reason.

In O'Brien, the government dropped from the indictment a

count that charged the defendants with use of a machine gun in

furtherance of a crime of violence. Id. at 2173. It nevertheless

insisted that if the defendants were convicted of a different

charge — using a nonspecific firearm in the same manner — it could

establish at sentencing that the firearm was a machine gun and thus

trigger the more severe penalties the law imposed. Id. In

rejecting this reasoning, the Court reiterated that under its Sixth

Amendment jurisprudence, elements of a crime which increase the

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penalty beyond the prescribed statutory limit must be proved to a

jury beyond a reasonable doubt. Id. at 2174-75; United States v.

Work, 409 F.3d 484, 488 (1st Cir. 2005). It reaffirmed, however,

that sentencing factors affecting a judge's discretion within a

statutorily prescribed range may be proved to a judge at sentencing

by a preponderance of the evidence. O'Brien, 130 S. Ct. at 2174-

75; see Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

There was no threat that the statutory maximum would be

increased in the case at hand. Although the imposition of the

four-level enhancement affected the underlying guideline

calculations, the district court remained bound by the applicable

statutory maximum sentence (120 months). See 18 U.S.C.

§ 924(a)(2). Using the guidelines in this manner did not increase

the prescribed range of penalties beyond that maximum; it only

informed the court's discretion in imposing a penalty within the

statutorily prescribed range. The employment of this paradigm did

not offend the Sixth Amendment. See United States v. Molloy, 324

F.3d 35, 40 n.1 (1st Cir. 2003) (rejecting similar Sixth Amendment

argument anent the same guideline on the ground that the contested

enhancement did not expose defendant to a sentence in excess of the

statutory maximum).

As a fallback, the defendant asserts that the meaning of

"violent felony" is in flux, see, e.g., Begay v. United States, 553

U.S. 137, 142-48 (2008), and that more recent approaches to the

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term should affect the interpretation and application of section

2K2.1(b)(6)(B). The defendant's premise is correct, but the

conclusion that he draws from it is not. The meaning of "violent

felony," though relevant to the now irrelevant ACCA determination,

has no bearing on the applicability vel non of section

2K2.1(b)(6)(B). To invoke this guideline, the sentencing court

need only find that the firearm facilitated or had the potential to

facilitate "another felony offense." See USSG §2K2.1(b)(6)(B).

The term "another felony offense" is separately defined in an

application note, see id. §2K2.1, comment. (n.14(C)), and does not

depend on the meaning of the term "violent felony."

At any rate, the record makes manifest that an

enhancement under section 2K2.1(b)(6)(B) was appropriate. Where,

as here, a defendant is convicted of unlawful possession of a

firearm, the application of this guideline depends on whether the

defendant possessed the firearm "in connection with" another felony

offense and whether the additional offense is one qualifying for

the enhancement. See United States v. Paneto, 661 F.3d 709, 715

(1st Cir. 2011). At resentencing, the defendant did not contest

his use of a firearm in connection with the incident that gave rise

to this prosecution. Nor did the sentencing court commit clear

error in concluding that the defendant used the firearm in

connection with a qualifying felony, which could be viewed either

as aggravated assault or as reckless conduct with a firearm. Me.

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Rev. Stat. Ann. tit. 17-A, §§ 208, 211, 1252(2), 1252(4). It

follows that the four-level enhancement under section

2K2.1(b)(6)(B) was wholly appropriate.

The defendant next protests that the two-level

enhancement for obstruction of justice should not have been

factored into his sentence. See USSG §3C1.1. He grounds this

assertion in our earlier opinion, in which we found that even if

the use of that enhancement was error, it was harmless because of

the armed career criminal designation. See Leahy, 473 F.3d at 413.

Given the inapplicability of the ACCA, any error in this

respect would no longer be harmless. But the defendant did not

preserve any objection to the enhancement at his resentencing.

Consequently, we review this claim for plain error. See United

States v. Dávila-González, 595 F.3d 42, 47 (1st Cir. 2010).

"Review for plain error entails four showings: (1) that an error

occurred (2) which was clear or obvious and which not only (3)

affected the defendant's substantial rights, but also (4) seriously

impaired the fairness, integrity, or public reputation of judicial

proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.

2001).

The district court reaffirmed at resentencing its earlier

findings. This reaffirmation incorporated the finding that the

defendant had perjured himself time and again while testifying at

trial. Specifically, the court cited the defendant's incredible

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statements that he did not shoot at the teenagers and that he had

done no more than defend himself. These findings are not clearly

erroneous, and they are sufficient to support an enhancement for

obstruction of justice. See, e.g., USSG §3C1.1, comment. (n.4(B))

(explaining that perjurious testimony may trigger the obstruction

of justice enhancement). The defendant has presented no coherent

theory as to why the obstruction of justice enhancement was

improvident.

That ends this aspect of the matter. "Giving due heed to

both the trial judge's unique coign of vantage and the deferential

standard of review," Gobbi, 471 F.3d at 315, we uphold the district

court's determination that the defendant lied about material events

while testifying at trial.

The defendant's next plaint, properly preserved, is that

the district court erred in computing his criminal history score.

Specifically, the defendant contests two points that the court

awarded for probation-related offenses. But even if these points

were incorrectly assessed, the defendant would be left with ten

points and his CHC would not change. See USSG Ch. 5, Pt. A

(sentencing table) (establishing boundaries of CHC V as 10 to 12

criminal history points). Thus, any error in including the

contested criminal history points was harmless.3

3
The defendant notes in passing that his original sentencing
occurred before the Supreme Court's decision in United States v.
Booker, 543 U.S. 220 (2005), which made application of the

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 The defendant's final asseveration is that the sentence

imposed is substantively unreasonable. In this regard, he notes

that the ten-year term is the maximum possible under the statute of

conviction and that, in all events, the sentencing court did not

give enough weight to his post-conviction rehabilitation. We

consider this asseveration "under [an] abuse of discretion rubric,

. . . taking into account the totality of the circumstances."

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

examine, among other things, the district court's oral explanation

of the sentence, the parties' arguments, and the contents of the

presentence investigation report. See id. at 93.

The defendant's argument that imposition of the statutory

maximum sentence is a greater than necessary punishment for his

offense is unavailing. A sentencing court's decision to impose the

maximum sentence allowed by law does not automatically make that

decision unreasonable. Rather, "a sentencing court's ultimate

responsibility is to articulate a plausible rationale and arrive at

a sensible result." United States v. Carrasco-de-Jesús, 589 F.3d

22, 30 (1st Cir. 2009). The court should evaluate the sentencing

factors limned in 18 U.S.C. § 3553(a) and "quantify that evaluation

sentencing guidelines advisory, see id. at 245. He suggests that
Booker somehow affects his new sentence and requires a remand.
This suggestion is hard to follow: the resentencing occurred in the
post-Booker era, and there is nothing in the record to support a
claim that the district court, at resentencing, considered the
guidelines mandatory.

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in a sentence that is fair, just, and in accordance with law."

Clogston, 662 F.3d at 593.

The court below fulfilled these responsibilities. The

defendant's criminal record was extensive. Furthermore, the low

point of his GSR, even without reference to the ACCA, was above the

statutory maximum. Here, moreover, the court explained that it had

considered all the appropriate factors, but remained unconvinced

that the defendant had abandoned his life of crime and concerned

that the public would be put at risk if he were incapacitated for

a shorter period.4 The court acted within its discretion in

determining that a lengthy sentence best addressed these concerns.

The defendant's argument that the court gave insufficient

weight to rehabilitation and remorse lacks force. To be sure,

"when a defendant's sentence has been set aside on appeal, a

district court at resentencing may consider evidence of the

defendant's postsentencing rehabilitation," and proof of that sort

"may, in appropriate cases, support a downward variance." Pepper

v. United States, 131 S. Ct. 1229, 1236 (2011). In addition, a

defendant's rehabilitation is "highly relevant to several of the

§ 3553(a) factors." Id. at 1242.

4
The defendant maintains that these findings are unfair
because his criminal history category had been reduced from
category VI to category V when the ACCA dropped out of the case.
This reduction, however, has no bearing on the district court's
independent determination that the defendant still poses a real
threat to society.

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 But this is only half of the story. Although a

sentencing court must consider evidence of a defendant's

rehabilitation as part of its analysis, it is not required to

impose a lesser sentence as a result. See United States v. García-

Ortiz, 657 F.3d 25, 30 (1st Cir. 2011). In this area, as

elsewhere, "[the] court is under a mandate to consider a myriad of

relevant factors, but the weighting of those factors is largely

within the court's informed discretion." Clogston, 662 F.3d at

593.

So it is here. After hearing from the defendant and his

attorney at the resentencing, the court stated that it had taken

all the relevant factors into account. This statement "is entitled

to some weight." Dávila-González, 595 F.3d at 49. The court then

explained its reasons for concluding that a 120-month sentence best

served the purposes of sentencing in this particular case. On this

record, we have no well-founded basis for second-guessing that

determination.

In the last analysis, "there is not a single reasonable

sentence but, rather, a range of reasonable sentences" in any given

case. Martin, 520 F.3d at 92. Within that universe, a sentencing

court has considerable latitude to select the punishment that best

fits the criminal and the crime. See Pepper, 131 S. Ct. at 1240;

United States v. Gallardo-Ortiz, ___ F.3d ___, ___ (1st Cir. 2012)

[No. 08-2292, slip op. at 6]. "That the sentencing court chose not

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to attach to certain of the mitigating factors the significance

that the appellant thinks they deserved does not make the sentence

unreasonable." Clogston, 662 F.3d at 593.

The bottom line is that the court below articulated a

plausible sentencing rationale and imposed a sentence within the

range of reasonable outcomes. No more is exigible.

We need go no further. For the reasons elucidated above,

we affirm the defendant's sentence.

Affirmed.

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