United States v. Coyne ( 2004 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-2013
UNITED STATES OF AMERICA,
Appellee,
v.
JAMES MICHAEL COYNE,
Defendant, Appellant.
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before
Selya, Lynch and Lipez,
Circuit Judges.
Tina Schneider on brief for appellant.
Joseph N. Laplante, Assistant United States Attorney,
and Thomas J. Colantuono, United States Attorney, on brief for
appellee.
August 24, 2005
Per Curiam. After this court affirmed the sentence of
defendant-appellant James Michael Coyne, United States v. Coyne,
114 Fed. Appx. 5 (1st Cir. Nov. 3, 2004) (per curiam)
(unpublished), Coyne petitioned for certiorari. While his
petition was pending, the Supreme Court decided United States v.
Booker, 125 S. Ct. 738 (2005), and, in a routine order, granted
the petition for certiorari, vacated this court's judgment, and
remanded for further consideration in light of Booker, Coyne v.
United States, 125 S. Ct. 1088 (2005). We then allowed Coyne's
request to file a supplemental brief and invited the government
to file a supplemental brief as well. After reviewing those
briefs and the underlying record, we again uphold Coyne's
sentence and reinstate our original judgment.
ANALYSIS
Coyne seeks a remand for resentencing under post-Booker
standards. In support of that request, he argues, first, that
this court should reconsider United States v. Antonakopoulos,
399 F.3d 68 (1st Cir. 2005), which places the burden on a
defendant raising an unpreserved Booker argument on appeal to
"point to circumstances creating a reasonable probability that
the district court would impose a different sentence more
favorable to the defendant under the new 'advisory Guidelines'
Booker regime." Id. at 75. Second, Coyne argues, in the
alternative, that he has satisfied the third prong of the
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Antonakopoulos plain-error standard for reviewing unpreserved
Booker errors.1 Neither of those arguments is meritorious.
The first argument can be quickly disposed of. We have
already made clear that subsequent panels are bound to follow
Antonakopoulos. See United States v. Villafane-Jimenez, 410 F.3d
74, 85 (1st Cir. 2005) (per curiam); United States v. Bailey, 405
F.3d 102, 114 (1st Cir. 2005).
Nor has Coyne satisfied his burden of showing a
"reasonable probability" that the district court would have
imposed a lower sentence had it realized that the Guidelines
could have been treated as advisory. Antonakopoulos, 399 F.3d at
75; see also United States v. Heldeman, 402 F.3d 220, 224 (1st
Cir. 2005). To the contrary, comments by the sentencing judge on
the seriousness of Coyne's drug offense indicate that the judge
would likely have imposed the same sentence under an advisory
Guidelines regime. See United States v. Vega Molina, 407 F.3d
511, 534 (1st Cir. 2005); United States v. McLean, 409 F.3d 492,
505 (1st Cir. 2005). Other indications that a lighter sentence
would have been improbable under advisory Guidelines are that the
judge declined to exercise his discretion to depart downward
based on various mitigating factors argued by the defendant and
imposed a harsher sentence than the government recommended. See
1
It is undisputed that the alleged error--sentencing under
mandatory Guidelines--was unpreserved and that defendant has
satisfied the first two prongs of the plain-error test.
-4-
United States v. Luciano, 2005 WL 1594576, at *3 (1st Cir. July
8, 2005).
The fact that the court sentenced Coyne to the bottom
of the applicable Guideline range is not sufficient, in itself,
to indicate a reasonable probability that the court would have
imposed an even lower sentence if it had the discretion to do so.
United States v. Kornegay, 410 F.3d 89, 99-100 (1st Cir. 2005).
And, even assuming, without deciding, that Coyne's post-
sentencing conduct as an allegedly "model inmate" has any
relevance here, such conduct would not likely result in a lighter
sentence for the underlying offense.
CONCLUSION
For the above reasons, we again affirm the sentence,
and order our earlier judgment reinstated.
So ordered.
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