United States v. Martin , 180 F. App'x 182 ( 2006 )

Not for Publication in West's Federal Reporter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. 04-1834
UNITED STATES OF AMERICA,
Appellee,
v.
CHANCE MARTIN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Boudin, Chief Judge
Torruella and Howard, Circuit Judges.
Christopher R. Goddu, Assistant Federal Defender, Federal
Defender Office, on brief for appellant.
Michael J. Sullivan, United States Attorney, and Timothy Q.
Feeley, Assistant United States Attorney, on brief for appellee.
May 11, 2006
Per Curiam. After a jury trial, Chase Martin was
convicted on three counts--two of drug dealing and one of being a
felon in possession. 21 U.S.C. § 841(a)(1); 18 U.S.C. § 922(g)(1)
(2000). He had a prior state-court conviction for armed robbery
and assault and battery growing out of a dispute about a bicycle,
but because the present offense occurred while Martin was on
probation, he fell within criminal history category II. At
sentencing, Martin was sentenced to 135 months, the bottom of the
guideline range.
The appeal period being still open when Booker was
decided, Martin now asks for a remand on the ground that he might
expect a lower sentence under the current advisory guideline
regime. See United States v. Booker, 543 U.S. 220 (2005). As the
issue was not preserved, the burden is on Martin to show a
reasonable likelihood of such an outcome. See United States v.
Heldeman, 402 F.3d 220, 223-24 (1st Cir. 2005). In the peculiar
circumstances of Booker, we have not been overly demanding.
In Martin's favor is his youth, sparse criminal history,
and the psychological impact of severe injuries he suffered at age
16 as the innocent victim of a drive-by shooting. Martin has
proffered a psychological report, providing more detail about this
incident than what was offered at sentencing; and although the
government objects, we have been willing in the context of Booker
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remand requests to consider a reasonable proffer. Heldeman, 402
F.3d at 224.
The district court's remarks at sentencing are ambiguous.
The judge properly emphasized the seriousness of Martin's present
crimes but he seemed sympathetic to the argument that Martin was at
best a borderline candidate for criminal history category II; and
the psychological information now available is perhaps more
compelling than what was available at the time of the sentencing.
We note also that Martin was sentenced at the bottom of the
guideline range.
Under the circumstances, we think a remand is
appropriate, but it should not be taken as predicting that Martin
will get a significantly lower sentence. The sentence is vacated
and the matter remanded for further proceedings consistent with
this opinion.
It is so ordered.
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