United States v. Rivera ( 2009 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-2687
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ A. RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Torruella, Selya, and Lipez,
Circuit Judges.
Jane Elizabeth Lee on brief for appellant.
Jennifer H. Zacks, Assistant U.S. Attorney, and Michael J.
Sullivan, United States Attorney, on motion for summary
disposition.
February 26, 2009
Per Curiam. This is defendant's direct appeal from his
sentence. The sole issue that he raises is whether the district
court underestimated the scope of its discretion--later clarified
in Kimbrough v. United States, 128 S. Ct. 558 (2007), and United
States v. Boardman, 528 F.3d 86 (1st Cir. 2008)--to "var[y] from
the Guidelines based solely on the judge's view that the Guidelines
range 'fails properly to reflect § 3553(a) considerations' even in
a mine-run case," Kimbrough, 128 S. Ct. at 575 (quoting Rita v.
United States, 127 S. Ct. 2456, 2465 (2007)), and, in particular,
to "deviate from the guidelines . . . on the basis of categorical
policy disagreements" with the career offender guideline, Boardman,
528 F.3d at 87. If so, then a remand for resentencing may be
warranted. Moore v. United States, 129 S. Ct. 4, 5 (2008) (per
curiam); Boardman, 528 F.3d at 88. Of course, the district court
is free to clarify this point on remand.
A threshold question is whether defendant adequately
preserved this issue below, which determines the applicable
standard of appellate review. We need not decide that question
because the more demanding plain-error standard is satisfied here.
The record shows that the court felt powerless to disregard the
career offender guideline on policy grounds in a "mine-run case"
and also shows a "reasonable probability" that if the court had
understood the full scope of its discretion, it would have imposed
a lesser sentence. United States v. Matos, 531 F.3d 121, 122-23
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(1st Cir.) (applying the "reasonable probability" standard to
unpreserved Kimbrough errors), cert. denied, 2008 WL 4898432 (U.S.
Dec. 8, 2008).
Even after departing downward slightly on the ground that
counting defendant's juvenile offenses overrepresented the
seriousness of his criminal history, the court still felt that
defendant's sentence was "way too long" and that "the Sentencing
Commission picked these numbers out of the air, and . . . had no
basis for [them]." Yet, because it could not further distinguish
defendant from other career offenders, the court believed that it
could not vary below the already reduced guideline range without
creating an unwarranted sentencing disparity between defendant's
sentence and those of other career offenders sentenced by other
judges.
That view, though a correct statement of the law in this
circuit at the time, see United States v. Caraballo, 447 F.3d 26,
27-28 (1st Cir. 2006), was rendered plainly erroneous by Kimbrough.
In particular, the Kimbrough Court expressly recognized that its
holding might create sentencing disparity between similarly
situated defendants, depending on individual judges' differing
policy views, but characterized any such disparity as "a necessary
cost of the remedy . . . adopted [in United States v. Booker, 543
U.S. 220 (2005)]." Kimbrough, 128 S. Ct. at 574.
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The district court's repeated characterization of the
sentence imposed as "too long" further indicates that, had it
understood the full scope of its discretion, it "might well" have
imposed a lesser sentence. United States v. Heldeman, 402 F.3d
220, 224 (1st Cir. 2005). We therefore remand the case to give the
district court an opportunity to resentence if and to whatever
extent it deems appropriate in light of "the additional latitude
furnished by Kimbrough." Boardman, 528 F.3d at 88.
The matter is remanded to the district court for further
proceedings consistent with this decision. See 1st Cir. R.
27.0(c).
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