United States v. Lovely

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 08-1371
UNITED STATES,
Appellee,
v.
MICHAEL J. LOVELY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.
Elaine Mittleman on brief for appellant.
Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby,
United States Attorney, on brief for appellee.
March 26, 2009
Per Curiam. Defendant-appellant Michael Lovely appeals from
his sentence, arguing that the district court did not recognize it
had discretion to reduce a career criminal offender Guideline
sentence and that it did not sufficiently take into consideration
Lovely's background in sentencing him. The sentence is affirmed.
We review questions of law, such as the legal meaning of the
Sentencing Guidelines, de novo. See United States v. Vazquez-
Botet, 532 F.3d 37, 65 (1st Cir. 2008). Review of findings of fact
is for clear error, United States v. Cali, 87 F.3d 571, 575 (1st
Cir. 1996), and appellate review of the overall sentence is for
reasonableness. United States v. Jimenez-Beltre, 440 F.3d 514, 519
(1st Cir. 2006) (en banc).
Application of 28 U.S.C. § 994(h)
There was no error in the court's imposition of a Guideline
sentence. The court recognized that the Guidelines were advisory
only. During the Guideline calculations, the court made clear that
it understood the Guideline range to be advisory in the context of
the application of career criminal offender statute, 28 U.S.C. §
994(h), stating, "[994(h) is] not determinative. It doesn't set a
minimum. It's not a mandatory." The court properly considered the
Guideline range in determining the sentence imposed. As we have
recently noted in a career offender case, sentencing judges now
have "considerable leeway to vary from the Guidelines range," but
the Guidelines remain the starting point for any sentencing
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decision, and "the Guidelines range may substantially influence a
particular defendant's sentence, especially when large increases
imposed on career offenders are involved." United States v.
Giggey, 551 F.3d 27, 29 (1st Cir. 2008) (en banc).
18 U.S.C. § 3553(a)(4) requires sentencing courts to consider
the category of the defendant as set forth in the Guidelines, and
§ 3553(a)(5) requires consideration of "any pertinent policy
statement...issued by the Sentencing Commission." Policy
statements in the guidelines follow the mandate to the Commission
in 28 U.S.C. § 994(h) to "assure that the guidelines specify a
sentence to a term of imprisonment at or near the maximum term" for
career offenders as defined in the statute. The background
commentary to USSG § 4B1.1, the career criminal offender guideline,
makes clear that the guideline implements the directive of the
statute. While not decisive, "[p]olicy statements issued by the
Sentencing Commission are, of course, pertinent to sentencing
determinations even under the now-advisory guidelines." United
States v. Martin, 520 F.3d 87, 93 (1st Cir. 2008) (citing 18 U.S.C.
§ 3553(a)(5)). The Supreme Court has also emphasized the need for
sentencing courts to follow the factors outlined in § 3553(a). See
Kimbrough v. United States, 128 S.Ct. 558, 570 (2007) ("while [§
3553(a)] still requires a court to give respectful consideration to
the Guidelines,..., Booker permits the court to tailor the sentence
in light of other statutory concerns") (emphasis supplied). The
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court here properly assessed the 3553(a) factors, including the
Congressional intent evidenced in the policy statements, and it
also maintained that the Guideline range was advisory.
The court's discussion with the parties about the appropriate
role of § 994(h) does not demonstrate that it failed to understand
its discretion, only that it sought guidance about how best to
incorporate the statutory directive in its application of the
advisory Guidelines. The court made clear its own understanding
that the Guidelines themselves were advisory but sought
clarification from counsel on whether he could "just ignore" the
language of § 994(h). The parties replied that § 994(h) had to be
considered. The court did just that, assessing it in the context
of the factors expressed in § 3553(a). There was no error.
Reasonableness of the Sentence
Lovely also claims that the district court "did not address
the complete disconnect" between his Career Offender predicates and
his offense conduct and failed to "discuss the special
circumstances of those crimes" in imposing the sentence. This
claim fails because the district court directly and reasonably
addressed Lovely's concerns at sentencing. It noted first, in
response to the defense's argument for a departure on the grounds
that Lovely's risk of recidivism was low,
I do not find departure appropriate. I don't find any
overrepresentatation of criminal history here. The
recidivism that Mr. Lovely has shown and the violence
that he has shown suggests that the criminal history
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calculation is appropriate, and I don't find that the
circumstances here do justify a [§] 5K2.0 departure.
The court was within its discretion to choose not to impose a
departure. Jimenez-Beltre, 440 F.3d at 519. The district court
similarly considered defendant's arguments that Lovely was
different because he dealt primarily marijuana, not crack, and
because he accepted responsibility for his conduct and cooperated
with authority. The court concluded that these factors could be
appropriately addressed with the selection of a sentence within the
Guideline range. The court's sentence was not unreasonable.
Affirmed.
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