United States v. McGuire , 185 F. App'x 15 ( 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Not For Publication in West's Federal Reporter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. 06-1166
UNITED STATES OF AMERICA,
Appellee,
v.
MITCHELL MCGUIRE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, Senior U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Sally A. Morris on brief for appellant.
Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby,
United States Attorney, on brief for appellee
June 28, 2006
Per Curiam. Mitchell McGuire, who was convicted after a
jury trial of conspiring to possess and possessing more than five
grams of crack cocaine with intent to distribute, appeals from his
resentencing under United States v. Booker, 543 U.S. 220 (2005),
after remand by the Supreme Court and this court for that purpose.1
For the reasons discussed below, we affirm the new, reduced
sentence.
Originally, pre-Booker, the district court had imposed a
360-month (30-year) sentence, the bottom of the then-mandatory
guidelines range. That range resulted primarily from McGuire's
status as a career offender under section 4B1.1 of the guidelines.
On remand, the parties stipulated that McGuire qualifies as a
career offender, that the resulting guidelines sentencing range is
360 months to life, and that the sole issue before the district
court on remand was "whether there exists any reason why a lower
sentence should be imposed in light of Booker." At resentencing,
after hearing arguments of counsel and engaging in extended
colloquies with McGuire's brother, father, and mother and with
McGuire himself, the district court was persuaded to reduce
McGuire's sentence by 60 months to 300 months (25 years). The
1
The salient facts of the underlying offense are described in
this court's opinion affirming McGuire's conviction and his
sentence, pre-Booker. United States v. McGuire, 389 F.3d 225, 227-
28 (1st Cir. 2004), vacated, 544 U.S. 946 (2005).
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court explained, at length, its reasons for imposing that sentence
in light of the factors set forth in 18 U.S.C. § 3553(a).
In the present appeal, McGuire argues that the new
sentence is unreasonably high. Specifically, he contends that the
career offender guideline, on which the district court
substantially relied, overstates the seriousness of his criminal
record, has a disproportionate impact on African-American males
like McGuire, and does not reduce recidivism. He also argues that
the disparity in sentencing between crack and powder cocaine
offenses is unwarranted, and that the sentence does not adequately
reflect his post-conviction rehabilitation.
Of those arguments, only the first and last relate
specifically to McGuire's individual circumstances. The remainder
are policy arguments against the career offender guideline and the
crack/cocaine differential, which are appropriately addressed to
Congress, not to the courts. United States v. Caraballo, 447 F.3d
26, 27 (1st Cir. 2006) (career offender guideline); United States
v. Pho, 433 F.3d 53, 63-65 (1st Cir. 2006) (crack/cocaine
differential). Although the length of McGuire's new sentence is
still driven primarily by the guidelines, that is appropriate
since, as the district court recognized, despite Booker, the
guidelines continue to be "an important consideration in
sentencing." United States v. Jiménez-Beltre, 440 F.3d 514, 518
(1st Cir. 2006) (en banc).
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As to McGuire's criminal record, which the district court
reviewed in full detail, we infer that the district court was
persuaded by the government's argument that McGuire's criminal
record is "nothing short of abysmal." Although the court agreed
with McGuire that his sentence should not be increased based on a
series of arrests that did not culminate in convictions, the court
permissibly considered those matters in determining McGuire's
attitude, capacity for rehabilitation, and absence of remorse for
his prior criminal conduct.
The court also expressly considered McGuire's post-
conviction change of attitude and desire for rehabilitation.
Although the court was skeptical that McGuire had really changed,
it was persuaded by his arguments and those of his counsel and
family members that sentencing a 30-year-old man to a 30-year
prison term might "cause the creation of hopelessness that will
endure for life." For that reason--and demonstrating that the
court had considered McGuire's arguments in light of the statutory
factors, rather than rotely reimposing the original sentence--the
court imposed a reduced sentence of 25 years.
In explaining its reasons for doing so, the court applied
the relevant statutory factors to the facts of this case. In
particular, the court explained that the sentence was "sufficient
to provide . . . just punishment for very serious dishonorable
course of conduct, not only in distributing drugs which ruins
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lives, but in acts of violence . . ., inflicting suffering and
mental fear as well as physical abuse upon innocent people." See
18 U.S.C. § 3553(a)(2)(A). The court also expressly considered
McGuire's family background and prior record, 18 U.S.C. §
3553(a)(1); the need for deterrence, both specific and general, 18
U.S.C. § 3553(a)(2)(B); and the need to protect the public, 18
U.S.C. § 3553(a)(2)(C). In sum, the court concluded that a 25-year
sentence "is a most fair, just, honorable sentence in the present
circumstances of this case." Finding that reasoning plausible and
supported by the record and finding the resulting sentence
defensible, we defer to the district court's on-the-scene judgment.
Jiménez-Beltre, 440 F.3d at 519. Such deference is particularly
appropriate here, given the judge's intimate familiarity with the
underlying facts, acquired by presiding over McGuire's trial and
two sentencing proceedings.
Accordingly, the sentence is summarily affirmed. See 1st
Cir. R. 27(c).
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