United States v. Jones , 178 F. App'x 27 ( 2006 )


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  •                    Not for Publication in West's Federal Reporter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. 05-1541
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    MATTHEW JONES,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF RHODE ISLAND
    [Hon. William E. Smith, U.S. District Judge]
    Before
    Selya, Circuit Judge,
    Hug,* Senior Circuit Judge,
    and Howard, Circuit Judge.
    James R. Knudsen, by appointment of the court, for appellant.
    Donald C. Lockhart, Assistant United States Attorney, with
    whom Robert Clark Corrente, United States Attorney, was on brief,
    for appellee.
    April 26, 2006
    *
    Of the Ninth Circuit, sitting by designation.
    Per Curiam.      The path to this sentencing appeal began on
    December 27, 2004, when defendant-appellant Matthew Jones entered
    a guilty plea to a two-count indictment charging (i) possession of
    a firearm as a convicted felon, see 
    18 U.S.C. § 922
    (g)(1), and (ii)
    simple possession of over five grams of cocaine base, see 
    21 U.S.C. § 844
    (a).   Certain key facts are undisputed.          After a chase, police
    found   Jones     on   the   ground,   with   his   hands   behind   his   head.
    Concealed under nearby leaves was a pistol with the clip removed.
    The police discovered the clip, which contained four rounds, in an
    adjacent manhole and three more rounds in the same vicinity.                  A
    search of Jones's person disclosed that he had over five grams of
    crack cocaine in his pocket.
    The    presentence     investigation      report    (PSI   Report)
    recommended a two-level reckless-endangerment enhancement, see USSG
    §3C1.2, because Jones had fled from the arresting officer while
    holding the pistol and, as he ran, had turned toward the officer
    with the pistol in his hand.           On Jones's objection, the probation
    officer amended the PSI Report to delete the reckless-endangerment
    enhancement.      The government then filed a sentencing memorandum in
    which it argued in favor of restoring the enhancement.
    The district court convened the disposition hearing on
    April 4, 2005.         The PSI Report stated that there were no factors
    warranting a departure from the guideline sentencing range (GSR),
    and neither side questioned that conclusion. The government argued
    -2-
    successfully in favor of the reckless-endangerment enhancement.
    With the inclusion of that enhancement, Jones's total offense level
    was 27.      The court placed him, without objection, in criminal
    history category IV.        This combination yielded a GSR of 100-125
    months.
    When the district court inquired why the government had
    not sought some form of upward variation or adjustment based on the
    fact that Jones had jumped bail and fled to Alabama after state
    authorities had charged him with a crime in connection with the
    same incident, the Assistant United States Attorney — not the same
    individual who argued the case before us on the government's behalf
    — responded that the possibility of such a variation or adjustment
    had never occurred to him.         The court then asked defense counsel
    whether an upward variance would be appropriate in light of the
    bail-jumping incident.       Counsel objected to any consideration of
    such a variance based on the absence of prior notice that the court
    might embrace this option.        The government agreed with the defense
    that the lack of prior notice prevented immediate consideration of
    the issue.     The court overruled the prior notice objection, citing
    its discretion under the advisory guidelines. See United States v.
    Booker, 
    543 U.S. 220
    , 233 (2005).
    The district court thereafter suggested, for the first
    time,   that   it   might   run   the    two   components   of   the   sentence
    consecutively. As with the possibility of an upward variance based
    -3-
    on the bail-jumping incident, this sentence-lengthening possibility
    had neither been discussed in the PSI Report nor advanced by the
    government in its pre-hearing memorandum.        The defense again
    objected on notice grounds.
    In due course, the district court proceeded to impose
    sentence.   The statutory maximum for the gun count was ten years,
    while the drug count carried a statutory mandatory minimum of five
    years and a statutory maximum of twenty years.    The court imposed
    the maximum ten-year sentence on the gun count and the mandatory
    minimum five-year sentence on the drug count.    If run concurrently
    the sentence would have been within the GSR for the crimes of
    conviction, but running the terms consecutively resulted in an
    aggregate period of incarceration that exceeded the top of the GSR
    by fifty-five months.    It seems clear that, in arriving at this
    result, the court factored in some grounds that had not been
    contemplated in either the PSI Report or the prosecution's pre-
    hearing submissions.
    Jones appeals his sentence.    He challenges (i) the
    propriety of the reckless-endangerment enhancement; (ii) the lack
    of notice with respect to several grounds relied on by the court
    and, particularly, with respect to the imposition of consecutive
    terms of immurement; and (iii) the reasonableness of the overall
    sentence.
    -4-
    This case comes to us in an odd posture.         Jones argues —
    and the government concedes — that the sentence should be vacated
    and the case remanded for resentencing because, among other things,
    the district court deviated from the GSR based on unexpected
    grounds and without giving any advance notice.          We are not bound,
    of course, to accept the government's confession of error, see,
    e.g., United States v. Sánchez-Berríos, 
    424 F.3d 65
    , 81 (1st Cir.
    2005), but we choose to do so here.
    Our    rationale   is   multifaceted.     First,   because   the
    change-of-plea   colloquy    predated    the   Booker   Court's   watershed
    decision but the sentencing itself post-dated that decision, the
    applicable sentencing regime changed mid-stream (from mandatory
    guidelines to advisory guidelines); hence, the case falls into a
    peculiar time warp.    Second, as Jones points out, the sentencing
    transcript indicates that the district court mis-recollected what
    it had told Jones at the change-of-plea hearing and may have acted
    on that mis-recollection.     Third, since the district court imposed
    sentence in this case, we decided United States v. Jiménez-Beltre,
    
    440 F.3d 514
     (1st Cir. 2006), in which we clarified how sentencing
    should proceed under the advisory guidelines.             Because Jones's
    objections were preserved and there is some question whether the
    district court correctly anticipated the Jiménez-Beltre protocol,
    it makes sense to eliminate any doubt and allow the court to act
    with full knowledge of that protocol.
    -5-
    Last — but surely not least — the two legal points on
    which this appeal ordinarily would turn — whether the running of
    the two components of the sentence consecutively constituted a
    departure rather than a variance and, if not, whether the advance
    notice requirement of Burns v. United States, 
    501 U.S. 129
    , 131
    (1991), and Fed. R. Crim. P. 32(h) should apply by analogy to
    deviations from the advisory guidelines (as opposed to departures)
    — are freighted with uncertainty.2            We are reluctant to decide so
    nuanced     a    set   of   questions   where,   as   here,   the   adversarial
    relationship has been compromised.               After all, both sides are
    agreed that the sentence should be vacated and the case remanded
    for resentencing, and no amici have filed briefs.              We think that,
    under these unusual circumstances, the course of prudence, in
    fairness both to the parties and to the able district judge, is to
    allow the court to make a fresh start and formulate the sentence
    anew.
    We need go no further. For the reasons alluded to above,
    we honor the parties' joint request, vacate Jones's sentence, and
    remand for resentencing.         We take no view as to the reasonableness
    2
    For example, the circuits are divided on the issue of whether
    prior notice is required before a sentencing court, operating under
    advisory guidelines, may deviate from the GSR on a ground neither
    argued by the government in its pre-sentencing memorandum nor
    elaborated in the PSI Report. Compare, e.g., United States v. Long
    Soldier, 
    431 F.3d 1120
    , 1122 (8th Cir. 2005) (holding that no such
    prior notice is required), with, e.g., United States v. Dozier, ___
    F.3d ___, ___ (10th Cir. 2006) [
    2006 WL 864877
    , at *2] (holding to
    the contrary).
    -6-
    of the sentence previously imposed, the sustainability of any of
    the lower court's sentencing determinations,3 or the contested
    "prior notice" issue.
    Vacated and remanded.
    3
    Jones invites us to pass upon the validity of the reckless-
    endangerment enhancement before remanding to the district court.
    We decline the invitation. It seems to us more efficient, in the
    peculiar circumstances of this case, to afford the district court
    as much flexibility as possible in refashioning the sentence. Cf.
    United States v. Pimienta-Redondo, 
    874 F.2d 9
    , 14 (1st Cir. 1989)
    (en banc) (noting, in the context of a partial reversal of a
    multicount conviction, that the district court is in the best
    position to tailor an overall sentence suitable to the offense and
    the offender).
    -7-
    

Document Info

Docket Number: 05-1541

Citation Numbers: 178 F. App'x 27

Judges: Howard, Hug, Per Curiam, Selya

Filed Date: 4/26/2006

Precedential Status: Precedential

Modified Date: 8/3/2023