U.S. v. Boardman, 07-1030.

• Decision Date: 11 June 2008
• Docket Number: No. 07-1030.,07-1030.
• Citation: 528 F.3d 86
• Parties: UNITED STATES of America, Appellee, v. Timothy BOARDMAN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

528 F.3d 86

UNITED STATES of America, Appellee, v. Timothy BOARDMAN, Defendant, Appellant.

No. 07-1030.

United States Court of Appeals, First Circuit.

Heard May 8, 2008.

Decided June 11, 2008.

Jaye L. Rancourt, by appointment of the court, with whom Brennan Caron Lenehan & Iacopino was on brief for appellant.

Terry L. Ollila, Assistant United States Attorney, with whom Thomas P. Colantuono, United States Attorney, was on brief for appellee.

Before BOUDIN, Chief Judge, LYNCH and LIPEZ, Circuit Judges.

BOUDIN, Chief Judge.

On June 27, 2006, Timothy Boardman pleaded guilty to one count of conspiracy to distribute heroin, 21 U.S.C. § 846 (2000); he was thereafter sentenced to 84 months' imprisonment by the federal district court for New Hampshire. He now appeals to contest his sentence.

Boardman argues that his two prior convictions for burglary (of a warehouse and a garage, respectively) should not have been considered predicate "crimes of violence" for purposes of the career offender provision of the sentencing guidelines, U.S.S.G. § 4B1.1, application of which substantially increased his guideline range. He also argues that in any event, the district judge had—but mistakenly thought he did not have—the discretion to deviate from the guideline range based on his view that the prior felonies should not be so treated.

This court's decision in United States v. Fiore, 983 F.2d 1 (1st Cir.1992), cert. denied, 507 U.S. 1024, 113 S.Ct. 1830, 123 L.Ed.2d 458 (1993), held that non-residential burglary is always a crime of violence under the guideline in question, id. at 4-5, and the district judge faithfully applied that precedent in this case. However, we have just agreed, in another pending case, United States v. Giggey, No. 07-2317, to reconsider en banc the holding of Fiore; were we to decide to change course, a remand would be necessary here too. However, Giggey, in which further briefing is being sought, cannot be argued and decided until the fall.

In the meanwhile, if Boardman's alternative argument is right, then he is entitled to resentencing regardless of whether Fiore is overturned. See United States v. Rodriguez, 327 F.3d 52, 54 (1st Cir.2003). Because of time already served before and after the sentence was imposed, resentencing could result in a new sentence that would amount to immediate or imminent release.¹ And because we think that the district judge has more authority than he thought even if Fiore stands, we think that a remand now serves the interests of justice without awaiting the outcome of Giggey.

After Boardman was sentenced, the Supreme Court held in Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), that district judges may deviate from the guidelines even on the basis of categorical policy disagreements with its now-advisory provisions. In Kimbrough, the disagreement was with the crack to cocaine ratio set forth in the guidelines, see id. at 570; here, the district judge's comments at the sentencing hearing suggest disagreement with this court's interpretation of the guidelines in Fiore to include non-residential burglary as a predicate for the career offender enhancement.

The district court properly recognized that it was bound by Fiore to treat the guideline as we had interpreted it; but we do not see why disagreement with the Commission's policy judgment (as expressed in the guideline as we interpreted it in Fiore) would be any less permissible a reason to deviate than disagreement with the guideline policy judgment at issue in Kimbrough. The district court, of course, had no reason to anticipate Kimbrough's approach which overturned or called into question various rulings of this court and other circuits assuming that such guideline policy judgments were binding.

Of course the district court is still required to calculate and consider the guidelines range. United States v. Jimenez-Beltre, 440 F.3d 514, 518-19 (1st Cir.2006) (en banc), cert. denied, ___ U.S. ___, 127 S.Ct. 928, 166 L.Ed.2d 715 (2007). But because it has broader freedom that it did before Kimbrough and there is some explicit indication that it might well alter its sentence in light of that, we think a remand is warranted to permit the court to make its own decision now informed by Kimbrough. Rodriguez, 327 F.3d at 54. This is so regardless of how Giggey is ultimately...