U.S. v. Godin

• Decision Date: 13 June 2007
• Docket Number: No. 06-1749.,06-1749.
• Citation: 489 F.3d 431
• Parties: UNITED STATES of America, Appellee, v. Jennifer GODIN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

489 F.3d 431

UNITED STATES of America, Appellee, v. Jennifer GODIN, Defendant, Appellant.

No. 06-1749.

United States Court of Appeals, First Circuit.

Heard March 6, 2007.

Decided June 13, 2007.

Paul M. Glickman, by appointment of the court, with whom Glickman Turley LLP, was on brief for appellant.

Margaret D. McGaughey, Appellate Chief, with whom Paula D. Silsby, United States Attorney, was on brief for appellee.

Before BOUDIN, Chief Judge, CYR, Senior Circuit Judge, and HOWARD, Circuit Judge.

BOUDIN, Chief Judge.

In the early morning hours of March 7, 2005, Jennifer Godin entered the Super 8 Motel in Sanford, Maine, put a gun on the counter of the front desk, and told the clerk, "Give me everything in the drawer. Do what I say and you won't get hurt." The clerk then handed Godin paper currency and rolled coins, and Godin headed to the exit, saying, "If you tell anybody, then I'm going to come back." In the course of this threat, Godin apparently pointed the gun at the clerk.¹

The clerk called the police and later identified Godin as the robber. Sanford police arrested Godin at her home on March 9, 2005. They seized various items linking Godin to the crime, including a revolver that matched the description of the gun used in the robbery and papers from rolled coins. The two handguns found in Godin's house were later identified as having been stolen. Witnesses also indicated that Godin had admitted to having robbed the motel on March 7.

Godin was charged with obstructing commerce by robbery, 18 U.S.C. § 1951(a) (2000), and with using and carrying a firearm—including brandishing the weapon—during and in relation to the robbery, 18 U.S.C. § 924(c)(1)(A)(ii). Godin pled guilty and was thereafter sentenced under the Sentencing Guidelines (the 2005 edition was used) to 262 months in prison. She now appeals from her sentence. Our review is de novo as to purely legal issues and more deferential as to fact-finding and other issues. See United States v. Cao, 471 F.3d 1, 5 (1st Cir.2006).

Godin's sentence comprised two elements: 178 months for the robbery, followed by a mandatory term of 84 months for the brandishing of a gun, required by statute to be served consecutively, 18 U.S.C. § 924(c)(1)(A)(ii), (D)(ii). The combined guideline sentence for the two offenses was greatly lengthened because the district court determined that Godin was a "career offender," defined as one whose current offense is "a crime of violence or a controlled substance offense" and who has two prior offenses falling in either category. U.S.S.G. § 4B1.1(a).

A career offender's sentence calculation is based on a higher offense level and a criminal history category at the highest level. U.S.S.G. § 4B1.1(b). Because Godin was so designated, her offense level for the robbery, adjusted (as it was) for acceptance of responsibility, would typically have been raised to 29 (rather than 17, as it would have been without this designation) and her criminal history category to VI (rather than IV). The resulting guideline sentence would have been 151 to 188 months for the robbery alone. U.S.S.G. ch. 5, pt. A.

However, because Godin was a career offender and was convicted of violating 18 U.S.C. § 924(c), guideline section 4B1.1(c)(3)—which provides especially severe sentences in such cases—applied; the result was a combined sentence range of 262 to 327 months. Refusing to depart downward, the district court imposed the minimum—262 months—combined sentence, allocating 178 months to the robbery and the minimum 84 months to the firearm charge.²

On this appeal, Godin says the question whether she qualified as a career offender should have been determined by a jury. The Supreme Court has so far declined to extend the sixth amendment prohibition on judicial fact-finding that increases the penalty for a crime beyond the statutory maximum to situations where the question is whether the defendant has previously been convicted of a crime.³ Godin says that under Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), a jury is now required at least to determine whether her prior burglaries were related or not.

The Supreme Court's basic concern has been with fact-findings that increase the penalty for a crime beyond the statutory maximum sentence. Because in this case the sentence imposed is within the existing statutory maximum for each of the two crimes, whatever Shepard may entail has no effect here. See United States v. Ngo, 406 F.3d 839, 843 n. 1 (7th Cir.2005); see also United States v. Martins, 413 F.3d 139, 152 (1st Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 644, 163 L.Ed.2d 520 (2005).

The question remains whether the district judge's guideline calculations were correct. Godin had a number of brushes with the law before the motel robbery, but only two prior convictions qualified as crimes of violence or drug offenses. Each was a burglary of a different apartment in the same apartment building—one on July 26, 2002, and the other six days later on August 1, 2002. In both cases, Godin knew the victim, had some grievance, kicked in the apartment door and stole various items; in one of the cases, she also trashed the apartment.

Burglary is classified under the pertinent guideline as a crime of violence, U.S.S.G. § 4B1.2(a)(2), so the two 2002 burglaries—together with the instant armed robbery of the motel—supplied the necessary predicates for career offender status, unless the two prior burglaries are counted as only one conviction. The career offender guidelines, by cross-reference, treat the two convictions as only one (if not separated by an intervening arrest) where the offenses

(A) occurred on the same occasion, (B) were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing.

U.S.S.G. § 4A1.2, cmt. 3.⁴

Subsection (A) did not apply to Godin's two burglaries. This leaves subsections (B) and (C) for consideration. Subsection (A)'s rationale is apparent—crimes committed on the same date are arguably less reflective of "career" behavior than those separated by an opportunity to reflect, see United States v. Elwell, 984 F.2d 1289, 1295 (1st Cir.), cert. denied, 508 U.S. 945, 113 S.Ct. 2429, 124 L.Ed.2d 650 (1993)— but the reasons for (B) and (C) have puzzled courts and led to some divergence in interpretation. Why, one might ask, should two separate crimes count for less because they were consolidated for trial or sentencing or, worse still, part of a common scheme or plan?

Probably the best explanation is that sometimes such crimes may seem like one course of criminal conduct and that consolidation and the scheme or plan category were regarded as crude proxies for this characteristic, the (frequent) misfit being acknowledged by an explicit warning in the commentary that their application could result in undue leniency, correctable by an upward departure. See U.S.S.G. § 4A1.2, cmt. 3. This "Rube Goldberg" gimmickry, Elwell, 984 F.2d at 1295, has not encouraged an especially generous reading of subsections (B) and (C).

Our own cases insisting on an order of consolidation or some other indicia of formal consolidation for (C) are representative, see United States v. Bell, 485 F.3d 54, 58-59 (1st Cir.2007); Martins, 413 F.3d at 152; United States v. Correa, 114 F.3d 314, 317 (1st Cir.), cert. denied, 522 U.S. 927, 118 S.Ct. 326, 139 L.Ed.2d 253 (1997), and Godin conceded in the district court that her prior burglary convictions were not formally consolidated. Thus it does not matter that she pled and was sentenced for both crimes at the same time, nor whether Maine has a mechanism for formal consolidation.

In the absence of an order of consolidation, relatedness under subsection (C) might nonetheless be established by sufficient indicia of formal consolidation. See Bell, 485 F.3d at 58-59. Here we have separate docket numbers and separate Judgment and Commitment orders. The only indicia to the contrary are the probation documents—which are not enough on their own. Accord id. at 59.

The "single common scheme or plan" rubric of subsection (B) raises a more difficult issue. The concept is vague and unlike subsection (C) there is no formal test, such as a single indictment or a formal order of consolidation. The circuit courts are divided⁵ as to whether the meaning of the phrase in subsection (B) is the same as the phrase "common scheme or plan" in section 1B1.3(a)(2), which attributes to the defendant being sentenced "relevant conduct" including certain acts and omissions "that were part of the same course of conduct or common scheme or plan as the offense of conviction."

This matters only because the relevant conduct provision has commentary that elaborates on the phrase, saying that a common scheme or plan must have at least one common factor connecting the two crimes, such as "common victims, common accomplices, common purpose, or similar modus operandi." U.S.S.G. § 1B1.3, cmt. 9(A). Godin says that in her case the modus operandi of the two burglaries was similar; she also says that they involved the same apartment building and that each was motivated by a desire for revenge.

The district court, siding with the majority of the circuits that have spoken, ruled that section 1B1.3 and its commentary does not control the meaning of section 4A1.2's "single common scheme or plan"; but the district court said that its conclusion—that the two burglaries were not part of a single common scheme or plan— would be the same even if some weight were given the alleged similarity of modus operandi. There are legitimate arguments for ignoring section 1B1.3, but either way the underlying problem remains to give some sensible meaning to section 4A1.2.

We said in Elwell that—for reasons there explained in detail—the "ordinary meaning" of the phrase "single common scheme or plan" should be used. 984 F.2d at 1295. Under that standard, it seems to us that to fall within section 4A1.2(a)(2), burglaries of...