United States Court of Appeals

For the First Circuit

No. 06-1749

UNITED STATES OF AMERICA,

Appellee,

v.

JENNIFER GODIN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

 Boudin, Chief Judge,

Cyr, Senior Circuit Judge,

and Howard, Circuit Judge.

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.

June 13, 2007
The government described the brandishing in its version of 1

the facts tendered during the later Rule 11 hearing. Godin's

attorney conceded that the government could offer proof of the

allegations made in its version of events.

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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
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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
The 84 months for violating 18 U.S.C. § 924(c)(1)(A)(ii) was 2

the statutory minimum; for the robbery, 178 months was well within

the statutory maximum of 240 months, 18 U.S.C. § 1951(a).

See Apprendi v. New Jersey, 530 U.S. 466, 487-90 (2000); 3

Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998). This

court is committed to following Almendarez-Torres until it is

overruled. United States v. Ivery, 427 F.3d 69, 75 (1st Cir.

2005), cert. denied, 126 S. Ct. 1448 (2006).

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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. Godin says that under Shepard v. United 3

States, 544 U.S. 13 (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 factfindings 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,
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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, 126

S. Ct. 644 (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. 
The section defining terms used in the career offender 4

guideline, U.S.S.G. § 4B1.2(c), makes it a condition of having "two

prior felony convictions" for violent or drug offense crimes that

each resulted in a sentence "counted separately" under U.S.S.G. §

4A1.1(a), (b) or (c); prior sentences "in related cases" count as

one for purposes of these subsections, U.S.S.G. § 4A1.2(a)(2); and

the limitation quoted in text is part of a comment defining

"related cases." U.S.S.G. § 4A1.2, cmt. 3.

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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 (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
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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, No. 06-1421, 2007 U.S.

App. LEXIS 10922, at *9-10 (1st Cir. May 9, 2007); Martins, 413

F.3d at 152; United States v. Correa, 114 F.3d 314, 317 (1st Cir.),

cert. denied, 522 U.S. 927 (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, 2007 U.S. App. LEXIS

10922, at *10. 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 *12.

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
Compare United States v. Berry, 212 F.3d 391, 393-95 (8th 5

Cir.), cert. denied, 531 U.S. 907 (2000), United States v. Brown,

209 F.3d 1020, 1024 n.9 (7th Cir. 2000), and United States v.

Beckett, 208 F.3d 140, 147 n.2 (3d Cir. 2000), with United States

v. LaBarbara, 129 F.3d 81, 86 (2d Cir. 1997), and United States v.

Mullens, 65 F.3d 1560, 1565 (11th Cir. 1995), cert. denied, 517

U.S. 1112 (1996). 

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divided as to whether the meaning of the phrase in subsection (B) 5

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
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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 two different apartments committed by one actor several days

apart need something more than resemblance of mode or motive even

if that were relevant. No one would say that a judge who tried two

similar drug cases back to back did so pursuant to a common scheme

or plan.

A scheme or plan implies some kind of connective tissue

like an initial plan encompassing multiple acts or a sequence of

steps to a single end. See United States v. Joy, 192 F.3d 761, 771

(7th Cir. 1999), cert. denied, 530 U.S. 1250 (2000). Nothing like

that was present in this case. Perversely, as in Elwell, a party

to a conspiracy to rob banks may come out ahead under section

4A1.2(a)(2); but this is for the Sentencing Commission to fix, and

we will not cure the discrepancy by extending the protection of

subsection (B) to someone like Godin who is neither within its
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language, and whose circumstances do not implicate any obvious

policy pointing toward a lower sentence.

Godin says that even if within the guideline range, the

sentence was unreasonably severe. Under United States v. Booker,

543 U.S. 220, 245-46, 259-60 (2005), the district judge can adopt

a non-guideline sentence where this is consistent with the broad

sentencing factors listed in the statute, 18 U.S.C. § 3553(a)

(2000); and, where the factors are properly understood, our review

of the overall judgment by the district judge is deferential.

United States v. Jiminez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006)

(en banc), cert. denied, 127 S. Ct. 928 (2007).

Godin's claim for a lower sentence is not frivolous. She

is now 30 years of age and, under the sentence imposed, will serve

262 months in jail for a robbery that netted a few hundred dollars.

Her sentences for the prior burglaries were 90 days and, although

both are by statute crimes of violence because of their potential

for violence, no physical harm to other individuals occurred.

Indeed, it appears that no one else was present in either of the

earlier episodes of burglary. 

Two other considerations favoring leniency are stressed

in Godin's brief. The first is that Godin had a miserable

childhood and, in the district judge's words, a "horrendous life."

Godin was chronically abused as a child and sexually assaulted both

as a child and adult. Two of her brothers committed suicide, one
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of which she witnessed at a young age. She is divorced,

voluntarily surrendered parental rights to two of her children, and

had her other two children removed from her care. One of her

children was apparently sexually abused while not in Godin's

custody. 

The other fact is that Godin suffers from mental illness,

including depression, suicidal tendencies and schizo-affective

disorder (a catch-all that can embrace symptoms both of

schizophrenia and of manic-depressive psychosis). She has been

hospitalized for mental illness on several occasions. Her plight

is complicated by a history of trauma and abuse, by an apparent

inability to plan effectively for her future, and by considerable

drug use, primarily but not exclusively marijuana. 

Yet, where there is a "plausible explanation and a

defensible overall result," we normally respect the judgment of the

lower court as to whether to go outside the guidelines. JiminezBeltre, 440 F.3d at 519. Here, the district court acknowledged

that Godin's life had been awful and that she had eventually

cooperated with the authorities in disclosing the circumstances

that led to multiple weapons being found in the apartment (but not

quickly enough to provide substantial assistance under the

guidelines). 

Recognizing that Godin had suffered from mental

impairments, the district judge nevertheless said that there was no
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evidence that she was suffering from diminished capacity at the

time of the burglary and thus no basis for a downward departure

under the guidelines on this account, see U.S.S.G. § 5K2.13, and

that Godin's mental and emotional condition--a discouraged basis

for departure--was not so exceptional as to otherwise warrant a

departure, see U.S.S.G. §§ 5H1.3, 5K2.0(a)(4). Such a refusal to

depart is not ordinarily reviewable save for a mistake of law.

United States v. Melendez-Torres, 420 F.3d 45, 50-51 (1st Cir.

2005).

As to the reasonableness of the sentence, the district

judge noted that while Godin's life had been blighted, the crime of

conviction was extremely serious--robbery in which a weapon had

been brandished at a victim--and that Godin's past history showed

a "proclivity for drug abuse, for crime, for violence." Further,

the judge recognized that Congress had determined that double

recidivism involving drugs or violence should be met by very stiff

sentences, 28 U.S.C. § 994(h); U.S.S.G. § 4B1.1, background cmt.,

and he properly respected that decision. See generally United

States v. Pho, 433 F.3d 53, 62 (1st Cir. 2006).

On review, Godin says that the "proclivity" finding is

overstated both as to violence and drugs but this is very much a

judgment call and the district court's statement is not clearly

erroneous. Godin had shown some potential for violence--evidenced

both by the possession and brandishing of the gun and by other
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incidents in her past--and, while her use of marijuana is less

dangerous than hard drugs, it was still regular drug use and

apparently one of the motives for her robbery. Nor did the judge,

as now claimed, "ignore[]" Godin's mental and emotional history. 

Perhaps the strongest argument for Godin is that about

the worst she appears to have done in her prior burglaries was to

trash an apartment; thus, as to these two offenses, she is within

the letter of the career offender law but at the margin in terms of

dangerousness. Yet, her conduct was escalating--the robbery

involved a gun--and the district court had no reason to think that

Godin could easily be deterred from repetitions. The statute is

designed to give two chances and then to come down very hard the

third time. 

A lower sentence could have been defended. But there was

no mistake of law, the district judge made a thoughtful assessment,

the result is not indefensible, and there the matter must stand.

If Godin could rehabilitate herself in prison and dispel the very

real threat of future harm, a responsible penal system would

eventually consider a shortening of her sentence. The President,

through the commutation process, may choose to do so.

Affirmed.