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United States of America v. Jesse Leahy

February 3, 2012



The opinion of the court was delivered by: Selya, Circuit Judge.

Before Boudin, Selya and Howard, Circuit Judges.

Following the vacation of his original sentence and a remand for resentencing, the district court sentenced defendant-appellant Jesse Leahy to serve a ten-year incarcerative term. The defendant now challenges this newly imposed sentence on two grounds, insisting that the sentencing court abused its discretion in (i) refusing to reconsider certain guidelines-related arguments, and (ii) imposing overly harsh punishment. After careful consideration, we affirm the sentence.

Our first interaction with the defendant occurred when we affirmed his conviction and his original sentence. See United States v. Leahy, 473 F.3d 401 (1st Cir. 2007). That opinion catalogued the facts of the case, see id. at 404-05, and we assume the reader's familiarity with it. We include here only an abbreviated account.

On July 27, 2003, the defendant had an altercation with a group of teenagers near his mother's home in Kezar Falls, Maine. During the imbroglio, he retrieved a 9mm pistol from the house and fired it. In short order, police arrived at the scene, arrested the defendant, searched his mother's house, and discovered both the pistol and a rifle.

The defendant had a criminal record, and federal authorities soon charged him with being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). On February 17, 2005, a jury found him guilty. At sentencing, the district court determined that the defendant had three previous convictions for violent felonies. This determination triggered the Armed Career Criminal Act (ACCA), see 18 U.S.C. § 924(e), adversely impacted the defendant's offense level and criminal history score, see USSG §4B1.4, and brought into play a 15-year mandatory minimum sentence, see 18 U.S.C. § 924(e)(1).

The district court proceeded to calculate the defendant's guideline sentencing range (GSR). It started with a base offense level of 24, see USSG §2K2.1(a)(2); added four levels for the defendant's possession of a firearm in connection with another felony, see id. §2K2.1(b)(6)(B);*fn1 and added two levels for obstruction of justice, see id. §3C1.1. As an armed career criminal, the defendant received a further upward adjustment. See id. §4B1.4(b)(3)(A). These computations brought the defendant's total offense level to 34 and, paired with a criminal history category (CHC) of VI, produced a GSR of 262 to 327 months. The court imposed a term of immurement at the bottom of the range: 262 months.

The defendant unsuccessfully appealed both his conviction and his sentence. See Leahy, 473 F.3d at 413. The Supreme Court denied certiorari. Leahy v. United States, 552 U.S. 947 (2007).

In due season, the defendant moved to vacate the sentence pursuant to 28 U.S.C. § 2255. Pertinently, he claimed ineffective assistance of counsel because his lawyer had failed to object to the inclusion, in the course of the armed career criminal determination, of a predicate conviction (without which the armed career criminal determination could not stand).*fn2 See 18 U.S.C. § 924(e)(1) (requiring three predicate convictions as a precondition to the application of the ACCA). The district court denied the motion. Leahy v. United States, No. 04-24, 2009 WL 1783532 (D. Me. June 22, 2009).

The defendant appealed but, before his appeal could be heard, the government conceded the defendant's premise that the ACCA should not have entered into the sentencing calculus. The parties notified us and, accordingly, we vacated the defendant's sentence and remanded for resentencing consistent with the government's confession of error.

With this mandate in hand, the district court held a presentence conference. The defendant tried to reargue two non-ACCA aspects of the district court's original guidelines calculations. The court denied this request based on its understanding that our mandate limited the resentencing proceeding to issues affected by the erroneous application of the ACCA. See, e.g., United States v. Matthews, 643 F.3d 9, 12-13 (1st Cir. 2011) (discussing law of the case doctrine, which "posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case" (citation and internal quotation marks omitted)). But the court did not stop there. It also made clear that it understood the defendant's arguments and believed them to be meritless.

At resentencing, the defendant reiterated that the sentencing guidelines should be calculated anew. The sentencing court rejected this position and found that the defendant still qualified for the two previously calculated non-ACCA enhancements. See USSG §§2K2.1(b)(6)(B), 3C1.1. Then, without reference to the ACCA, the court set the total offense level at 30 and the CHC at V. These findings yielded a new GSR of 151 to 188 months. The court noted that absent the ACCA, the statutory maximum for the offense of conviction was 120 months. See 18 U.S.C. § 924(a)(2). It proceeded to determine that a 120-month sentence was appropriate. This timely appeal followed.

We review criminal sentences for reasonableness, using an abuse of discretion standard. See Gall v. United States, 552 U.S. 38, 46 (2007); United States v. Madera-Ortiz, 637 F.3d 26, 30 (1st Cir. 2011). "The review process is bifurcated: we first determine whether the sentence imposed is procedurally reasonable and then determine whether it is substantively reasonable." United States v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011). With respect to procedural reasonableness, the abuse of discretion standard is multi-faceted. Within it, we review factual findings for clear error, see United States v. Wallace, 461 F.3d 15, 33 (1st Cir. 2006); arguments that the sentencing court erred in interpreting or applying the guidelines de novo, see United States v. Pho, 433 F.3d 53, 60-61 (1st Cir. 2006); and judgment calls for abuse of discretion simpliciter, see Riva v. Ficco, 615 F.3d 35, 40 (1st Cir. 2010).

In order to achieve procedural reasonableness, a sentencing court must correctly calculate the GSR. See United States v. Gobbi, 471 F.3d 302, 313 & n.7 (1st Cir. 2006). Here, the defendant argues that the sentencing court mishandled this task. In the defendant's view, the court was not required to hew to its previous guidelines-related findings by the ...

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