Appellate Law

CA1: An interesting Kimbrough remand

By S. COTUS

US v. Boardman, No. 07-1030 vacates a sentence for conspiracy to distribute heroin under 21 U.S.C. § 846 (2000) which was enhanced because of two burglaries.  The District Court held that under United States v. Fiore, 983 F.2d 1 (1st Cir. 1992), cert. denied, 507 U.S. 1024 (1993) that non-residential burglary is always a crime of violence under U.S.S.G. § 4B1.1.  But wait, says the First, "we [the First, that is] agreed to rehear United States v. Giggey, No. 07-2317, en banc, and that can?t be considered until the fall."

However, the First also points out that the District Court did have discretion to deviate from the guideline range based on his view that the prior felonies should not be so treated under Kimbrough v. United States, 128 S. Ct. 558 (2007).  And, the First says, if such discretion exists then he probably would be entitled to immediate release.  So, rather than wait for the rehearing of Giggey, the First says that remand makes more sense.

Full post as published by Appellate Law and Practice on June 11, 2008 (boomark / email).