CA1: First Remands in light of non-retroactive change in guidelines

US v. Godin, No. 06-1749. After being sentenced as a career offender under the 2005 version of U.S.S.G. § 4B1.1(a), the USSC came out with a newer version of U.S.S.G. § 4A1.2(a)(2) (2007); U.S.S.G., Supp. to App. C, Amendment 709 (2007), which describes a prior conviction as counting as one conviction if it was “imposed on the same day.”  But this amendment wasn’t made retroactive and therefore relief isn’t possible under 18 U.S.C. § 3582(c)(2). So, the First says that since the case is still on appeal, it can still be “influenced by an amendment that merely clarified an earlier provision.” Since the commission said there was a conflict and this was substantive provision, it remands and concludes that “the judge is free to consider the Commission's current thinking for whatever use it may be in exercising the court's judgment about the proper sentence.”

The earlier decision in United   States  v. Godin, 489 F.3d 431 (1st Cir. 2007) was covered by us here.