          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.




                         April 10, 2008




     *
      Senior Judge Conrad K. Cyr participated in the original
hearing and disposition of this case but retired prior to the
disposition of the petition for rehearing. The remaining members
of the panel comprise a quorum for the issuance of this decision.
28 U.S.C. § 46(d).
          Per Curiam.   This case is now before us on petition for

rehearing.    As recounted in detail in our prior decision, United

States v. Godin, 489 F.3d 431 (1st Cir. 2007) ("Godin I"), Jennifer

Godin pled guilty in 2005 to one count of obstructing commerce by

robbery, 18 U.S.C. § 1951(a) (2000), and one count of using and

carrying a firearm during and in relation to the robbery, id. §

924(c)(1)(A)(ii).   On April 14, 2006, the district court sentenced

her to 262 months computed as follows.

          Applying the 2005 sentencing guidelines, the district

court found that Godin was a career offender because her crime was

a crime of violence, she was at least eighteen years old at the

time of the offense, and she had two prior offenses in that

category (both burglaries of apartments in the same building in the

same week).   U.S.S.G. § 4B1.1(a).    As a career offender convicted

on multiple counts, one of which was under 18 U.S.C. § 924(c), her

guidelines range was 262-327 months.    U.S.S.G. § 4B1.1(c)(3).   The

district court chose the bottom of this range.

          On appeal, Godin challenged inter alia the district

court's determination that she was a career offender.    She argued

that her two prior crimes of violence--the burglaries--should be

counted as one because they were "related sentences" as defined in

the guidelines.     U.S.S.G. §§ 4B1.2(c), 4A1.2(a)(2) & cmt. n. 3

(2005).   We rejected Godin's argument because the two burglaries

were not part of a "single common scheme or plan," and although she


                                -2-
was sentenced for the two burglaries on the same day, the two

crimes had not been "consolidated for trial or sentencing," as this

court had previously interpreted that phrase. Godin I, 489 F.3d at

435-36.

          While   Godin's    appeal       was   pending,   the   Sentencing

Commission proposed an amendment to the guidelines restating the

rules for determining when multiple crimes are counted as one for

criminal history purposes.     The amendment provided that two prior

convictions are counted as one if the resulting "sentences were

imposed on the same day." U.S.S.G. § 4A1.2(a)(2) (2007); U.S.S.G.,

Supp. to App. C, Amendment 709 (2007).          The amendment, proposed in

May 2007, was set to become effective on November 1, 2007, unless

Congress acted to prevent its adoption.

          Under   the    proposed     amendment,      Godin's    two   prior

burglaries--for which she was sentenced in state court on a single

day--would count as one, and she would no longer have two prior

felony convictions.     Thus, had the amendment been in effect at the

time of her sentencing, Godin would have been excluded from the

career offender category and her guideline sentencing range would

have been reduced from 262-327 months to a much lower number--

possibly as low as 121-130 months.1


     1
      Godin's PSR assigned an adjusted offense level of 17 to her
robbery conviction. This was based on a base offense level of 20
for robbery under § 2B3.1, and a 3 level reduction for acceptance
of responsibility under § 3E1.1(a).    Godin was then assigned a
criminal history category of IV, based on her prior convictions,

                                    -3-
           Following   this   court's   June   2007   affirmance   of   her

sentence, Godin I, 489 F.3d at 438, Godin petitioned for rehearing,

asking the court to consider the impact of the proposed amendment.

As suggested by the government, we delayed ruling on the petition

to see whether the amendment would become effective on November 1,

2007, as it did.   If the Sentencing Commission had also given the

amendment retroactive force, this would have returned the matter to

the district court, but the Commission did not do so.              United

States Sentencing Commission, Supplement to the 2007 Guidelines

Manual, § 1B1.10(c) (March 3, 2008) (not listing Amendment 709).

           The Sentencing Commission's decision not to make the

amendment retroactive means the defendant is not entitled, under

the procedure set forth in 18 U.S.C. § 3582(c)(2), to further

proceedings in which the district court even in the case of a

sentence that has become final may choose to adjust the sentence

employing the more lenient amendment to calculate the guideline

range.   But the posture of this case is peculiar: the amendment is

not applicable retroactively, but neither has the pending appeal

yet resulted in a final disposition, that is, a disposition that is

no longer subject to review on direct appeal in any court.



and other relevant factors under U.S.S.G. § 4A1.1, yielding a
guideline range of 37-46 months. However, the statutory minimum
for the firearms offense is 84 months, running consecutively to any
other term of imprisonment. 18 U.S.C. § 924(c)(1)(A); U.S.S.G. §
2K2.4(b) & cmt. n. 2(A). The resulting guideline range--121-130
months--would have been about half the guideline range employed.

                                  -4-
          Even though the case is still on appeal, neither this

court nor the district court is governed by a non-retroactive

substantive amendment adopted after the defendant's sentencing,2

but both we and the district court could be influenced by an

amendment that merely clarified an earlier provision.                   United

States v. Cabrera-Polo, 376 F.3d 29, 32 (1st Cir. 2004).               And we,

although not the district court, could choose to alter our own

prior reading of a newly clarified guideline even if in an earlier

case we had read the original guideline adversely to the defendant.

          Here, the amendment is substantive and does not establish

that the pertinent guideline in effect at the time of Godin's

sentence was misconstrued by this court.               See United States v.

Crudup, 375 F.3d 5, 7-10 (1st Cir. 2004) (discussing factors

rendering guidelines amendment either substantive or clarifying).

The   Commission    said      that   a   conflict      existed   as   to     the

interpretation     of   the    earlier     guideline     and,    in   lieu   of

clarification in favor of one view or the other, it adopted a new

blanket rule that eliminates the ambiguity by going beyond any




      2
      United States v. Havener, 905 F.2d 3, 7 (1st Cir. 1990)
(Breyer, J.); see also United States v. Diaz-Cardenas, 351 F.3d
404, 409 (9th Cir. 2003) ("[S]ubstantive amendments to the
guidelines that occur between the date of sentencing and the
resolution of an appeal have no retroactive effect unless
specifically referenced in U.S.S.G. § 1B1.10.").

                                     -5-
circuit's reading of the previous rule in a manner favorable to the

defendant.3

          Nevertheless, the Commission's amendment makes clear that

in a case like Godin's, it regards the best approach to be to treat

the two burglary sentences imposed together as one prior sentence

without regard to the timing or circumstances of the burglaries,

and to correct any under-representation of criminal history by

permitting a discretionary adjustment upward.    U.S.S.G. § 4A1.2

cmt. n. 3 (2007).   Given that both of Godin's burglaries occurred

within a short period in the same building and neither involved

physical harm to any person, it is open to doubt whether under the

new guideline the district court would have made a large upward

adjustment, if any.

          The Commission recognized that the language as it stood

in 2005 was not crystal clear and that some circuits like ours had

taken a strict view while others had been more flexible.       The

Commission could merely have "clarified" its preference for the

flexible view and we might then have revised our own prior reading,

Isabel v. United States, 980 F.2d 60, 62 (1st Cir. 1992), and given



     3
      See U.S.S.G., Supp. to App. C, Amendment 709, Reason for
Amendment (Nov. 1, 2007) (comparing United States v. Correa, 114
F.3d 314, 317 (1st Cir. 1997) (requiring formal order of
consolidation) with United States v. Huskey, 137 F.3d 283, 288 (5th
Cir. 1998) (no formal order required)). The Commission also noted
that practitioners complained that the earlier guideline was "too
complex and le[]d to confusion. Moreover, a significant amount of
litigation has arisen concerning application of the rules." Id.

                                -6-
Godin the benefit of the new rule.             Instead, the Commission made a

substantive change, namely, to a mechanical rule that goes even

further in the direction of leniency.                It may seem odd that in a

still pending case Godin should be irremediably worse off because

the    Commission       went     further      in    her    direction     than    mere

clarification.

            Understandably, the Commission hesitates to make most

substantive changes retroactive since they may require the redoing

of    hundreds    or    even   thousands      of   final    sentences.     But    the

Commission's policy judgment, as we earlier conjectured in Godin I

is that it is better to start low, counting the same-day sentences

as one, and adjust upward if warranted.                   That does not alter the

guideline range applicable in this case; but in dealing with a

sentence that has not become final, it might alter the district

court's ultimate choice of a discretionary sentence in the post-

Booker era.

            Thus, we think that the district judge should be given a

chance to reconsider the sentence.                 The original guideline range

calculated       by    the   judge    under    the    2005    guidelines    remains

applicable,       because      the   amendment      was    substantive    and    non-

retroactive.      But, as the judge's discretion is no longer rigidly

controlled by the guideline range,4 the judge is free to consider


       4
      Gall v. United States, 128 S. Ct. 586, 594 (2007); United
States v. Booker, 543 U.S. 220, 245, 259-60 (2005); United States
v. Jimenez-Beltre, 440 F.3d 514, 518-19 (1st Cir. 2006) (en banc),

                                         -7-
the Commission's current thinking for whatever use it may be in

exercising the court's judgment about the proper sentence.

           Admittedly, the district judge recognized the severity of

the sentence--Godin has had a "horrendous life" (in                the judge's

words) and suffers from mental illness--but was willing to impose

it because of the nature of defendant's crime and her history of

drug abuse, crime, and violence.          Godin I, 489 F.3d at 437-38.     The

district court may still deem this the proper sentence.               But the

original   guideline     range     was    the   starting    point    and   the

Commission's current policy position on who should be deemed a

career offender may have some influence on the judge's ultimate

discretionary choice of sentence.

           Accordingly, we grant the petition for rehearing, vacate

our judgement of June 13, 2007, supplement Godin I with this

decision addressed to the amended guideline,           vacate the district

court's sentence and remand for re-sentencing, leaving it to the

district judge to decide whether the original or some different

sentence   should   be   imposed    and    to   determine   what    additional

proceedings, if any, the judge might find helpful.

           It is so ordered.




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

                                     -8-
