United States Court of Appeals For the First Circuit

No. 06-1254

UNITED STATES OF AMERICA,

Appellee,

v.

WILLIAM AHRENDT,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Lipez, Meritt,* and Howard, Circuit Judges

David A.F. Lewis for appellant. Renée M. Bunker, Assistant United States Attorney, with whom Paula D. Silsby, United States Attorney, was on brief, for appellee.

March 19, 2009

* Of the Sixth Circuit, sitting by designation. HOWARD, Circuit Judge. William Ahrendt1 challenges his

cocaine conspiracy conviction and 210-month sentence. He alleges

that the district court committed two errors at trial: declining

to order a reevaluation of his competency and excluding evidence of

a psychological evaluation. He also alleges that the court

committed two errors at sentencing by applying a leadership

enhancement and by failing to treat certain prior offenses together

when evaluating his criminal history.

I. Background

The following background facts on Ahrendt's role in the

cocaine conspiracy were elicited at Ahrendt's trial.

During the relevant time, Ahrendt lived in Bangor, Maine,

in an apartment from which he allowed others to "come and go." He

sold drugs out of his apartment, and provided drugs for people to

use while in his apartment. In November 2003, he met Sandra Hurd,

who took advantage of Ahrendt's "very high clientele" to "set up

shop" in his apartment selling drugs. Hurd solicited two other

individuals, Randy Brimley and Kelvin Deloatch, for the operation.

Hurd, Brimley and Deloatch were generally responsible for bringing

multiple shipments of cocaine per week from Massachusetts to

Bangor, Maine.2

1 This appeal is captioned "United States v. Aherndt," but we will spell appellant's surname as he spelled it at trial: Ahrendt. 2 Other individuals were active in the conspiracy, but their roles are not relevant here.

-2- On arrival in Bangor, some of the cocaine would be taken

to Ahrendt's apartment, although most of it was stored elsewhere in

Bangor. If there was not enough cocaine at Ahrendt's apartment,

someone other than Ahrendt would be dispatched to another location

in Bangor to replenish supplies. In Ahrendt's apartment, the

cocaine was weighed, packaged and sold to buyers who would come to

the apartment. Ahrendt was one of the people who would weigh the

cocaine. He was also one of the sellers, although Deloatch sold

the lion's share. In addition, some of the powder cocaine was

cooked into crack cocaine in the apartment. Brimley did most of

the cooking, although Ahrendt also cooked small quantities of

powder into crack. If either Deloatch or Brimley were present, one

of them would take money from the drug sales to store it elsewhere

in Bangor; if not, Ahrendt would hold the money until Deloatch or

Brimley arrived.

At his trial, Ahrendt acknowledged that he used drugs

himself, sold drugs, and gave drugs to other people. He also

acknowledged that he weighed cocaine with his own scales, packaged

it, and cooked powder cocaine into crack. He testified, however,

that he was not part of the conspiracy, that he was an "outsider"

and "kept in . . . the dark." He testified that he "didn't have

any specific arrangements with these individuals . . . . They came

and went, just like everybody else that came in my door."

-3- Several months of police investigation culminated in the

arrest of seven people, including Ahrendt, in April 2004. After

Ahrendt's arrest and his pre-trial incarceration at Fort Devens,

Massachusetts, issues arose as to his competency to stand trial.

On motion of his counsel, Ahrendt was evaluated by a forensic

psychologist on staff at Fort Devens who submitted a written report

to the court. This report relied on Ahrendt's mental health

records from both the Bangor Mental Health Institute (BMHI) and

from Acadia Hospital in Bangor, as well as on interviews with

Ahrendt.

Ahrendt had been hospitalized at BMHI from December 2001

to April 2002. He was treated for symptoms including suicidal

impulses, poor concentration and disorganized thoughts; treated

with antidepressants and an antipsychotic drug; and given multiple

diagnoses (Major Depressive Disorder, Posttraumatic Stress Disorder

and Antisocial Personality Disorder). Between 2002 and 2004,

Ahrendt was treated on an outpatient basis at Acadia Hospital in

Bangor for "mood alterations, vague complaints of auditory

hallucinations, and multiple suicide threats." He was further

diagnosed with Major Depression, Recurrent, With Psychotic

Features; History of Posttraumatic Stress Disorder Not Otherwise

Specified; and Personality Disorder with Histrionic and

Narcissistic Features. He was treated with a variety of

-4- psychotropic medications. Neither set of records discussed

Ahrendt's substance use.

The report posited that because Ahrendt was using drugs

during the pendency of his prior hospitalizations, his "degree of

drug use could possibly explain" the symptoms reported in his

medical records. The report concluded by diagnosing Ahrendt with

Personality Disorder Not Otherwise Specified and with substance

use-related diagnoses, but noted that these diagnoses did not

"appear to be impairing his level of functioning to consult with

his attorney or make rational decisions regarding his legal

matters."

After the submission of the report, the district court

held a competency hearing in January 2005. At that hearing, the

report was admitted into evidence without objection.3 The court

also engaged in a discussion with Ahrendt about his competency,

asking if he understood what was happening and explaining the legal

standard for competency in response to Ahrendt's questions. At the

conclusion of the hearing, the court ruled Ahrendt competent to

stand trial, pledging to "remain diligent regarding [the

competency] issue during the course of any further proceedings."

3 Defense counsel mentioned that Ahrendt disagreed with some of the specific statements that Ahrendt had allegedly made to the psychologist, but acknowledged that those statements did not affect the conclusions in the report.

-5- At around this time, Ahrendt began sending letters to the

court. The letters expounded upon Ahrendt's personal philosophy

and view of the justice system.4 At an April 2005 hearing on an

unrelated issue, the court commented that "the letters could be

interpreted as threatening." Ahrendt's counsel responded that the

letters were not threatening, and that Ahrendt was "a person who

just lives in a different world than the rest of us."

At a May 2005 hearing on a request for a continuance,

Ahrendt's counsel reported that his client had been evaluated by

mental health professionals and in counsel's opinion, "there are

some serious problems there." At a July hearing on counsel's

motion to withdraw, which was denied, the court questioned Ahrendt

about his relationship with counsel. Ahrendt stated, "it basically

comes down to, sir, [that] your law stands against my beliefs, and

I'd like to represent my beliefs against your law, and that's it.

My law stands for love, and yours stands against the Almighty God,

and that's the battle." Ahrendt explained that he wanted to

4 We present a representative sampling of excerpts from Ahrendt's letters. More than thirty letters were filed with the district court between April 2005 and January 2007. (1) "Follow your way sir and impose your justice. I hope your soul was worth it!" (2) "I liked our chat in your room of truth. I desire, and would appreciate if we could do it again?" (3) "I have already shown the Truth of you and your kind and of what is it. HAHAHA! This Trial is 'you' nailing 'your' own coffin shut. For Real. You seem to believe you are what makes up Reality, the Truth. NOT! Wow, what a lust sir."

-6- "change [the justice] system" and asked the court, "Why don't you

help me do what I'm trying to accomplish?"

As trial approached, Ahrendt's counsel filed a notice of

intent to introduce as expert evidence the testimony of clinical

psychologist Dr. Jeffrey Aston. Based on interviews with Ahrendt,

Dr. Aston had prepared testimony that agreed with the Fort Devens

Report that Ahrendt was "technically competent," and offered

further explanation of Ahrendt's point of view and behavior.

[Ahrendt] is obviously given to a peculiar turn of mind which interprets everything in terms of a highly abstracted philosophy of life . . . . In Mr. Ahrendt's view, the world consists of persons who are motivated either by negative selfishness ("Lust") or positive altruism ("Love"). For him, drug use resembles an almost sacramental consumption of what the "Divine" Lovingly provides us, while society's war on drugs is a misguided Lust to control what others do.

The government filed a motion in limine seeking to exclude this

testimony. The court agreed with the government and ruled the

proffered testimony inadmissible under Fed. R. Evid. 403,

explaining that the testimony had "a significant potential for

confusing and misleading the jury and causing unfair prejudice."

The court noted that such testimony might invite jury

nullification, stating, "[t]he sincerity of Mr. Ahrendt's belief

that he is entitled to the 'sacramental consumption' of drugs is

not properly before the Court."

-7- Several weeks before trial, the court permitted Ahrendt

to waive his right to counsel and represent himself, with his

former counsel serving as standby counsel. At this time, his

counsel had expressed concern that Ahrendt would not pursue a

sensible defense strategy. The court specifically asked if counsel

was requesting a reevaluation of Ahrendt's competency, and counsel

replied that he could not make such a request "in good faith."

At trial in September 2005, Ahrendt cross-examined the

government's witnesses, eliciting testimony bearing on the

credibility of at least one witness, and made a successful hearsay

objection. Ahrendt also testified in his own defense. Despite his

efforts, the jury convicted Ahrendt of conspiracy to distribute,

and to possess with the intent to distribute, both cocaine and

cocaine base under

& 841(a)(2).

In the presentence investigation report ("PSR") prepared

for Ahrendt's sentencing, he was given a two-level leadership

enhancement under U.S.S.G. § 3B1.1(c) for his role in the

conspiracy. The resulting offense level was thirty-four. The PSR

also listed four prior convictions. Although Ahrendt had been

sentenced for three of those offenses on the same day, and the

three offenses had occurred within one week of each other and had

similar characteristics, each conviction was counted separately, as

a "prior sentence" under § 4A1.2(a)(2). Ahrendt was accordingly

awarded eight criminal history points, putting him in Criminal

-8- History Category ("CHC") IV. See § 4A1.1 (two points awarded for

each prior sentence of imprisonment of at least sixty days).

Ahrendt's Guidelines Sentencing Range ("GSR"), based on an offense

level of thirty-four and a CHC of IV, was 210 - 262 months.

The court remarked at the commencement of the sentencing

hearing in January 2006 that it wanted to be as fair as possible to

Ahrendt, who responded, "Let me go home?" When Ahrendt was asked

if he objected to any of the findings, he stated that he objected

to "[t]he whole thing." The district court responded, "Defendant's

objection is noted and overruled" and the findings of the PSI were

adopted. Ahrendt was sentenced to the low end of the GSR, 210

months' imprisonment, followed by four years of supervised release.

The court asked Ahrendt if he had any specific objection to those

terms, to which Ahrendt responded, "Disrespect is disrespect.

That's all right." The court stated, "To the extent that is

interpreted as an objection, the objection's overruled."

On appeal, Ahrendt argues that the district court erred

in declining to order a reevaluation of his competency. He also

claims error in the court's exclusion, under Fed. R. Evid. 403, of

the psychological evaluation prepared by Dr. Aston. Ahrendt also

alleges sentencing errors in both the leadership enhancement and

the separate counting of his prior convictions.

-9- II. Discussion

A. Competency

A district court's competency determination, made after

a hearing on the defendant's competency to stand trial, will be

upheld unless clearly erroneous. United States v. Lebrón,

, 32 (1st Cir. 1996).

Ahrendt argues that despite the court's finding at the

competency hearing in January 2005 that he was in fact competent to

stand trial, later events cast sufficient doubt on that conclusion

such that the court should have ordered a reevaluation.

Determining competency to stand trial involves an inquiry

into whether the defendant "has sufficient present ability to

consult with his lawyer with a reasonable degree of rational

understanding -- and whether he has a rational as well as factual

understanding of the proceedings against him." Dusky v. United

States,

(1960) (per curiam). The obligation to

determine competency to stand trial is continuing, and persists

throughout a proceeding including through the sentencing phase.

See Drope v. Missouri,

(1975) ("Even when a

defendant is competent at the commencement of his trial, a trial

court must always be alert to circumstances suggesting a change

that would render the accused unable to meet the standards of

competence to stand trial.") A court must order a competency

hearing on motion from either the defense or the government, or sua

-10- sponte, "if there is reasonable cause to believe that the defendant

may presently be suffering from a mental disease or defect

rendering him mentally incompetent to the extent that he is unable

to understand the nature and consequences of the proceedings

against him or to assist properly in his defense."

(emphasis added).

Ahrendt points specifically to two sets of communications

-- statements made by his counsel throughout the proceedings, and

Ahrendt's own statements and letters -- that he maintains

demonstrated the need for a reevaluation of his competency.

Ahrendt points to his counsel's statements that "[Ahrendt] is a

person who just lives in a different world than the rest of us" and

"there are some serious problems there," and also cites comments at

a September 2005 hearing reflecting concern over Ahrendt's defense

strategy. In addition Ahrendt argues that his own statements

indicate both that he was not fully aware of the nature of his

trial and sentencing, and that he was generally divorced from

reality. He cites his request that the trial court help him

accomplish his goal of changing the justice system, his comment at

his sentencing "Let me go home?" and the letters that he continued

to send to the court.

Neither counsel's statements nor Ahrendt's own statements

reach the "reasonable cause" threshold to require a sua sponte

hearing. Although defense counsel has a "unique vantage for

-11- observing whether her client is competent," United States v.

Muriel Cruz,

(1st Cir. 2005), counsel's observations

about "serious problems" and Ahrendt "liv[ing] in a different

world" are not of a tenor that would suggest cause to conduct a

competency evaluation. This is particularly true in the context of

Ahrendt's performance at trial, where he made a successful hearsay

objection and cross-examined government witnesses in an attempt to

show that the requirements for proving a conspiracy were not met.

While ultimately unsuccessful, his performance belies the

contention that he was "unable . . . to assist properly in his

defense."

. We also note that after the

competency hearing, the district court took an active role in

assessing Ahrendt's competency through the pendency of the

proceedings. The court and Ahrendt had lengthy discussions on

multiple occasions -- the hearings in July and September, at trial,

and at sentencing -- in which the judge questioned Ahrendt about

his understanding of various aspects of the process.

As to Ahrendt's own statements, we note that a

defendant's failure to grasp how the legal system and the

sentencing process operate can constitute reasonable cause for a

court to sua sponte order a competency evaluation. See, e.g.,

United States v. Giron-Reyes,

(1st Cir. 2000)

(defendant's apparent inability to understand critical aspects of

the proceedings, including the role of the jury and the Sentencing

-12- Guidelines, suggested that defendant may not have been competent).

But Ahrendt's comments do not convey the lack of understanding

evidenced in Giron-Reyes. Ahrendt both demonstrated an

understanding of and participated in the proceedings. Although

Ahrendt argues that his letters to the court changed demonstrably

in tone and content during the pendency of the proceedings such

that the letters should have triggered a reevaluation of his

competency, counsel reported prior to trial that the letters had

been reviewed by Dr. Aston, who had not expressed an opinion that

there had been a change in Ahrendt's competency.

Short of reasonable cause to believe that Ahrendt was

mentally incompetent to stand trial, the district court was not

obligated to order a reevaluation. In light of Ahrendt's

demonstrated understanding and participation in the trial, neither

his own communications alone, nor in combination with statements by

counsel, constituted reasonable cause. Ahrendt had been evaluated

by qualified mental health professionals, both prior to the initial

competency hearing (the Fort Devens Report) and after it (the Aston

testimony). We have interpreted a qualified mental health

professional's report to be an important factor for the trial court

to consider when determining competency. See United States v.

Bruck,

(1st Cir. 1998) (when psychiatrist has found

defendant to be competent, trial court need not hold a competency

hearing absent extenuating circumstances); see also Lebrón, 76 F.3d

-13- at 32 (same). Here, the district court was presented with first

such reports, both of which concluded that Ahrendt was competent to

stand trial. We cannot say that it was clear error for the

district court to decline to order a reevaluation of Ahrendt's

competency to stand trial.

B. 403 Ruling

Evidentiary rulings of the district court are reviewed

for an abuse of discretion. United States v. Turner,

(1st Cir. 2007).

Ahrendt argues that because the government was required

to prove specific intent to convict him of the conspiracy charge,

the exclusion of the proffered expert testimony of Dr. Aston

(describing Ahrendt's view of drug use as "sacramental

consumption") was erroneous. Such testimony, he says, would have

been probative to his ability, vel non, to form the requisite

intent.

A defendant is allowed to present mental-condition

evidence short of establishing insanity under

(a) if

the evidence is relevant to determining the defendant's ability to

form the requisite intent to commit the crime. United States v.

Schneider,

(1st Cir. 1997). Even if relevant,

though, such evidence may be excluded if its "probative value may

be substantially outweighed by confusion or delay" or if the

evidence is from an expert and fails to "meet the further

-14- requisites of scientific reliability and helpfulness to the jury."

; Fed. R. Evid. 702.

The government is indeed required to prove specific

intent, see

(a)(2), but Dr. Aston's testimony would

have had no bearing on this question. Ahrendt's beliefs in a

higher law are not probative of his ability to form the requisite

intent. See United States v. White,

(1st Cir.

1985) (evidence of motivation for violating law, in this case

influence of defendant's mother, irrelevant if defendant is capable

of forming specific criminal intent.) Moreover, even if relevant,

Dr. Aston's testimony had significant potential to confuse or

mislead the jury. As the district court said,

Dr. Aston may not give voice to and implicitly legitimize what he describes as Mr. Ahrendt's 'deviant' set of values without effectively promoting jury nullification . . . . Further, Dr. Aston's testimony could mislead the jury into thinking that Mr. Ahrendt's idiosyncratic philosophy amounts to a form of temporary insanity or ameliorates the offense . . . .

See Schneider,

(in assessing medical evidence

offered regarding to defendant's ability to form requisite intent,

district court is "closer to the case" and has "comparative

advantage"). The district court did not abuse its discretion in

excluding the testimony.

C. Sentencing

The government argues that although Ahrendt may have made

two generic objections at sentencing, he never objected to the

-15- particular issues he now appeals: the leadership enhancement under

U.S.S.G. § 3B1.1(c), and the classification of his prior

convictions under § 4A1.2(a)(2). See United States v. Jimenez,

(1st Cir. 2007) (defendant's failure to object to

particular findings of PSR waives objection). Ahrendt told the

court that he objected to the "whole thing" and that "[D]isrespect

is disrespect. That's all right." Even we were to adopt a

generous stance in light of Ahrendt's pro se status at sentencing,

his generic objections cannot be fairly interpreted as giving

notice to the court of these two very specific issues. Thus we

apply plain error review. United States v. Olano,

(1993).

To succeed on plain error review, Ahrendt must show: "(1)

that an error occurred (2) which was clear or obvious and which not

only (3) affected the defendant's substantial rights, but also (4)

seriously impaired the fairness, integrity, or public reputation of

judicial proceedings." United States v. Duarte,

(1st Cir. 2001).5 With respect to factual determinations, "[an]

5 We have at times applied a flexible standard in the sentencing context with respect to the third and fourth prongs of plain error review. United States v. Antonakopoulos,

(1st Cir. 2005); see also United States v. Dominguez Benitez,

(2004). To meet the third prong, that the error "affected the defendant's substantial rights" in the sentencing context, a defendant must show on the sentencing record "a reasonable probability that, but for the error, the district court would have imposed a different, more favorable sentence." United States v. Gilman,

(1st Cir. 2007) (citing United States v. Turbides-Leonardo,

(1st Cir. 2006)) (internal

-16- error cannot be clear or obvious unless the desired factual finding

is the only one rationally supported by the record below." United

States v. Goodhue,

(1st Cir. 2007) (quoting United

States v. Donnelly,

(1st Cir. 2004)) (internal

quotation marks omitted). Where the issue is a district court's

interpretation of the Guidelines, we will not find clear or obvious

error if the "challenged issue of law is unsettled." Goodhue,

.

We can dispense quickly with Ahrendt's objection to the

leadership enhancement as he fails to meet even the first hurdle of

plain error review. Ahrendt makes two arguments: first, that the

record does not adequately support the imposition of a leadership

enhancement; and second, that the district court inadequately

considered the

(a) factors in this regard.

The Guidelines impose a two-level increase to a

defendant's offense level based on that defendant's status -- that

he or she acted as "an organizer, leader, manager, or supervisor in

any criminal activity other than [an activity involving five or

more participants or that was otherwise extensive]." U.S.S.G. §

3B1.1(c); see also United States v. Thiongo,

(1st Cir. 2003); United States v. Tejada-Beltran,

, 111

quotation marks omitted). To meet the fourth prong, a defendant must then show that "leaving the error uncorrected would cause a miscarriage of justice." United States v. McCoy,

(1st Cir. 2007).

-17- (1st Cir. 1995). Relevant factors to consider include "the degree

of participation in planning or organizing the offense, the nature

and scope of the illegal activity, and the degree of control and

authority exercised over others." U.S.S.G. § 3B1.1 cmt. n.4.

Ahrendt's leadership status is borne out by the record.

He may not have been the ringleader of this operation, but he had

some authority within the conspiracy in that he rented the

apartment where drugs were processed, packaged and sold, and held

money for short periods of time. He also played a role in

"organizing," as he provided the clientele in Bangor. Classifying

a defendant's role in a particular criminal enterprise is a "fact-

specific task," Thiongo,

, and the district court's

determination that Ahrendt's role merited a two-level leadership

enhancement was not error.

Further, the district court did not, as Ahrendt now

argues, inadequately consider § 3553(a)(6): the "need to avoid

unwarranted sentencing disparities among defendants with similar

records who have been found guilty of similar conduct." Ahrendt

maintains that the disparity between his sentence of 210 months and

Brimley and Deloatch's sentences of forty-two and sixty-six months,

respectively, was unwarranted. But in addition to having different

criminal history profiles, Brimley and Deloatch pled guilty and so

were not "similarly situated" for sentencing purposes. See United

States v. Tom,

(1st Cir. 2007), vacated and

-18- remanded on other grounds in Tom v. United States,

(2008). Moreover, "section 3553(a)(6) aims primarily at the

minimization of disparities among defendants nationally." Martin,

520 F.3d at 94. Again, there was no error in the imposition of the

leadership enhancement.

Ahrendt's more significant objection to his sentence

concerns his argument that his prior convictions were erroneously

counted as separate "prior sentences" under § 4A1.1(a)(2).6

Specifically, Ahrendt contends that the district court should have

"consolidated" three of his four prior convictions because they

occurred "in a single temporal cluster" and because he was

sentenced for them by the same court on the same date.

Ahrendt was sentenced in January 2006 under the 2004

version of the Guidelines. The relevant language provides: "prior

sentences [for non-violent crimes] imposed in unrelated cases are

to be counted separately. Prior sentences imposed in related cases

are to be treated as one sentence . . . ." U.S.S.G. § 4A1.2(a)(2)

(2004). "Related cases" are defined in the application notes to §

4A1.2(a)(2) as follows: "[P]rior sentences are considered related

6 Ahrendt also argues on appeal that the court inadequately considered the

(a) factors in this regard. He contends that § 3553(a)(1) compelled consideration of his mental health issues in analyzing whether his prior convictions were unrelated. He does not develop any argumentation as to why those mental health issues are relevant to this determination, and we consider this argument waived. United States v. Zannino,

(1st Cir. 1990).

-19- if they resulted from offenses that (A) occurred on the same

occasion, (B) were part of a single common scheme or plan, or (C)

were consolidated for trial or sentencing."

at cmt. n.3.

The "consolidation" factor is at issue here. At the time

of Ahrendt's sentencing, we had made clear that with respect to

consolidation,

When dealing with 'offenses that are temporally and factually distinct (that is, offenses which occurred on different dates and which did not arise out of the same course of conduct), charges based thereon should not be regarded as having been consolidated (and, therefore 'related') unless the original sentencing court entered an actual order of consolidation or there is some other persuasive indicium of formal consolidation apparent on the face of the record . . .

United States v. Martins,

(1st Cir. 2005)

(quoting United States v. Correa,

(1st Cir. 1997).

Moreover, our rule was that a defendant could not show

consolidation merely by indicating that the "sentence was imposed

by the same judge at the same time."

(emphasis added).

In Ahrendt's case, the district court committed no error,

much less plain error, when it counted Ahrendt's three convictions

separately under § 4A1.2(a)(2). The record evidence supports a

finding that the offenses were temporally and factually distinct.

Ahrendt's three offenses occurred in Maine on March 14, March 15,

and March 19, 2001 respectively. The first two of these were

violations of a protection from abuse order prohibiting Ahrendt's

-20- contact with his ex-spouse and the third was a violation of a

condition of release that he not have contact with her. Moreover,

the record reveals neither a formal order consolidating the charges

nor any other evidence of formal consolidation.

Nevertheless, on November 1, 2007, while this appeal was

pending, the Sentencing Commission adopted a non-retroactive

amendment7 on this topic, in response to conflicts among the

circuits. U.S.S.G. § 4A1.2(a)(2) (2007) & Supp. to App. C,

Amendment 709 (2007). The amendment strikes the term "related

cases" and the above definition from the 2007 Guidelines, and adds

new language such that § 4A1.2(a)(2) now reads: "[P]rior sentences

are counted separately unless (A) the sentences resulted from

offenses contained in the same charging instrument; or (B) the

sentences were imposed on the same day. Count any prior sentence

covered by (A) or (B) as a single sentence." (emphasis added).

Because Amendment 709 is non-retroactive, however, Ahrendt is not

entitled to the benefit of this amendment which we have observed

7 Retroactivity of amendments to the Guidelines is determined by the inclusion of such an amendment under U.S.S.G. § 1B1.10(c) (2007). If an amendment is so listed, a defendant is permitted to move for a reduction in sentence under

(c)(2). An amendment not listed in § 1B1.10(c) does not have retroactive effect. Retroactivity in the Guidelines context is explicitly distinct from the effect of statutory changes. See United States v. Havener,

(1st Cir. 1990) (Breyer, J.) (distinguishing "common-law presumption that the repeal of a criminal statute resulted in the abatement of all prosecutions which had not reached final disposition in the highest court authorized to review them" from retroactivity of amendments to Guidelines (internal quotation marks and citations omitted)).

-21- "go[es] beyond any circuit's reading of the previous rule in a

manner favorable to the defendant." See United States v. Godin

("Godin II"),

(1st Cir. 2008).

That said, we understand that if Amendment 709 had been

in operation during Ahrendt's sentencing, his three convictions

would have been grouped. Although the three charges underlying the

convictions had separate docket numbers, and although he was

sentenced for each conviction separately, all three sentences were

imposed on the same day. See § 4A1.2(a)(2) ("[P]rior sentences are

counted separately unless (A) the sentences resulted from offenses

contained in the same charging instrument; or (B) the sentences

were imposed on the same day. Count any prior sentence covered by

(A) or (B) as a single sentence.").

Ahrendt is foreclosed from arguing that, despite

Amendment 709's non-retroactivity, we should nonetheless remand for

resentencing in light of the amendment. Although a non-retroactive

amendment could trigger a remand if that amendment is deemed

"clarifying" rather than "substantive," in Godin II we concluded

that Amendment 709 was substantive and not intended to be applied

retroactively.

.

Nevertheless, Godin II suggests that another course may

be available. Like Ahrendt, Godin had prior convictions for which

-22- she had been sentenced on the same day,8 and, as in this case, the

convictions had been counted separately in her PSR.

Also

similar to the present case, at the time of Godin's sentencing the

pre-Amendment version of the guidelines was in force, and we made

clear in our decision that Godin's GSR remained valid.

.

Nevertheless, motivated by the discretion vested in district courts

after Gall v. United States,

(2007), to consider the

Sentencing Commission's current thinking, we remanded for

resentencing. We suggested that the amendment was a statement of

the "Commission's current policy position . . . [that] may have

some influence on the judge's ultimate discretionary choice of

sentence." Id. at 136.

The government argues that taking a similar course here

is not justified and seeks to distinguish this case from Godin II

in three ways.

First, the government observes that, unlike Godin who

preserved her consolidation argument below, Ahrendt failed to

present the claim at sentencing and therefore must satisfy the

exacting plain error standard. We do not think this distinction is

of great significance in this case. We did not dwell on the

standard of review in our decision to remand for resentencing in

Godin II. Simply put, neither defendant was entitled, under either

8 The prior offenses at issue were two burglaries of the same apartment building in the same week, for which she was sentenced on the same day.

-23- a harmless error or plain error standard of review, to a remand

because neither could show that an error occurred at sentencing.

Second, the government argues that Ahrendt, unlike Godin,

never requested a departure or variant sentence. We do not think

that this fact forecloses a remand. In Godin II, our decision to

remand did not hinge on the fact that Godin sought a departure or

variant sentence. Moreover, although the district court in this

case noted Ahrendt's failure to pursue either of those options at

sentencing, neither did the court suggest that it would be opposed

to granting such a request, had one been made. Finally, we remain

cognizant of Ahrendt's pro se status at sentencing. Although this

status does not excuse him from the obligation to present colorable

arguments at sentencing, under the circumstances of this case we do

not weigh heavily Ahrendt's pro se failure to press an argument for

a departure or variant sentence on the basis that U.S.S.G. §

4A1.2(a)(2), as it stood at the time, resulted in an unduly harsh

sentence.

Third, the government points out that in Godin II the

application of Amendment 709 would have prevented the defendant

from being designated a career offender, thus significantly

reducing Godin's Guidelines range. Therefore, its argument runs,

we had a greater reason to remand for resentencing in Godin's case

than here. Although perhaps not irrelevant, the difference in

impact on the Guidelines calculation ultimately is a difference in

-24- degree. In Godin II, we emphasized the posture of the case in

explaining our decision to remand. We observed that, "[T]he

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." Id. at 135. The

posture of this case is the same.

Ultimately, given the similarities between this case and

Godin II, we think a remand is justified. Although the district

court is under no obligation to modify Ahrendt's sentence, we

nevertheless think it prudent to allow the court the opportunity to

consider the Sentencing Commission's updated views.

For the reasons explained above, we affirm Ahrendt's

conviction but remand for resentencing in light of Amendment 709.

-Dissenting Opinion Follows-

-25- MERRITT, Circuit Judge, dissenting. I am under a duty as

an appellate judge to review the length and reasonablensss of

sentences, and I regard the 18-year sentence here for this

nonviolent crime as unreasonably long and not sufficiently

explained by the District Court.

With regard to the 18-year sentence, I do not agree with

the District Court’s two level enhancement of Ahrendt for

performing a “leadership role” in the drug conspiracy and the

court’s failure to address the large disparity (12 and 14 years)

between Ahrendt’s sentence and the sentence of the real leaders and

promoters of this group, co-conspirators Brimley and Deloatch. The

pre-sentence report indicates that these two leaders brought in the

drugs from Boston, collected the money and gave the instructions to

the other members of the conspiracy. The pre-sentence report

describes Ahrendt’s role in the offense as follows: “Aherndt both

sells cocaine and other drugs that include Percocet, Vicoden,

Oxycontin and Methadone. In addition to sales, he was engaged in

the cooking of the powder cocaine.” Then the pre-sentence report

makes the following recommendation as to Ahrendt’s sentence:

Adjustments for Role in the Offense: Pursuant to U.S.S.G. §3B1.1(c), there is a 2 level increase because the defendant was a manager or organizer of a criminal activity that involved five or more participants or was otherwise extensive. Although this office does not believe that the defendant held as high of management position as Brimley or Deloatch in this conspiracy, he was clearly the organizer of the distribution of crack and was involved in other drug distributions. At the sentencing hearing the defendant was pro se and appears to

object to all of the upward adjustments in the pre-sentence report.

He has obviously suffered from mental illness and remains on the

borderline, as the sentencing judge clearly recognized:

THE COURT: I’m still not quite sure what to make of you. You certainly present as somebody who is somewhat iconoclastic, maybe a bit eccentric, and with a dose of nihilism, and I am not denying that you have a right to your own views about your use of drugs, and there is certainly a certain subsection of American society that would agree with you, but Congress doesn’t.

I do not believe there are sufficient facts stated in the

presentence report or by the court below to justify the

enhancement. On this subject, all the sentencing judge said was:

Three, pursuant to United States Sentencing Guideline Section 3B1.1(c), as the defendant was a manager or organizer of a criminal activity that involved five or more participants or was otherwise extensive, there is a two-level increase, bringing the offense level to 34.

There is no indication of what participants Ahrendt managed or how

he “organized, led, managed or supervised them.” See requirements

of United States Sentencing Guidelines §3B1.1.

Neither can I find a justification for a 12-year

disparity between Ahrendt’s sentence and the real leaders of the

group. It is true that the two leaders pled guilty and did not go

to trial. But Ahrendt has the right of trial by jury and should

- 27 - not be punished for exercising it.9 The sentence also fails to

acknowledge the existence of § 3553(a)(6) which requires the

sentencing judge to take into account the need to “avoid

unwarranted disparity among defendants in the same case or provide

a reasonable justification for this disparity.”

9 See THE FEDERALIST NO. 83 (Alexander Hamilton) (“The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government.”); see also Apprendi v. New Jersey,

(2000) (Scalia, J., concurring) (noting that “the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights”).

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