United States District Court, D. Maine
ORDER DENYING MOTION TO CONTINUE SENTENCING
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
sentencing on a revocation of his supervised release and on a
new criminal conviction, on March 1, 2018 Robert Goguen moved
to continue the sentencing hearing. Def.'s Mot. to
Continue Sentencing (ECF No. 77) (Def.'s
Mot.). The Government opposed his motion. Gov't
Resp. in Opp'n to Def.'s Mot. to Continue
Sentencing (ECF No. 78). Technically, a sentencing
hearing has not yet been scheduled because the parties agreed
to file memoranda on whether Mr. Goguen faces a mandatory
minimum sentence. The upshot is that the Court considers the
pending motion to be a motion to stay the case until at least
July 2018. Mr. Goguen's March 1, 2018 motion to continue
sentencing follows his September 15, 2017 entry of a guilty
plea to the new criminal charge, possession of child
pornography, a violation of 18 U.S.C. § 2252A(a)(5)(B),
and his admission on the same date of charges that he
violated conditions of supervised release on his earlier
conviction for failure to register as a sex offender, a
violation of 18 U.S.C. § 2250(a)(1).
basis of Mr. Goguen's motion is that he has filed a
petition for post-conviction relief seeking to vacate his
failure to register as a sex offender conviction in
United States v. Goguen, 1:11-cr-03-JAW-1, and he
wants the imposition of his sentence to await the resolution
of his petition for post-conviction relief. Although Mr.
Goguen requests that the sentencing hearing be continued
until July 2018, he concedes that he may ask for further
continuances if the petition for post-conviction relief is
not resolved by then. Def.'s Mot. at 1, n.1.
anticipation of a sentencing hearing on the new criminal
charge and on the violation of a condition of supervised
release, the Probation Office (PO) prepared a Presentence
Investigation Report (PSR) and a Revocation Report (RR), both
of which contained proposed findings under the United States
Sentencing Guidelines. In the PSR, the PO calculated a total
offense level for the new criminal charge of twenty-seven and
assigned a criminal history category IV for a guideline
sentence range of 100 to 125 months. PSR at 22.
However, as the PO concluded that Mr. Goguen is subject to a
statutory mandatory minimum sentence of 120 months under 18
U.S.C. § 2252A(b)(2), the PSR's recommended
guideline sentence range is 120 to 125 months. Id.
RR, the PO found a grade of violation C, a criminal history
category III, and a guideline range of eight to fourteen
months. RR at 9. The bases for the revocation
petition are Mr. Goguen's failure to participate in sex
offender treatment and his new criminal conduct. Id.
Goguen is successful in his petition for post-conviction
relief, he says the effect on the guideline calculations for
the new criminal conviction will be that his criminal history
score will be reduced by five points. Def.'s
Mot. at 2. He would eliminate three points for the
failure to register offense and two points for being on
supervised release when he committed the new offense.
Id. at 2 n.2. Under the current PSR, the PO
calculated his total criminal history points at eight for a
criminal history category of IV. PSR ¶¶
27-37. If Mr. Goguen is successful in his post-conviction
petition, his criminal history score would be reduced to
three for a criminal history category of II. The result would
be a newly-calculated guideline sentence range of
seventy-eight to ninety-seven months, based on the same total
offense level of twenty-seven. He says that he would also
eliminate the revocation sentence because, if the underlying
conviction is vacated, he should not have been on supervised
release and therefore he could not have violated its
Goguen is separately challenging whether the ten-year
mandatory minimum under 18 U.S.C. § 2252A(b)(2) applies.
Def.'s Mot. at 3. If he is unsuccessful in this
challenge and is successful in his post-conviction petition,
he would still be subject to the statutory minimum of 120
months, making the guideline range equal to the statutory
minimum because he has previously been convicted of a
qualifying sex offense, Sexual Assault-Second Degree. See
PSR ¶ 31; 18 U.S.C. § 2252A(b)(2)
(“Whoever violates . . . subsection (a)(5) shall be . .
. imprisoned not more than 10 years . . . but if . . . such
person has a prior conviction . . . under the laws of any
State relating to . . . abusive sexual conduct involving a
minor . . ., such person shall be . . . imprisoned for not
less than 10 years nor more than 20 years”); U.S.S.G.
§ 5G1.1(b) (“Where a statutorily required minimum
sentence is greater than the maximum of the applicable
guideline range, the statutorily required minimum sentence
shall be the guideline sentence”). If he is successful
in the ten-year mandatory minimum challenge and successful in
his post-conviction proceeding, his guideline sentence range
would drop to seventy-eight to ninety-seven months.
of this backdrop, the Court perceives no reason to delay the
proceedings leading to Mr. Goguen's sentencing hearing.
Mr. Goguen's challenge to the statutory mandatory minimum
sentence of 120 months is unrelated to his post-conviction
petition in Maine and there is no reason to delay resolution
of that issue. If Mr. Goguen is unsuccessful in challenging
the mandatory minimum sentence, even if he is successful in
his post-conviction petition, he would still face a mandatory
sentence of 120 months. The only difference would be that the
guideline range would be 120 months as opposed to 120 to 125
Court is unclear why Mr. Goguen contends (if he does) that
the question of the applicability of the mandatory minimum
should not be resolved regardless of the status of the
petition for post-conviction relief. In fact, the Court set
deadlines for the submission of memoranda from him and the
Government, and those deadlines remain in force. The last
memorandum was filed on April 20, 2018. In all likelihood,
the question of the applicability of the mandatory minimum
will be resolved before July 2018. There is therefore no
reason to stay the filing of memoranda or the decision on
Goguen's motion to continue seems to assume that his
post-conviction petition will not only vacate the federal
failure to register conviction, but that the Government will
be prohibited from retrying him for that charge. Although
some of his contentions, namely his constitutional objections
to the conviction, could theoretically result in the
Government being barred from retrying him, most of his
post-conviction issues would not prohibit the Government from
retrying him on the same charge. See Mot. to Vacate, Set
Aside or Correct Sentence (ECF No. 194), Supp. to
Mot. to Vacate, Set Aside or Correct Sentence (ECF No.
199); Mot. to Further Amend Mot. to Vacate, Set Aside or
Correct Sentence (ECF No. 215), United States v.
Goguen, 1:11-cr-00003-JAW. Even if Mr. Goguen were
completely successful in his petition for post-conviction
relief and were successful in his challenge to the mandatory
minimum, in his best case, he still faces a guideline range
of seventy-eight to ninety-seven months on the new crime.
if he were successful in vacating his earlier conviction and
the Government had a right to retry him, it is unlikely that
the revocation petition would be void and he would still face
an additional eight to fourteen months on the revocation of
supervised release, the revocation range being unaffected by
the post-conviction petition. See U.S.S.G. §
7B1.4(a). Under U.S.S.G. § 7B1.3(f), a portion or all of
the sentence on the revocation petition should normally be
consecutive to the sentence on the new crime. Mr. Goguen has
been incarcerated since November 13, 2015 on both the new
crime and the revocation petition, a period of about
twenty-nine months. If the Court sentences Mr. Goguen to a
guideline sentence, even if both his mandatory minimum
argument and his post-conviction petition are resolved in his
favor, he is in no danger of serving more time in prison than
the lower combined guideline range of eighty-six months.
the law, although the sentencing judge is allowed to vary
from the guideline sentence range, the Court is required to
consider the guideline sentence range in its 18 U.S.C. §
3553(a) analysis. United States v. Kimbrough, 552
U.S. 85, 108 (2007); United States v. Booker, 543
U.S. 220, 245 (2005). If the guideline sentence (however it
ultimately is calculated) roughly approximates Mr.
Goguen's final sentence, taking the lowest possible
guideline range as a proxy for the final sentence, Mr.
Goguen's petition for post-conviction relief should be
resolved before he is in danger of any over-served time.
contrast, however, the realistic length of time for final
resolution of his post-conviction petition is certainly not
July 2018, especially in view of the likelihood that, if he
is unsuccessful, he may seek to appeal any adverse trial
court ruling. Thus, the implication of his motion to continue
is a delay not of a couple of months, but of many months.
Court views Mr. Goguen's position on the post-conviction
petition as akin to Federal Rule of Evidence 609(e), which
allows the admission of a conviction that is under appeal.
Here, the fact that Mr. Goguen is challenging his earlier