USA v. GOGUEN

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA )
)
v. ) 1:16-cr-00167-JAW-1
) 1:11-cr-00003-JAW-1
ROBERT GOGUEN )
ORDER DENYING MOTION TO CONTINUE SENTENCING HEARING
Facing 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).
The 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
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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.
In 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.
In the 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. at 2.
If Mr. 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
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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 conditions.
Mr. 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
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mandatory minimum challenge and successful in his post-conviction proceeding, his
guideline sentence range would drop to seventy-eight to ninety-seven months.
In view 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 Maine1 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 months.
The 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 this issue.
Mr. 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
1 Mr. Goguen says he filed a post-conviction petition in the state of Connecticut where he was
convicted of Sexual Assault, Second Degree, but he specified in his motion that he is “not seeking a
continuance at this time based on any post-conviction proceedings filed in the Connecticut court.”
Def.’s Mot. at 3 n.3.
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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.
Furthermore, 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
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favor, he is in no danger of serving more time in prison than the lower combined
guideline range of eighty-six months.
Under 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.
By 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.
The 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 conviction
does not affect the validity of the conviction for sentencing purposes.
Under Federal Rule of Criminal Procedure 32(b)(1), a court is required to
impose a sentence on a defendant “without unnecessary delay.” Here, Mr. Goguen
has been incarcerated, as just noted, since November 13, 2015. He pleaded guilty to
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the new criminal charge and admitted the supervised release violations on September
15, 2017. He has been awaiting the imposition of sentence ever since. Apart from
the delay inherent in the need to produce a PSR and an RR, the delay in scheduling
the sentencing hearing has been exclusively due to Mr. Goguen. Given the prevalence
of post-conviction petitions, if sentencing courts delayed sentencing defendants for
new criminal conduct while post-conviction petitions were pending, sentencing
hearings on new criminal conduct would be unnecessarily delayed in violation of Rule
32(b)(1).
Finally, having sentenced Mr. Goguen on more than one occasion and being
aware of his unfortunate criminal history, it is clear to this Court that if Mr. Goguen
is going to avoid committing new crimes, he would benefit from sex offender
treatment. This treatment is not as readily available while an inmate is being held
in a state jail awaiting the imposition of a federal sentence. This is but one reason
why people who commit federal crimes should serve their sentences in federal
prisons.
For all of these reasons, the Court DENIES Defendant’s Motion to Continue
Sentencing (ECF No. 77).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 26th day of April, 2018
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