United States of America v. TIMOTHY H. BRADLEY and KATHLEEN MARY O'DELL

Of the District of Massachusetts, sitting by designation. *
United States Court of Appeals
For the First Circuit
No. 04-1146
No. 04-1147
UNITED STATES OF AMERICA,
Appellee,
v.
TIMOTHY H. BRADLEY and KATHLEEN MARY O'DELL,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Saris, District Judge. *
William E. Christie with whom Shaheen & Gordon, P.A. was on
consolidated brief for appellants.
Bradley J. Schlozman, Deputy Assistant Attorney General, with
whom Thomas P. Colantuono, United States Attorney, Jessica Dunsay
Silver and Karl N. Gellert, Department of Justice, Civil Rights
Division, Appellate Section, were on brief for appellee.
October 14, 2005

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Per Curiam. In this case the defendants were convicted
of forced labor and related crimes based on their abusive treatment
of several Jamaican seasonal workers whom they recruited in Jamaica
and then kept in the United States by threats and other means. The
facts are recounted in our decision upholding the defendants'
convictions and sentences. United States v. Bradley, 390 F.3d 145
(1st Cir. 2004). Each defendant was sentenced to a prison term of
70 months--the minimum provided for under the governing provisions
of the Sentencing Guidelines.
After our decision and within the period for seeking
certiorari, the Supreme Court rendered the Booker decision, United
States v. Booker, --- U.S. ---, 125 S. Ct. 738 (2005), and
thereafter remanded this case to us for reconsideration in light of
Booker. The defendants did not preserve an attack on the
guidelines in the district court. Thus, under our precedents, the
question whether we should now remand for resentencing under the
post-Booker advisory guideline regime depends on whether the
defendants can establish a likelihood that in the event of a
remand, their new sentences might well be less than the sentences
imposed on them under the mandatory guidelines. See, e.g., United
States v. Heldeman, 402 F.3d 220, 224 (1st Cir. 2005).
The fact that each defendant was given the minimum
guideline sentence helps their claim--a sentence above the minimum
being a good indicator that the trial judge did not feel

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constrained--but is alone insufficient to establish the likelihood
of a different sentence. United States v. Kornegay, 410 F.3d 89,
100 (1st Cir. 2005). The district judge in this case made no
comments at sentencing to cast any light on whether he would have
been inclined to give a lower sentence absent the then-mandatory
guidelines or whether he thought the guideline sentence was just
right. Compare United States v. Cacho-Bonilla, 404 F.3d 84, 95
(1st Cir. 2005). Nor is this a case in which the circumstances of
the offenses or defendants strongly suggest one way or the other
that a judge constructing a "reasonable" sentence under the new
advisory regime would stand by the 70-month sentence.
The core of the defendants' argument for a remand is that
a number of mitigating factors are arguably present, such as prior
good works by both defendants, lesser wrongdoing by O'Dell,
community support for both, indications of no future danger, and--
in both cases but especially O'Dell's--childhood circumstances that
evoke sympathy. The defendants also make other kinds of arguments
for a remand--for example, suggesting weaknesses in the
government's proof of the crimes--but the government's very able
brief in opposition to the remand thoroughly disposes of such
claims as unfounded, irrelevant, or both.
The question, therefore, is whether there is a reasonable
likelihood that the mitigating circumstances might well induce the
district court, if unshackeled by mandatory guidelines, to give a

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somewhat lower sentence to either or both of the defendants. The
government stresses, as we have ourselves in other cases, that
many, and perhaps all, of the mitigating circumstances were
presented to the district court, without eliciting any comment from
the court. See, e.g., United States v. Figuereo, 404 F.3d 537,
541-42 (1st Cir. 2005). This may often be a persuasive argument
against a remand but it cannot be so in every set of facts. Under
mandatory guidelines, a district judge could well conclude that a
group of discouraged factors did not quite justify a departure from
the guidelines under the prevailing "heartland" analysis but might
justify a somewhat shorter sentence under a reasonableness
standard.
This case is a very close one but, on balance, we think
there is enough of a possibility of a different result that we have
concluded that a remand is appropriate. Cases like this one turn
almost entirely on their particular facts and there is no reason to
describe in detail the circumstances on which the defendants rely,
especially as we do not know some of the details and do not have a
developed factual rebuttal such as the government might seek to
offer. It is enough that we think that the district judge in the
circumstances of this case deserves an opportunity to consider the
matter himself.
The defendants' sentences are vacated and the matter is
remanded to the district court for further sentencing.

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It is so ordered.

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