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United States v. Robert Adams

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Before Torruella, Boudin and Lipez, Circuit Judges.

Robert Adams pled guilty to being a felon-in-possession, in violation of 18 U.S.C. § 922(g)(1), and was sentenced on April 14, 2010, to 110 months imprisonment. A week prior, i.e., on April 7, 2010, the U.S. Sentencing Commission had voted to eliminate the “recency” points assessed by § 4A1.1(e). That proposed amendment (“Amendment 742″) became effective on November 1, 2010. Amendment 742 is not listed as a retroactive amendment in § 1B1.10(c). Had Amendment 742 either been effective as of, or retroactive to, April 14, 2010, Adams’s criminal history category (“CHC”) would have been CHC V, instead of CHC VI, and his guideline sentencing range (“GSR”) would have been 100-120 months, rather than 110-120 months.

Adams concedes that his GSR was properly calculated pursuant to the guidelines as they existed at the time of his April 14, 2010 sentencing and he also concedes that Amendment 742 is not retroactive. Nonetheless, Adams argues that his 110 month sentence is unreasonable and the district court, having been apprised by his counsel at the sentencing hearing of the Commission’s policy change, abused its discretion in sentencing him based on a GSR that was only applicable to him due to the addition of “recency” points. In particular, Adams cites to the district court’s remarks that it gives the guidelines respectful consideration “because they are a product of careful study, based on extensive, empirical evidence.” Adams points out that the Commission decided to eliminate “recency” points precisely because recidivism data demonstrated that there is no empirical justification for the addition of “recency” points.

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