Not for Publication in West's Federal Reporter

          United States Court of Appeals
                        For the First Circuit

No. 07-2687

                      UNITED STATES OF AMERICA,

                                 Appellee,

                                      v.

                             JOSÉ A. RIVERA,

                         Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Nancy Gertner, U.S. District Judge]


                                   Before

                     Torruella, Selya, and Lipez,
                           Circuit Judges.



     Jane Elizabeth Lee on brief for appellant.
     Jennifer H. Zacks, Assistant U.S. Attorney, and Michael J.
Sullivan, United States Attorney, on motion for summary
disposition.


                            February 26, 2009
            Per Curiam.     This is defendant's direct appeal from his

sentence.    The sole issue that he raises is whether the district

court underestimated the scope of its discretion--later clarified

in Kimbrough v. United States, 

(2007), and United

States v. Boardman, 

(1st Cir. 2008)--to "var[y] from

the Guidelines based solely on the judge's view that the Guidelines

range 'fails properly to reflect § 3553(a) considerations' even in

a mine-run case," 

(quoting Rita v.

United States, 

, 2465 (2007)), and, in particular,

to "deviate from the guidelines . . . on the basis of categorical

policy disagreements" with the career offender guideline, 

.      If so, then a remand for resentencing may be

warranted.    Moore v. United States, 

, 5 (2008) (per

curiam); 

.         Of course, the district court

is free to clarify this point on remand.

            A threshold question is whether defendant adequately

preserved    this   issue   below,   which   determines   the   applicable

standard of appellate review.        We need not decide that question

because the more demanding plain-error standard is satisfied here.

The record shows that the court felt powerless to disregard the

career offender guideline on policy grounds in a "mine-run case"

and also shows a "reasonable probability" that if the court had

understood the full scope of its discretion, it would have imposed

a lesser sentence.     United States v. Matos, 

, 122-23


                                     -2-
(1st Cir.) (applying the "reasonable probability" standard to

unpreserved Kimbrough errors), cert. denied, 

(U.S.

Dec. 8, 2008).

            Even after departing downward slightly on the ground that

counting    defendant's     juvenile     offenses   overrepresented   the

seriousness of his criminal history, the court still felt that

defendant's sentence was "way too long" and that "the Sentencing

Commission picked these numbers out of the air, and . . . had no

basis for [them]."    Yet, because it could not further distinguish

defendant from other career offenders, the court believed that it

could not vary below the already reduced guideline range without

creating an unwarranted sentencing disparity between defendant's

sentence and those of other career offenders sentenced by other

judges.

            That view, though a correct statement of the law in this

circuit at the time, see United States v. Caraballo, 

,

27-28 (1st Cir. 2006), was rendered plainly erroneous by Kimbrough.

In particular, the Kimbrough Court expressly recognized that its

holding    might   create   sentencing    disparity   between   similarly

situated defendants, depending on individual judges' differing

policy views, but characterized any such disparity as "a necessary

cost of the remedy . . . adopted [in United States v. Booker, 

(2005)]."    

.




                                   -3-
           The district court's repeated characterization of the

sentence imposed as "too long" further indicates that, had it

understood the full scope of its discretion, it "might well" have

imposed a lesser sentence.        United States v. Heldeman, 

, 224 (1st Cir. 2005).   We therefore remand the case to give the

district court an opportunity to resentence if and to whatever

extent it deems appropriate in light of "the additional latitude

furnished by Kimbrough."    

.

           The matter is remanded to the district court for further

proceedings   consistent   with   this   decision.   See   1st   Cir.   R.

27.0(c).




                                   -4-