West v. United States

United States Court of Appeals
For the First Circuit

No. 09-2132

MATTHEW D. WEST,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

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

[Hon. William G. Young, U.S. District Judge]

Before

Lynch, Chief Judge,
Lipez, Circuit Judge,
and Woodcock,* District Judge.

John P. Slattery, with whom Ronald A. Wysocki Attorney At Law,
Inc. was on brief, for appellant.
Cynthia A. Young, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

January 26, 2011

*
Of the District of Maine, sitting by designation.
 WOODCOCK, District Judge. Defendant-appellant Matthew West

appeals from his conviction of two counts of intent to distribute

and distribution of cocaine and his subsequent sentence as a career

criminal to 180 months incarceration followed by 10 years of

supervised release. West's appeal is based upon claims of

ineffective assistance of counsel, abuse of discretion in

continuing the sentencing hearing, sentencing factor manipulation,

and an unreasonable sentence. We affirm.

I. FACTS

In 2005, the Boston Police Department (BPD) and the Federal

Bureau of Investigation (FBI) investigated suspected criminal

activity by BPD Officer Robert Pulido, including identity theft,

theft of gift cards, the purchase and sale of illegal steroids, and

the co-hosting with West of illegal parties at 24 Factory Street in

Boston. The FBI believed the parties involved an unlicensed strip

club, the unlicensed sale of alcohol, prostitution, and illegal

drug trafficking.

As part of their investigation, the FBI directed cooperating

witness Troy Lozano to befriend West. The two had met in June 2005

when West offered to assist Pulido and Lozano with their identity

theft operation. In November 2005, the FBI asked Lozano to speak

to West about the parties and to ask him about procuring "party

favors" — cocaine — supposedly for Lozano's cousins who planned to

attend one of the parties. West initially thought Lozano was

-2-
requesting prostitutes, but when Lozano stated "the other favors,"

West responded, "Powders?" West then offered to "network" the

request and gave a price of $125 for an eight-ball (3.5 grams) of

cocaine, saying that "some people will ask for 150, but . . . he's

giving them to me for 125 apiece." Lozano later purchased two

eight-balls from West for $250. Several weeks later, again at the

direction of the FBI, Lozano asked to purchase four eight-balls,

which West eventually sold to him for $500.

In September 2006, West was indicted for two counts of

possession with intent to distribute and distribution of cocaine,

a violation of 21 U.S.C. § 841(a). Before trial, the government

notified West that, if West asserted an entrapment defense, the

government would put forth evidence of his prior felony drug

convictions: 1989 convictions in Cambridge, Massachusetts for

possession of a Class B and a Class D substance with intent to

distribute; and 1992 Virginia convictions on two counts of felony

distribution of cocaine.

After a jury trial, during which the entrapment defense was

not raised, West was found guilty on both counts. In its initial

presentence report, the Probation Office classified West as a

career offender by virtue of his 1992 Virginia convictions and a

2001 conviction in Roxbury, Massachusetts for assault and battery.

A sentencing hearing was scheduled for September 24, 2007. On

September 19, however, West moved in the Commonwealth of

-3-
Massachusetts district court to vacate the 2001 conviction for

assault and battery. The motion was heard the morning of September

24 and granted the same day, leaving only the 1992 convictions to

stand at West's federal sentencing, rendering career offender

status inapplicable. With this change, the federal sentencing

guidelines sentence dropped to 12 to 18 months from the 262 to 327

months for a career offender.

Just before the sentencing hearing, the government and the

district court learned about the vacated conviction. Based on late

notice, the government requested a continuance and the trial court

granted its motion, rescheduling the sentencing hearing for October

10. In the interim, the government petitioned the Massachusetts

Supreme Judicial Court to vacate the order vacating the 2001

conviction. Before the Supreme Judicial Court responded, the state

district court judge, sua sponte, vacated her order and restored

West's 2001 conviction.

At his October 10 sentencing hearing, West and the government

agreed that the sentencing guidelines classified West — his 2001

conviction restored — as a career offender, and the guideline

sentence returned to 262 to 327 months imprisonment. The district

court sentenced West to 180 months imprisonment and 10 years

supervised release. In so doing, the district judge observed that,

although selling drugs was not West's primary business, he was a

career offender. In a subsequent sentencing memorandum, the trial

-4-
judge characterized West as a "small-time hoodlum," but noted his

involvement in "after-hours parties with drugs," which he described

as a "veritable beehive of criminal activity," and "rife with

prostitution."

II. DISCUSSION

West raises four issues on appeal: (1) ineffective assistance

of counsel, (2) continuation of West's sentencing hearing, (3)

sentencing factor manipulation, and (4) imposition of an

unreasonable sentence.

A. Standard of Review

After his conviction and sentencing, West directed his trial

counsel to file an appeal under 18 U.S.C. § 3742. Despite West's

repeated urgings, West's counsel missed the appeal deadline

provided by Federal Rule of Appellate Procedure 4(b). West later

moved pro se for leave to file an untimely appeal. After initially

denying the motion without prejudice, the trial court later granted

West's motion upon learning about West's counsel's failure, and

West filed a timely appeal within the newly allowed appeal period.

We dismissed West's direct appeal as untimely and directed West to

his remedies under 28 U.S.C. § 2255. West filed the § 2255

petition with the district court, which denied his motion. West

appeals that denial.

The rather unusual travel of this case could present a

procedural tangle, but at oral argument, the government sensibly

-5-
waived any objection to our consideration of all of West's issues

as though on direct appeal, regardless of how they actually arrived

here. This seems to us appropriate, especially since parsing

through varying standards of review and differentiating between

waived and preserved issues would make no difference; the result by

any reckoning is the same.

B. Ineffective Assistance of Counsel

West's claim of ineffective assistance of counsel is based on

his trial lawyer's refusal to accede to his demand to raise the

entrapment defense during his trial and his counsel's failure to

timely file an appeal of his conviction and sentence. Claimed

violations of the Sixth Amendment right to effective representation

of counsel require a showing that (1) counsel's performance fell

below an objective standard of reasonableness, and (2) the

deficient performance resulted in prejudice to the applicant.

Strickland v. Washington, 466 U.S. 668, 687 (1984); Peralta v.

United States, 597 F.3d 74, 79 (1st Cir. 2010).

As we recently observed, in Strickland, the Supreme Court

directed the courts to indulge a "strong presumption that counsel's

conduct falls within the wide range of reasonable professional

assistance, and [the defendant] must overcome the presumption that

the challenged action might be considered sound strategy." Tevlin

v. Spencer, 621 F.3d 59, 66 (1st Cir. 2010) (quoting Strickland,

466 U.S. at 689) (internal punctuation and citation omitted). A

-6-
lawyer's representation is deficient under Strickland "only where,

given the facts known at the time, counsel's choice was so patently

unreasonable that no competent attorney would have made it." Id.

(quoting Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006)). West

cites two instances of prejudicial ineffective assistance of

counsel: first, that his trial counsel failed or refused to present

an entrapment defense; and second, that his trial counsel failed to

file a timely appeal of his conviction and sentence.

Reviewing West's counsel's performance in light of Strickland

and its progeny, this court cannot conclude that his decision not

to pursue an entrapment defense was patently unreasonable. A

successful entrapment defense requires proof by the defendant of

two elements: "(1) government inducement of the accused to engage

in criminal conduct, and (2) the accused's lack of predisposition

to engage in such conduct." United States v. Rodriguez, 858 F.2d

809, 812 (1st Cir. 1988). On this second prong, had West's counsel

offered an entrapment defense, the government would likely have

responded by seeking to demonstrate West's predisposition to sell

drugs by introducing his 1989 convictions for possession of cocaine

and of marijuana with intent to distribute, and his 1992 conviction

on two counts of cocaine distribution.

The introduction of such damaging evidence would have undercut

West's entrapment defense. West's prior convictions related not

only to selling illegal drugs generally but also to the specific

-7-
type of drug in this case — cocaine. West's own actions further

doomed an entrapment defense; when asked by Lozano for "party

favors," West quickly surmised that he meant cocaine, and he

displayed a ready knowledge of current cocaine pricing, stating

"some people will ask for 150, but . . . he's giving them to me for

125 apiece." The present-tense allusion to West's drug supplier

suggested an ongoing relationship and provided an additional

challenge to West's claim that his drug procurement was a

government-induced, one-time event. This evidence, viewed in its

totality, supports West's counsel's repeatedly stated belief in the

ineffectiveness of an entrapment defense.

Defense counsel, faced with difficult strategic choices,

struck a middle path: he avoided an entrapment defense that would

likely have resulted in admission of West's prior convictions, but

he put the surrounding circumstances before the jury by

highlighting Lozano's cooperation with the FBI. We cannot say that

this was an unreasonable litigation strategy or so ill-considered

as to overcome the strong presumption of effective assistance.

That his strategy failed demonstrates the strength of the

government's case, not the weakness of counsel's performance.

As regards West's counsel's failure to file a timely direct

appeal, because we are now considering West's arguments as though

brought on direct appeal, West has suffered no prejudice as a

result of his counsel's failure. See generally Strickland, 466

-8-
U.S. at 687 (stating that a successful ineffective assistance of

counsel claim requires a showing of prejudice).

C. Continuation of Sentencing Hearing

This circuit grants district courts "wide discretion to grant

or deny a request for continuance." United States v. Fink, 499

F.3d 81, 89 (1st Cir. 2007); United States v. Saccoccia, 58 F.3d

754, 770 (1st Cir. 1995). The "great deference" shown to district

courts is disturbed "only for a manifest abuse of discretion" where

the district court "indulged a serious error of law or suffered a

meaningful lapse of judgment, resulting in substantial prejudice to

the movant." Saccoccia, 58 F.3d at 770. Our review of a grant or

denial of a continuance is case-specific. United States v. Moore,

362 F.3d 129, 135 (1st Cir. 2004). We have previously held that,

when considering an appeal from a denial of a continuance, we

assess first, "the reasons contemporaneously presented in support

of the request for the continuance," and give secondary

consideration to:

the amount of time needed for effective
preparation, the amount of time actually available
for preparation, the amount of time previously
available for preparation and how assiduously the
movant used that time, the extent to which the
movant has contributed to his perceived
predicament, the complexity of the case, the
availability of assistance from other sources, the
probable utility of a continuance, the extent of
inconvenience to others (such as the court, the
witnesses, and the opposing party) should a
continuance ensue, and the likelihood of injustice

-9-
 or unfair prejudice attributable to the denial of a
continuance.

Saccoccia, 58 F.3d at 770; accord United States v. Rodriguez-Leon,

402 F.3d 17, 27 (1st Cir. 2005); Moore, 362 F.3d at 135; United

States v. Brand, 80 F.3d 560, 564 (1st Cir. 1996). The same

considerations are relevant here, where we review the grant of a

continuance rather than its denial.

Our analysis is guided by our earlier ruling in United States

v. Fink, where we overturned a district court's denial of a

sentencing continuance that would have allowed the government time

to review whether a previous conviction marked the defendant as a

career offender. 499 F.3d at 83. In Fink, the government

requested additional time to review the sentencing implications of

a vacated prior conviction. Id. at 88-89. There, as here, the

last-minute vacatur by a state court resulted in significant

confusion as to the appropriate federal sentence, and prompted the

trial court to grant an eleven-day continuance. Id. However, in

Fink, the district court denied a subsequent request to continue.

Id. at 89. On appeal, we found the government's request for a

second continuance justifiable given its surprise at the vacatur,

and we ruled that the trial court's interest in an expeditious

sentencing did not outweigh the government's interest in a sentence

based on an accurate criminal history. Id. Concluding that the

-10-
court should have granted the government a continuance, we reversed

and remanded the case.

This case echoes Fink. West's sentencing hearing was

initially scheduled for September 24, 2007. It was delayed sixteen

days until October 10 because the state court granted West's motion

to vacate. The need for the continuance was largely of West's own

making; West sought to vacate his 2001 conviction just five days

before the sentencing hearing, and his motion was granted the

morning of the sentencing, giving the government no more than

several hours notice. In light of the timing of events, the

government's request for additional time to review the vacatur

strikes us as entirely appropriate.

The reasonableness of the request is further buttressed by the

government's clearly articulated reasons, listing precisely what

steps it intended to take if the continuance were granted:

So, what I would like to do is have an opportunity
to inquire of the Commonwealth, one, did you know
about this, two, is this the proper basis for
vacating a prior conviction, and three, are you
intending to go forward with a new trial on Mr.
West in the state court . . . .

See id. ("We find the government's request for time . . .

justifiable . . . especially since it informed the district court

precisely what steps it would take if the continuance were granted,

i.e., that it would consult directly with the Massachusetts state

court for clarification of the issue."). Faced with a last-minute

-11-
vacatur and a request for a brief continuance with a clearly

defined purpose, the district judge's grant was entirely

justifiable and well within his discretion. In granting a

continuance, the district court did what we thought the district

court should have done in Fink. It committed no error.

We are also mindful of Federal Rule of Criminal Procedure

32(b)(1), which provides that a sentence be imposed "without

unnecessary delay." See, e.g., United States v. Espinola, 242 Fed.

Appx. 709, 711 (1st Cir. 2007) ("Requests for continuances of

sentencing are disfavored given the district court's obligation to

'impose sentence without unnecessary delay.'"), vacated on other

grounds, 552 U.S. 1240 (2008). Nonetheless, we are persuaded that

the circumstances of this case fall squarely within the ambit of

Rule 32(b)(2), which allows for a change to any of Rule 32's time

limits "for good cause." See Brackett v. United States, 270 F.3d

60, 70 (1st Cir. 2001) (citing Rule 32's "good cause" provision in

explaining that a federal judge could continue a sentencing hearing

"when there are pending state proceedings to vacate state

convictions instituted before the federal sentence is imposed"),

abrogated on other grounds by Johnson v. United States, 544 U.S.

294 (2005); cf. United States v. Casas, 425 F.3d 23, 36 (1st Cir.

2005) (holding that a thirty-one month delay between conviction and

sentencing was "not without good reason" and so did not infringe

upon the defendants' Sixth Amendment rights to a speedy trial).

-12-
 Furthermore, even assuming arguendo that the district judge

abused his discretion in granting the continuance, we perceive no

prejudice as a result of the continuance. Although West had been

in custody for over a year, discounting career offender status,

West was facing a guidelines sentence of twelve to eighteen months.

A two- or three-week continuance would not likely have resulted in

any additional time in prison. That West ultimately faced a

guideline sentence of at least 262 months was not the result of the

continuance, but of the actions of the Commonwealth of

Massachusetts judiciary and the calculation of an otherwise

uncontested sentencing guideline range. The government's stated

purpose for the continuance was to sort out irregularities with the

vacatur, including its validity, and the district court granted the

continuance on this basis. Neither we nor the trial court find a

valid distinction between West's attempt to vacate his earlier

conviction and the government's attempt to vacate the vacatur.

D. Sentencing Factor Manipulation

Sentencing factor manipulation occurs when "the government

'improperly enlarges the scope or scale of a crime' to secure a

longer sentence than would otherwise obtain." United States v.

DePierre, 599 F.3d 25, 28-29 (1st Cir. 2010) (quoting United States

v. Vasco, 564 F.3d 12, 24 (1st Cir. 2009)) (internal brackets

omitted). "[I]mpropriety is the main focus." Id. at 29. A

finding of manipulation allows imposition of a reduced sentence as

-13-
an equitable remedy to the government's overreaching. Id.; United

States v. Sanchez-Berrios, 424 F.3d 65, 78 (1st Cir. 2005); United

States v. Fontes, 415 F.3d 174, 180 (1st Cir. 2005).

The defendant bears the burden to prove sentencing factor

manipulation by a preponderance of the evidence. Fontes, 415 F.3d

at 180. "[T]he threshold is very high" and requires a showing of

"extraordinary misconduct." Id.; United States v. Richardson, 515

F.3d 74, 86 n.8 (1st Cir. 2008) (explaining that sentencing factor

manipulation exists "only in an 'extreme and unusual case'");

United States v. Fanfan, 468 F.3d 7, 16 (1st Cir. 2006). For

example, the threshold would be met with a showing that government

agents "overpowered the free will of the defendant and caused him

to commit a more serious offense than he was predisposed to

commit." United States v. Villafane-Jimenez, 410 F.3d 74, 87 (1st

Cir. 2005). The focus of the inquiry is "primarily on the behavior

and motives of the government," but includes the secondary

consideration of the defendant's predisposition to commit the

crimes charged. United States v. Jaca-Nazario, 521 F.3d 50, 58

(1st Cir. 2008); accord Fanfan, 468 F.3d at 16 ("The question is

whether the government's conduct was 'outrageous' or 'intolerable'

and rose to the level of 'extraordinary misconduct.'" (quoting

United States v. Montoya, 62 F.3d 1, 4 (1st Cir. 1995))).

We addressed the proper standard of review in Jaca-Nazario:

-14-
 "The district court's fact findings on this issue,
as on other fact questions, are subject to the clearly
erroneous standard." [Montoya, 62 F.3d at 4]. Because
this is such a fact-bound inquiry, we extend deference
even to the district court's conclusion about whether or
not the government has behaved outrageously or
intolerably. Id. (stating that such a conclusion is "not
lightly to be disregarded").

521 F.3d at 57. Applying this standard, we cannot say that the

government's actions in this case were intolerable or indicative of

extraordinary misconduct. Rather, the mere suggestion of the

procurement of illegal drugs set West on his course. Although it

was the government's informant that broached the subject of drugs

in the abstract (noting that some of his friends would be looking

for "party favors"), the informant had not yet asked West whether

he could provide the drugs before West offered, of his own

initiative, to "network" the drug procurement. The facts do not

reveal any overreaching by the government. See Fanfan, 468 F.3d at

16. At most, the government afforded West the opportunity to

commit the crime. See Fontes, 415 F.3d at 180 (explaining that

"there is an element of manipulation in any sting operation" and

for that reason, sentencing factor manipulation is reserved only

for "extreme and unusual" cases). West's ready response to the

informant's inquiry confirms that his actions were not the forced

result of intolerable pressure. See id. at 182 (noting that "some

assessment of a defendant's response to an invitation to crime may

-15-
be warranted" in considering a claim of sentencing factor

manipulation).

While, as noted by the district judge, West's primary business

was not the sale of drugs, his conduct showed his easy access to

them and his willingness to deal in them. Further, West's intimate

familiarity with current drug prices belies any claims of

enticement or lack of predisposition. See United States v.

Campusano, 556 F.3d 36, 40 (1st Cir. 2009) (rejecting a claim of

sentencing factor manipulation where the defendants had not been

enticed to "commit an offense to which they were not predisposed").

These facts, viewed in their totality, show West to have been an

"unwary criminal who readily availed himself of the opportunity"

afforded him by Lozano, rather than an "unwary innocent" pushed

into criminality by the government. See Mathews v. United States,

485 U.S. 58, 63 (1988).

Moreover, the informant's request was within the scope of the

BPD and FBI's investigation into the criminal activity conducted at

the unlicensed parties hosted by Officer Pulido, including

suspected drug use. See Jaca-Nazario, 521 F.3d at 58

("[S]entencing entrapment does not occur unless law enforcement

agents venture outside the scope of legitimate investigation and

engage in extraordinary misconduct that improperly enlarges the

scope or scale of the crime." (internal quotation marks omitted)).

To the extent there is any disconnect between the specific

-16-
activities of which Officer Pulido was suspected and Lozano's

request for drugs, it falls far short of the "extraordinary

misconduct" necessary to sustain an allegation of sentencing factor

manipulation. See Fontes, 415 F.3d at 181 (noting that this court

has upheld a district court's denial of sentencing factor

manipulation even where "'the agents' motives were mixed and not of

crystalline purity,' where the defendant was otherwise

'legitimately targeted and the sting objectively reasonable in

extent'" (quoting United States v. Egemonye, 62 F.3d 425, 428 (1st

Cir. 1995))).

That the district court used the terminology of "entrapment"

rather than "sentencing entrapment" or "sentencing factor

manipulation" does not help West's cause. See United States v. De

La Paz-Rentas, 613 F.3d 18, 29 (1st Cir. 2010). A defendant's

predisposition is relevant both to a defense of entrapment at trial

and a claim of sentencing factor manipulation. See DePierre, 599

F.3d at 29. The district judge's entrapment reference, therefore,

is best regarded as legal shorthand for West's predisposition. In

other words, West's counsel's inability to rebut the government's

evidence of predisposition similarly doomed his assertion of

sentencing factor manipulation. See Jaca-Nazario, 521 F.3d at 59

n.8 (noting that in a sentencing manipulation analysis "a finding

that the defendant was predisposed to commit the crimes charged may

overcome even a finding of improper motive" by the government); see

-17-
also, Mathews, 485 U.S. at 63 (explaining that predisposition is

"the principal element in the defense of entrapment").

We find no error by the district judge — either in his use of

language or in his rejection of the sentencing factor manipulation

argument.

E. Reasonableness of West's Sentence

West argues that the district court's sentence is unreasonable

in light of 18 U.S.C. § 3553(a)(2), specifically, that the sentence

was greater than necessary: "(A) to reflect the seriousness of the

offense, to promote respect for the law, and to provide just

punishment for the offense;(B) to afford adequate deterrence to

criminal conduct;(C) to protect the public from further crimes of

the defendant; and (D) to provide the defendant with needed

educational or vocational training, medical care, or other

correctional treatment in the most effective manner." The

reasonableness of a sentence is reviewed "under a deferential

abuse-of-discretion standard." United States v. Bunchan, 626 F.3d

29, 35 (1st Cir. 2010) (quoting Gall v. United States, 552 U.S. 38,

51 (2007)). "Our review of the district court's sentence for

reasonableness is a two-step process. We first review the sentence

for procedural errors, then 'turn to the substantive reasonableness

of the sentence actually imposed and review the sentence for abuse

of discretion.'" United States v. Rivera-Gonzalez, 626 F.3d 639,

-18-
646 (1st Cir. 2010) (quoting United States v. Politano, 522 F.3d

69, 73 (1st Cir. 2008)).

Turning to the former, the court considers whether the

district judge made any procedural errors:

such as failing to calculate (or improperly
calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the §
3553(a) factors, selecting a sentence based on
erroneous facts, or failing to adequately explain
the chosen sentence — including an explanation for
any deviation from the Guidelines range.

United States v. Gentles, 619 F.3d 75, 88 (1st Cir. 2010) (quoting

Politano, 522 F.3d at 72). West's procedural challenge is based on

the district judge's reliance upon facts allegedly unsupported by

the record: first, that West ran a club that was "rife with

prostitution"; and second, that West "ran after hours parties with

drugs" and that the parties were a "veritable beehive of criminal

activity."

After careful review, we conclude that the district judge's

characterization of the parties, while descriptive, was firmly

based upon record evidence. The record reflects that the parties

involved the unlicensed sale of liquor and presence of prostitutes.

West's own procurement of "party favors" to be used at the club

confirms a general lawlessness surrounding the gatherings.

Moreover, West's indifferent reaction to the request for party

favors suggests that such lawlessness was commonplace and

unremarkable. We are wary of second-guessing the first-hand

-19-
impressions of the trial judge, who had the benefit of directly

observing the witnesses and evidence at trial. The district

judge's assessment of these facts, including his description of the

parties, was appropriate.

Turning to the substantive reasonableness of the sentence, we

note that district courts are afforded "wide discretion" in

reaching a sentencing decision. Rivera-Gonzalez, 626 F.3d at 647.

"[T]he linchpin of a reasonable sentence is a plausible sentencing

rationale and a defensible result." Id. (quoting United States v.

Martin, 520 F.3d 87, 96 (1st Cir. 2008)). "Where the district

court has substantially complied with this protocol and has offered

a plausible explication of its ultimate sentencing decision, we are

quite respectful of that decision." Gentles, 619 F.3d at 89

(quoting United States v. Dixon, 449 F.3d 194, 204 (1st Cir.

2006)). Having found no procedural error, we review the

substantive reasonableness of West's sentence "for abuse of

discretion in light of all circumstances." United States v. Rosa-

Carino, 615 F.3d 75, 82 (1st Cir. 2010).

West argues that his sentencing guideline classification as a

"career offender" is overstated given the "small quantities of

cocaine," his status as a "small-time hoodlum" whose primary

business was not drug sales, and the thirteen-year gap between his

Virginia drug conviction and the instant offense. The district

court was correct in taking into account West's two prior

-20-
convictions. See United States v. Brown, 621 F.3d 48, 54 n.5 (1st

Cir. 2010) ("Prior convictions may be treated as sentencing factors

even when they 'trigger[ ] an increase in the maximum permissive

sentence' to which the defendant is exposed." (quoting Almendarez-

Torres v. United States, 523 U.S. 224, 244 (1998))).

Here, the district judge did precisely what West contends he

should have done: he took into account the guideline range, the

nature of the crime, and West's criminal history, and he imposed a

markedly reduced sentence. Rather than applying the guideline

range mechanically, the judge duly considered both West's

relatively low-level criminal status and the comparatively small

drug quantities for which West was convicted, and he handed down a

more lenient sentence than suggested by the guidelines. To the

extent the district judge concluded that West's criminal history

generated a guideline range too harsh for West in light of the

§ 3553(a)(2) factors, the judge reduced his sentence from a

guideline minimum of 262 months to 180 months.

In short, we find that the imposed sentence was reasonable.

III. CONCLUSION

We affirm both West's conviction and his sentence.

So ordered.

-21-