Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 08-2035
UNITED STATES OF AMERICA,
Appellee,
v.
CLINT JOSEPH,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr. U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Lipez, Circuit Judges.
Jonathan R. Saxe, Assistant Federal Public Defender, on brief
for appellant.
Aixa Maldonado-Quiñones, Assistant United States Attorney, and
Thomas P. Colantuono, United States Attorney, on brief for
appellee.
June 16, 2009
Per Curiam. This is the defendant's appeal from the
district court's discretionary denial of his motion for a sentence
reduction under 18 U.S.C. § 3582(c)(2) and the retroactively
amended crack guidelines. As discussed more fully below, because
the district court acted within its discretion in denying a
sentence reduction, primarily because of the defendant's misconduct
while incarcerated, we summarily affirm the district court's order
denying the reduction.
For these purposes, we accept the parties' agreement that
the defendant's eligibility for a sentence reduction is undisputed.
Thus, the only issue before us is whether the district court abused
its discretion in denying a reduction under the circumstances
presented here. See United States v. Caraballo, 552 F.3d 6, 8 (1st
Cir. 2008) (stating applicable standard of appellate review), cert.
denied, 129 S. Ct. 1929 (2009).
In denying a reduction, the district court expressly
"t[ook] into account all of the facts and circumstances of this
case up to the time of the original sentencing, public safety
considerations, the post-sentencing conduct of the defendant, and
the factors set forth in [18 U.S.C. §] 3553(a)." Based on those
appropriate considerations, see USSG § 1B1.10, comment. (n.1(B))
(eff. Mar. 3, 2008); United States v. Borden, 564 F.3d 100, 103 (2d
Cir. 2009), the court concluded "that the defendant's sentence
should not be reduced because the defendant remains at a high risk
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of recidivism, he poses a threat to the safety of the community,
and he has failed to engage in the ordinary rehabilitative efforts
that are expected of a prisoner prior to being released into the
community" and that the 87-month sentence originally imposed
therefore remained sufficient but not greater than necessary.
Those conclusions were based on uncontested evidence that, while
incarcerated, the defendant refused to participate in drug-
treatment, GED, and release-preparation programs recommended by
prison staff, refused to follow through on recommendations to
obtain work, repeatedly disobeyed orders of prison officials
thereby interfering with prison operations and jeopardizing prison
security, and twice threatened prison officials with physical harm.
The court expressly considered the defendant's argument,
reiterated on appeal, that he had already been punished for his
disciplinary infractions. As grounds for rejecting that argument,
the court reasoned that "the Sentencing Commission was undoubtedly
aware of the fact that prisoners who violate disciplinary rules are
subject to disciplinary action when it provided in the application
notes to Section 1B1.10 that the court shall consider public safety
and may consider post-sentencing conduct in determining whether a
reduction is warranted and the extent of such reduction." Id. at
3 (referring to USSG § 1B1.10, comment. (n.1(B)). The court
further explained that "[t]he mere fact that the defendant has been
disciplined for his conduct does not mitigate the seriousness of
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that conduct when viewed from the perspective of public safety or
obviate the need on his part to engage in ordinary rehabilitative
efforts that are indicative of a prisoner's preparation to re-enter
society as a law abiding citizen." Those remarks echoed the
court's warning at the defendant's original sentencing that if the
defendant did not begin to deal with his long-standing drug problem
while incarcerated, "then in the end, it will deal with you." We
see nothing unreasonable or arbitrary in that analysis.
The court also implicitly rejected the defendant's
argument, also reiterated on appeal, that he was not a threat to
public safety because, once he had served his prison term, he would
be detained and subject to deportation. As grounds for rejecting
that argument, the court implicitly adopted the government's
counter-argument that, even if detained and ultimately deported,
the defendant would still pose a threat to immigration authorities
until deported and to the public in his native country after that.
That rationale is not unreasonable either. See generally United
States v. Jiménez-Beltre, 440 F.3d 514 at 519, 520 (1st Cir. 2006)
(en banc) (rejecting a similar argument and stating that "a
[sentencing] court's reasoning can often be inferred by comparing
what was argued by the parties or contained in the pre-sentence
report with what the judge did").
The defendant's primary argument on appeal is that the
district court placed too much emphasis on his post-sentencing
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conduct and too little on various purportedly mitigating factors,
which factors, he argues, rendered his original sentence too high.
However, the weight to be given to various factors is for the
district court to determine and not for an appellate court to
second-guess. United States v. Pulido, 2009 WL 1395838, at *11
(1st Cir. May 20, 2009); United States v. Dixon, 449 F.3d 194, 205
(1st Cir. 2006). And a section 3582(c)(2) proceeding is not the
forum for relitigating the propriety of the defendant's original
sentence. See USSG § 1B1.10(b)(1) (providing that, in such
proceedings, "the court shall substitute only the [relevant
retroactive] amendments . . . for the corresponding guideline
provisions that were applied when the defendant was sentenced and
shall leave all other guideline application decisions unaffected").
That the district court referred to the defendant's
original guideline range as "advisory" even though the defendant
was sentenced before United States v. Booker, 543 U.S. 220 (2005),
when the guidelines were considered mandatory, is of no
consequence. From the record of the section 3582(c)(2)
proceedings, it is obvious that the district court was aware that
it had originally sentenced the defendant before Booker. As
recounted in the defendant's memorandum in support of his request
for a sentence reduction, the defendant had previously sought a
remand for resentencing for that very reason. See United States v.
Joseph, 278 F. App'x 1, 1 (1st Cir. May 23, 2008) (per curiam)
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(unpublished). Moreover, although the guidelines were mandatory
when the defendant was originally sentenced, the district court
expressly considered the section 3553(a) factors, including the
defendant's need for deterrence and rehabilitation, in declining to
depart downward from the otherwise applicable guideline range.
Thus, contrary to the defendant's contention, the district court
considered those factors both at the defendant's original
sentencing and in the section 3553(a) proceedings.
Accordingly, the district court's order denying a
sentence reduction is summarily affirmed. See 1st Cir. R. 27.0(c).
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