Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 09-1454
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ L. DÍAZ-FONTÁNEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Boudin, Stahl and Lipez,
Circuit Judges.
Charles F. Willson and Nevins & Nevins LLP on brief for
appellant.
Nelson Pérez-Sosa, Assistant U.S. Attorney, Julia M.
Meconiates, Assistant U.S. Attorney, and Rosa Emilia Rodriguez-
Velez, United States Attorney, on brief for appellee.
December 18, 2009
Per Curiam. This is the defendant's appeal from his
resentencing on remand from this court. Because the district
court followed this court's remand instructions and did not
otherwise err or abuse its discretion in resentencing the
defendant, we affirm.
On the defendant's previous appeal, we held that,
under the guidelines, the defendant might be entitled to credit
for time spent in state custody. United States v. Díaz-
Fontánez, No. 06-2061, 317 F. App'x 9, 10 (1st Cir. Aug. 8,
2008) (per curiam). In so holding, we relied on application
note 2 to USSG § 5G13, which directs the sentencing court to
"adjust for any term of imprisonment already served as a result
of the conduct taken into account in determining the sentence
for the instant offense." Id. However, because that
adjustment applies only to time not credited by the Bureau of
Prisons, id. at 10 (citing USSG § 5G1.3(b) as amended by
amendment 535 (effective Nov. 1, 1995)), a remand was required
to determine how much time the defendant had already served for
his related state firearms offense and how much of that time
would be credited to the defendant by the Bureau of Prisons
("BOP"). Id.
On remand, it was determined that the defendant had
already served his entire state sentence by the time his
federal sentence had been imposed and that the BOP would not
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credit any of that time, 69 months and 19 days, against his
federal sentence. Although the state sentence had thus been
fully discharged, and section 5G1.3 applies primarily to
undischarged state sentences, the guidelines nevertheless
permit the downward departure granted by the district court to
account for that time, see USSG § 5G1.3, comment. (n.4), as the
district court itself recognized.
However, there is no basis in section 5G1.3 for
crediting the time spent in custody after the defendant's state
firearms sentence was fully discharged but before he was
sentenced for the instant federal offense. The parties
disagree on whether the defendant was in state or federal
custody during that time. However, either way, that time would
not be creditable under section 5G1.3(b) because, once the
defendant completed serving his state firearms sentence, he was
not in custody for an offense "that was the basis for an
increase in the offense level for the instant offense," an
essential prerequisite for an adjustment under section
5G1.3(b). Regardless whether or not the district court had
discretion to vary downward to account for that time, it was
not required to do so in calculating the defendant's guideline
range. And we see no abuse of discretion in rejecting the
defendant's plea for a further credit on that basis.
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The only other purported error pressed on appeal is
the district court's failure to vary downward based on the
guidelines' relatively harsh treatment of crack--as compared to
powder--cocaine offenses. The short answer to that argument is
that while the district court may vary downward on that basis,
"'nothing . . . requires the district court to take [the
crack/powder sentencing] disparity into account in every crack
case.'" United States v. Gibbons, 553 F.3d 40, 46 (1st Cir.
2009) (quoting Díaz-Fontánez, 317 F. App'x at 11). Here, the
district court considered that and the other purportedly
mitigating factors identified by the defendant but nevertheless
concluded that the within-guidelines sentence imposed was no
greater than necessary to serve the purposes of sentencing set
forth in 18 U.S.C. § 3553(a). Given the violent nature of the
defendant's criminal record, which was not fully accounted for
in his criminal history score, and the fact that the court did
reduce the defendant's sentence by more than ten years from the
sentence previously imposed, we see no abuse of discretion in
declining to reduce it even further. "We will not disturb a
well-reasoned decision to give greater weight to particular
sentencing factors over others." Gibbons, 553 F.3d at 47.
Consequently, the district court's judgment is
affirmed. See 1st Cir. R. 27.0(c).
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