USCA1 Opinion
[Not for Publication]
United States Court of Appeals
For the First Circuit
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No. 97-1079
UNITED STATES,
Appellee,
v.
RODERICK L. SENIOR,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge] ___________________
____________________
Before
Stahl, Circuit Judge, _____________
Cyr, Senior Circuit Judge, ____________________
and Lynch, Circuit Judge. _____________
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Richard H. Gens for appellant. _______________
Roderick L. Senior on brief pro se. __________________
Kimberly S. Budd, Assistant United States Attorney, with whom _________________
Donald K. Stern, United States Attorney, was on brief for appellee. _______________
____________________
December 30, 1997
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Per Curiam. Defendant-appellant Roderick L. Senior Per Curiam __________
pled guilty to being a deported alien found in the United
States without the consent of the Attorney General, 8 U.S.C.
1326, and was sentenced to 51 months' imprisonment, the
guidelines minimum. He appeals his sentence, arguing that
(1) he is entitled to a sentence reduction, pursuant to
U.S.S.G. 5G1.3(b), for time served on a prior conviction
taken into account in determining his guidelines sentencing
range; (2) he is entitled to a sentence reduction because the
district court improperly applied U.S.S.G. 4A1.1(d) in
calculating his criminal history category; and (3) he is
entitled to a downward departure for agreeing to immediate
deportation.1 We reject these arguments and affirm his
sentence.
I. I. __
Senior, a native and citizen of Jamaica, entered
the United States at Miami in 1983 using a counterfeit birth
certificate. In 1989, he pled guilty in Suffolk
(Massachusetts) Superior Court to possession with intent to
distribute cocaine, and received a five-to-seven-year
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1. Senior also argues that the district court erroneously
precluded his attack, at his sentencing hearing, on a prior
state conviction. At oral argument, however, Senior conceded
that Custis v. United States, 511 U.S. 485 (1994) forecloses ______ _____________
this argument. See United States v. Cordero, 42 F.3d 697, ___ ______________ _______
701 (1st Cir. 1994)(applying Custis to guidelines sentencing ______
hearings).
Senior also raises, in his pro se supplemental brief, a ___ __
concern that his presentence report misstated a prior
offense, and that this error may adversely affect his
treatment while incarcerated. We resolved this concern at
oral argument by eliciting the government's pledge to attach
a letter of correction to Senior's Bureau of Prisons file.
The government has followed through on its promise.
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sentence. In December 1991, Massachusetts paroled Senior to
the Immigration and Naturalization Service (INS), which
identified him as a deportable aggravated felon and, the
following month, deported him to Jamaica. Deportation did
not change his parole status, which was scheduled to continue
until November 28, 1994.
In April 1992, Senior reentered the United States
without the consent of the Attorney General. In October
1992, he pled guilty to menacing in New York state court, and
he subsequently failed to appear for sentencing. This
episode defaulted Senior's Massachusetts parole status.
Consequently, in December 1992, the Massachusetts Parole
Board issued a warrant for his arrest. Nearly three years
later, in September 1995, he was found and arrested in New
York, returned to Massachusetts on his parole warrant, and
incarcerated in Massachusetts' MCI Gardener prison because of
the parole violation.
On March 15, 1996, Massachusetts again released
Senior to the INS. He remained in INS custody until April
1996, when the indictment in this case was returned. It
charged Senior with being a deported alien found in the
United States -- at MCI Gardener on March 15, 1996 -- without
the consent of the Attorney General. Following return of the
indictment, the district court ordered Senior detained. His
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detention continued until his sentencing, which took place in
November 1996.
II. II. ___
A. Sentence Reduction Under U.S.S.G. 5G1.32 _____________________________________________
Senior contends that, pursuant to U.S.S.G.
5G1.3(b), the district court should have reduced his sentence
to account for time served in Massachusetts prison beginning
September 28, 1995. He observes that application note two of
U.S.S.G. 5G1.3(b) requires courts to reduce a sentence by
the period of imprisonment already served as a result of
conduct taken into account in the sentence. He further
asserts that his case fits within this proviso because his
time served since September 28, 1995 resulted from a state
conviction that the district court used to enhance his base
offense level from 8 to 24.
At the outset, Senior faces an uphill climb because
this argument is raised for the first time on appeal. We
therefore review only for plain error. See United States v. ___ _____________
Taylor, 54 F.3d 967, 972 (1st Cir. 1995). We may find plain ______
error only if the error "skewed the fundamental fairness or
basic integrity of the proceeding below in some major
respect." Id. at 973. And we may correct such an error only ___
if "a miscarriage of justice would otherwise result." Id. ___
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2. All references are to the 1995 version of the sentencing
guidelines, which indisputably apply here.
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(citing United States v. Frady, 456 U.S. 152, 163 n.14 ______________ _____
(1982)).
Senior's argument overlooks the fact that
application note 2 of U.S.S.G 5G1.3(b) is triggered only by
a district court determination that the Bureau of Prisons
will not credit a federal sentence with time already served
for conduct taken into account in determining the guidelines
range. See U.S.S.G. 5G1.3, comment. (n. 2). Here, the ___
presentence report indicates that the Bureau of Prisons will
reduce Senior's sentence for his time served beginning on
September 28, 1995. The district court, by implication,
adopted this conclusion, and Senior does not contest it.3
Rather, Senior does not allege that his time served will not
properly be credited by the Bureau of Prisons; he merely
seeks, by another means, what he is already destined to
receive. Thus, we find no error, let alone plain error.
B. Alleged Error in Applying U.S.S.G. 4A1.1(d) _________________________________________________
Senior contends, in his pro se supplemental brief, ___ __
that the district court should not have increased his
criminal history category by two points under U.S.S.G.
4A1.1(d) because he was not under a criminal justice sentence
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3. Indeed, Senior recognized in his brief: "Although there
is some indication in the record that the Bureau of Prisons
would deal with the matter of the credit to be awarded to
defendant, the defendant was entitled by the clear mandate of
the guideline and commentary to the reduction of his
sentence." Id. ___
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at the time of the instant offense. Questions such as this,
which involve the applicability of a sentencing guideline,
are reviewed by this court de novo. See United States v. __ ____ ___ _____________
Ruiz, 105 F.3d 1492, 1504 (1st Cir. 1997). ____
Senior correctly states that U.S.S.G. 4A1.1(d)
applies only if the instant offense occurred while he was
under a criminal justice sentence. He then argues that this
guideline does not apply because the execution of his arrest
warrant in 1995 occurred after the scheduled discharge date
of his parole. Therefore, in his view, two points should not
have been added to his criminal history category.
Senior mistakenly perceives his arrest on the
Massachusetts warrant as the relevant offense. The relevant
offense, i.e., the one for which he was sentenced, is being
illegally in this country without the consent of the Attorney
General, 8 U.S.C. 1326. Senior's argument thus rests on a
faulty premise.
At any rate, whether we look to the date of his
unlawful reentry (in April 1992) or of his apprehension (on
March 15, 1996), Senior was under a criminal justice sentence
at either time. It seems obvious that, in April 1992, Senior
was still on parole for his 1989 possession offense, and
that, on March 15, 1996, Senior was still imprisoned for that
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parole violation.4 Accordingly, we find no error in the
district court's application of U.S.S.G. 4A1.1(d).
C. Downward Departure for Agreeing to be Deported __________________________________________________
Lastly, Senior argues that the district court's
decision not to grant a downward departure for his agreeing
to be deported is reviewable because it was not an exercise
of discretion but a ruling based on a mistaken understanding
of the law. Senior further asserts that, because of its
mistaken understanding that it could not depart, the court
did not consider the facts or merits of his request.
A district court's discretionary decision not to
depart below the guideline sentencing range is not
reviewable, except where there is a mistake of law. See ___
United States v. Pierro, 32 F.3d 611, 619 (1st Cir. 1994). _____________ ______
We need not decide whether the district court had
the authority to grant the requested downward departure. The
district court made it clear that it would not grant a
downward departure even if it could. Clearly, this statement
belies Senior's contention that the court did not consider
the merits of his argument for a downward departure.
Moreover, it renders utterly harmless any mistaken view of
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4. We look to both the date of reentry and the date of
apprehension because the indictment did not charge Senior
with unlawful reentry; it only charged him with being found
in the United States, without consent from the Attorney
General, following arrest and deportation. Because Senior
was under a criminal justice sentence on both dates, we need
not decide which is applicable.
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the law harbored by the court. Therefore, even if we had
jurisdiction to entertain this argument, we would reject it.
Affirmed. Affirmed ________
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