United States v. Beatty

United States Court of Appeals
For the First Circuit

No. 06-2481

UNITED STATES OF AMERICA,

Appellee,

v.

LEO BEATTY,

Defendant, Appellant.

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

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Torruella, Wallace,* and Lipez,
Circuit Judges.

Lisa M. Asiaf, Assistant U.S. Attorney, with whom Michael J.
Sullivan, United States Attorney, was on brief, for appellee.
Bruce Green for appellant.

August 12, 2008

*
Of the Ninth Circuit, sitting by designation.
 LIPEZ, Circuit Judge. In light of a congressional

amendment to the sentencing guidelines in 2003, this case requires

us to consider for the first time the scope of the government's

discretion in deciding whether to file a motion for an additional

one-level decrease in the defendant's base offense level for

acceptance of responsibility.

Leo Beatty pleaded guilty to four counts of distribution

of cocaine base, after he sold drugs to an undercover agent working

for the Drug Enforcement Administration ("DEA"). Although he

entered a timely guilty plea, he contested at the change of plea

hearing the weights of the drugs involved and the characterization

of the substance as "crack cocaine," admitting only that it was

"cocaine base." Initially, he also contested – or appeared to

contest – one of the prior drug felonies included in the

government's submission pursuant to 21 U.S.C. § 851.

At sentencing, the district court awarded Beatty a two-

point reduction in his base offense level under the sentencing

guidelines pursuant to U.S.S.G. § 3E1.1(a) for acceptance of

responsibility. However, the court did not award the third-level

reduction under § 3E1.1(b) because the government did not file a

motion recommending such a reduction. Beatty claims that because

he entered a timely guilty plea and because the government did not

engage in any trial preparation, the government did not have any

legitimate rationale for withholding the motion for a third-level

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reduction. Beatty also claims that his sentence of 210 months, the

low-end of the guideline range that applied in his case, is

unreasonable. For the reasons set forth below, we reject both

claims and affirm the sentence imposed by the district court.

I.

On four occasions in February and March 2005, Beatty sold

cocaine base to an undercover DEA agent. On a fifth occasion in

May 2005, the undercover agent arranged another transaction with

Beatty and agents arrested him before the transaction was

completed. Beatty was subsequently indicted by a federal grand

jury for one count of distribution of cocaine base, in violation

of 21 U.S.C. § 841(a)(1), and three counts of distribution of more

than 5 grams of cocaine base, in violation of 21 U.S.C. §

841(a)(1), (b)(1)(B)(iii).2 On August 30, 2005, the government

filed an information pursuant to 21 U.S.C. § 851, notifying Beatty

that the enhanced penalties under 21 U.S.C. § 841(b) would apply

due to prior felony drug convictions in 1992 and 1994. After

lengthy negotiations with the government, Beatty pleaded guilty,

without a plea agreement, to all four counts on May 3, 2006.

During the plea colloquy, Beatty objected to the

government's summary of the factual basis for each of the charges,

2
The indictment also charged the defendant with aiding and
abetting, in violation of 18 U.S.C. § 2, in connection with each
distribution count. The government agreed to drop the aiding and
abetting claims during the plea colloquy.

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stating that he was "not admitting either to weight or to the

substance being crack." He stated that he would only admit "to the

substance being cocaine base." The court determined,

provisionally, that the weight and identity of the substance as

"crack" were relevant only to sentencing. As such, the court

allowed the plea to proceed and reserved those issues for

resolution during the sentencing hearing. The court stated that if

the government, upon reconsideration, moved to vacate the plea on

the ground that the defendant had not sufficiently admitted to the

factual basis for the charges, the court would revisit the issue.

Later in the plea colloquy, the court addressed the prior

convictions set forth in the § 851 information. First, Beatty

agreed that he was the same person who had been convicted on August

4, 1994 of cocaine trafficking and on August 15, 1994 of conspiracy

to traffic cocaine. Beatty then denied that he was the same person

who was convicted in 1992 of conspiracy to traffic cocaine. After

conferring with his attorney, Beatty next objected to the treatment

of the two 1994 convictions as separate convictions. The following

exchange ensued:

COURT: All right. I guess my – my answer to
that is how – what effect this is going to
have on your sentence, that is --
BEATTY: No, it's because --
COURT: --one pleading or two is going to be up
to your lawyer to argue and for me ultimately
to decide.
BEATTY: The only --
COURT: All – all I'm trying to figure out now
is – is – is do you admit that you were

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 convicted on these two different occasions of
this offense?
BEATTY: Yes, your honor.
COURT: All right. And then you deny that you
were convicted on the 1992 offense, right?
BEATTY: 1990 – when?
COURT: '92
BEATTY: Oh, '92, yes, your Honor. That was
conspiracy, correct?
COURT: Yes.
BEATTY: Yes, your Honor.

Following this exchange, the court informed Beatty that any formal

challenge to the convictions identified in the § 851 filing would

have to be made prior to sentencing.

In its initial presentence report ("PSR"), the Probation

Office found that Beatty was responsible for 86.30 grams of cocaine

base,3 which would result in a base offense level ("BOL") of 32.

See U.S.S.G. § 2D1.1(c)(4). This calculation was superceded,

however, by Beatty's career offender status under the guidelines.

See id. § 4B1.1(b). Based on a statutory maximum sentence of 30

years,4 Beatty's BOL was thus 34. See id. The PSR then deducted

3
The four completed transactions involved 4.8 grams, 7.1
grams, 19.9 grams, and 19.0 grams respectively. During the arrest,
the undercover agent seized 24.2 grams from Beatty. A subsequent
search of Beatty's residence, pursuant to a search warrant, yielded
an additional 11.3 grams.
4
Because Beatty did not admit to the drug weights (and the
government did not prove them beyond a reasonable doubt to a jury),
the statutory maximum sentence was governed by the default penalty
provision in 21 U.S.C. § 841(b)(1)(C) rather than the elevated
penalty provision in § 841(b)(1)(B), which is applicable when the
drug quantity includes more than 5 grams of cocaine base. As a
result, the statutory maximum was 30 years rather than life
imprisonment. The government acknowledged at the sentencing
hearing that the court was bound by the lower maximum sentence.

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two levels from the BOL for acceptance of responsibility under

§ 3E1.1(a), producing a total offense level ("TOL") of 32. The

Probation Office noted that the government had advised that it

would not file a motion for a further third-point reduction under

§ 3E1.1(b) because of Beatty's refusal to accept responsibility for

distributing the "crack" form of cocaine base in amounts exceeding

five grams. Based on a TOL of 32 and Beatty's career offender

criminal history category of VI, the PSR calculated Beatty's

guideline sentencing range ("GSR") to be 210-262 months.

Beatty objected to all references to "crack" cocaine in

the PSR and objected to the calculation of his sentence with

reference to the guidelines applicable to cocaine base, a substance

defined by the sentencing guidelines to include only "crack"

cocaine. See U.S.S.G. § 2D1.1(c) cmt. n.(D).5 Beatty also

objected to the government's refusal to move for a third-level

reduction for acceptance of responsibility, noting that he had

entered a timely guilty plea and that the government had not

engaged in trial preparation. Beatty did not contest the 1992

conviction in any written submission.

5
In this circuit, the term "cocaine base" as used in 21 U.S.C.
§ 841 encompasses any form of cocaine base, including but not
limited to crack. United States v. Medina, 427 F.3d 88, 92 (1st
Cir. 2005); United States v. López-Gil, 965 F.2d 1124, 1134 (1st
Cir. 1992) (opinion on rehearing). The more narrow definition in
the note accompanying U.S.S.G. § 2D1.1(c) is relevant only at
sentencing. Medina, 427 F.3d at 92 n.3.

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 The government objected to the Probation Officer's

conclusion that Beatty was entitled to any adjustment for

acceptance of responsibility because, in its view, Beatty had

"frivolously contested" that the drugs at issue were "crack," the

drug weight, and the 1992 conviction described in the § 851

information. In its sentencing memorandum, the government further

contended that, because Beatty had falsely denied the 1992

conviction while under oath, a two-level increase for obstruction

of justice, pursuant to U.S.S.G. § 3C1.1, was warranted. The

government calculated the applicable GSR at 324-405 months.

Prior to the sentencing hearing, the government invested

significant time and resources in gathering evidence to establish

the drug type and weight and the authenticity of Beatty's 1992

conviction. The government prepared transcripts of the phone calls

between the undercover agent and Beatty, which provided some

evidence that the substance he sold was "crack" because Beatty had

described his technique for "cooking" the drugs. The government

also worked with the undercover agent to prepare a detailed

affidavit recounting the details of the transactions to show that

the substance involved was crack cocaine. The undercover agent was

also prepared to testify orally at the sentencing hearing. The

government also had the drugs analyzed by a forensic chemist who

prepared a report concluding that, based on their appearance, the

drugs were crack cocaine and setting forth the drug weights. The

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government further expended resources to confirm that Beatty was

the person named in the 1992 conviction, including arranging for a

fingerprint expert to be available to testify at the sentencing

hearing.

At the sentencing hearing, the court reviewed the written

evidence presented by the government and heard arguments from both

parties as to drug type and weight.6 The court found by a

preponderance of the evidence "that the substance at issue was, in

fact, crack cocaine, a form of cocaine base" and "that the drug

weights involved as to Counts 2, 3, and 4, which were 7.1 grams,

19.9 grams and 19.0 grams, respectively, all exceed 5 grams."7

Turning to the 1992 conviction, the government stated that just

prior to the hearing Beatty had informed the government that he was

retracting his challenge to the conviction.8 Beatty's counsel

stated that Beatty's apparent denial of the 1992 conviction at the

plea colloquy was due to confusion. The court had asked a series

of questions calling for an affirmative answer and then asked an

6
Beatty did not offer any evidence and did not contest the
accuracy or credibility of the government's evidence. He argued
only that the government's evidence was insufficient to meet its
burden.
7
Because Beatty's career offender status superceded the base
offense level calculated from the drug weights, this factual
finding by the district court has no operative effect on Beatty's
sentence in this case.
8
As a result of this retraction, the government withdrew its
recommendation that a two-level increase for obstruction of justice
be applied to Beatty's GSR calculation.

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additional question calling for a negative answer. Counsel

contended that Beatty was simply confused by the exchange and had

not intended to deny the conviction. Further, counsel argued that

the denial was immaterial because Beatty had admitted to the 1994

convictions and only one prior drug conviction is required to

invoke the enhanced penalty provisions of § 841(b)(1)(C).9 The

court then found that the 1992 conviction belonged to Beatty.

The court next turned to the acceptance of responsibility

reduction under U.S.S.G. § 3E1.1. The court stated that it would

grant Beatty the two-level reduction under § 3E1.1(a), but it would

not award the third level pursuant to § 3E1.1(b) because there was

no government motion. The court explained:

It seems to me that the government certainly
can take the position that it's not going to
move under – for the third level under (b) if
the defendant requires it to be put to a lot
of trouble by contesting facts that ought not
genuinely to be in dispute; that is to say,
I'm not finding that the defendant frivolously
contested these issues, and, therefore, am
awarding the second level, but I also
understand that the government in good faith
could take a contrary view having required its
agents and experts and so forth to come to
Court and be put to a considerable amount of
trouble.
. . .
I guess what I'm saying is I don't find a due
process violation by the – on the part of the
government if it's taking the position that

9
Beatty's counsel sought to characterize the second conviction
as merely a sentencing issue rather than an "acceptance of
responsibility" question because the second conviction was not
necessary as a factual predicate for his plea under § 841(b)(1)(C).

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 the defendant did falsely deny these facts,
and I'm going to leave it there.

The court then calculated Beatty's GSR at 210-262 months. The

government recommended a sentence of 210 months. The court heard

from Beatty's counsel, who advocated for a below-guideline sentence

due to Beatty's age and military service, and from Beatty, who

spoke of his struggles to succeed in the face of racism. The court

concluded that these considerations were outweighed by other

factors under 18 U.S.C. § 3553(a), including the seriousness of the

offense and Beatty's repeated convictions for the same crime.

Accordingly, the court imposed a low-end guideline sentence of 210

months. The instant appeal ensued.

II.

This case presents an issue of first impression in this

circuit regarding the effect of a 2003 congressional amendment to

the federal sentencing guidelines governing reductions for

acceptance of responsibility. See Prosecutorial Remedies and Tools

Against the Exploitation of Children Today Act of 2003 ("PROTECT

Act"), Pub. L. No. 108-21, 117 Stat. 650 (2003); U.S.S.G. §

3E1.1(b) (2003). Under the prior version of § 3E1.1(b), a

defendant who had received a two-level reduction for general

acceptance of responsibility under § 3E1.1(a) and whose offense

level was 16 or greater, was entitled to receive an additional one-

level reduction if he had "timely notif[ied] authorities of his

intention to enter a plea of guilty, thereby permitting the

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government to avoid preparing for trial and permitting the court to

allocate its resources efficiently." We held that this guideline

provision "[did] not confer any discretion on the sentencing judge

to deny the extra one-level reduction so long as the subsection's

stated requirements [were] satisfied." United States v. Talladino,

38 F.3d 1255, 1264 (1st Cir. 1994). We further held that a

defendant's decision to contest matters solely related to

sentencing would not disqualify him from the § 3E1.1(b) reduction.

See United States v. Cunningham, 201 F.3d 20, 24 (1st Cir. 2000)

(characterizing forfeitures as "elements of the sentence, rather

than a part of the criminal offense itself" and holding that the

the district court erred in relying on the defendant's refusal to

accept forfeiture allegations to deny him the § 3E1.1(b) decrease).

However, in 2003 Congress amended the text of § 3E1.1(b) to read:

If the defendant qualifies for a decrease
under subsection (a), the offense level
determined prior to the operation of
subsection (a) is level 16 or greater, and
upon motion of the government stating that the
defendant has assisted authorities in the
investigation or prosecution of his own
misconduct by timely notifying authorities of
his intention to enter a plea of guilty,
thereby permitting the government to avoid
preparing for trial and permitting the
government and the court to allocate their
resources efficiently, decrease the offense
level by 1 additional level.

(Emphasis added.)10

10
With the PROTECT Act, Congress exercised its authority to
directly amend the sentencing guidelines by statute. The statute

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 Every other circuit that has considered this revised

provision has characterized the 2003 amendment as making the award

of a § 3E1.1(b) reduction contingent on the government's decision

to file a motion requesting the reduction. See United States v.

Drennon, 516 F.3d 160, 162-63 (3d Cir. 2008); United States v.

Newson, 515 F.3d 374, 378 (5th Cir. 2008), cert. denied, 128 S. Ct.

2522 (2008); United States v. Pacheco-Díaz, 506 F.3d 545, 552 (7th

Cir. 2007); United States v. Gunn, 215 Fed. Appx. 785, 791-92 (11th

Cir. 2007)(unpublished), cert. denied, 128 S. Ct. 265 (2007);

United States v. Chase, 466 F.3d 310, 315 (4th Cir. 2006); United

States v. Sloley, 464 F.3d 355, 360 (2d Cir. 2006), cert. denied,

127 S. Ct. 1900 (2007); United States v. Espinoza-Cano, 456 F.3d

1126, 1136 (9th Cir. 2006); United States v. Moreno-Trevino, 432

F.3d 1181, 1185-86 (10th Cir. 2005); United States v. Wattree, 431

F.3d 618, 623-24 (8th Cir. 2005); United States v. Smith, 429 F.3d

620, 628 (6th Cir. 2005). We join them in holding that the revised

provision gives the government discretion – akin to its discretion

under the substantial assistance provision of the guidelines, see

Wade v. United States, 504 U.S. 181, 185-86 (1992) (describing

prosecutorial discretion under U.S.S.G. § 5K1.1) – to determine

also added a second paragraph to Application Note 6 stating that
"[b]ecause the Government is in the best position to determine
whether the defendant has assisted authorities in a manner that
avoids preparing for trial, an adjustment under subsection (b) may
only be granted upon a formal motion by the Government at the time
of sentencing."

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whether to file a such a motion. Under this standard, a defendant

who challenges the prosecutor's refusal to file a motion under the

revised § 3E1.1(b) must show that the refusal "'was based on an

unconstitutional motive'" or "'was not rationally related to any

legitimate Government end.'" Moreno-Trevino, 432 F.3d at 1185

(quoting Wade, 504 U.S. at 185-86); Espinoza-Cano, 456 F.3d at 1138

("[T]he defendant must present objective evidence of an improper

motive on the part of the government.").

Both the government and Beatty agree that the language in

§ 5K1.1 is analogous to the revised text of § 3E1.1(b) and that the

standard adopted in Wade should be extended to the review of the

government's decision to withhold a motion under § 3E1.1(b).

Section 5K1.1 provides that "[u]pon motion of the government

stating that the defendant has provided substantial assistance in

the investigation or prosecution of another person who has

committed an offense, the court may depart from the guidelines."

Both provisions condition adjustment on the government's decision

to file a motion. The Supreme Court has explained that § 5K1.1

serves as a limit on the sentencing court's authority to adjust the

guideline calculation. Wade, 504 U.S. at 186-87. On the other

hand, the provision confers on the prosecutor nearly unfettered

discretion to determine whether to move for the adjustment, based

on a "rational assessment of the cost and benefit that would flow

from moving." Id. at 187. Thus, the Court held that § 5K1.1 gives

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the government "a power, not a duty, to file a motion when a

defendant has substantially assisted." Id. at 185. Put

differently, the Court explained that "although a showing of

assistance is a necessary condition for relief [under § 5K1.1], it

is not a sufficient one." Id. at 187.

Following Wade, we have held that "[f]or the most part,

the government has unbridled discretion in deciding whether to file

such a motion." United States v. Sandoval, 204 F.3d 283, 285 (1st

Cir. 2000). The government's discretion is constrained in only two

situations:

The first involves cases in which the
government's failure to move for a substantial
assistance departure is based on some
constitutionally impermissible factor (say,
race or religion), or is "not rationally
related to [some] legitimate Government end."
The second involves cases in which the
government explicitly undertakes to make, or
to consider making, such a motion.

Id. at 286 (quoting Wade, 504 U.S. at 185-86) (internal citation

omitted). Beatty agrees that this standard now applies to our

review of the government's discretion under the revised acceptance

of responsibility provision. He attempts to meet this standard by

asserting that the only "legitimate Government end" that the

government may consider in exercising its discretion under

§ 3E1.1(b) is the avoidance of trial preparation. Thus, he

contends that the government's decision to withhold the motion in

his case, where no trial preparation took place, was not rationally

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related to a legitimate government end. Relying on our pre-2003

case law, he argues that "[t]he touchstone of § 3E1.1(b) is trial

preparation, not sentencing issues." In effect, he claims that

entering a timely guilty plea so as to permit the government to

avoid preparing for trial is both a necessary and a sufficient

condition for receiving the reduction.

This highly circumscribed definition of "legitimate

government end" is wholly inconsistent with the plain language of

the revised provision, which, like its analogue in § 5K1.1, creates

a "power, not a duty" to move for a reduction. If the government

were required to move for the third-level reduction when the

defendant enters a timely plea, thereby saving the government the

expense of trial preparation, the amended language requiring that

the government file a motion would be a nullity. Such a holding

would effectively reinstate the pre-2003 version of § 3E1.1 by

rendering entitlement to the motion automatic if the defendant

received the reduction under § 3E1.1(a) and entered a "timely"

plea.

Beatty avers that this is the appropriate result. He

claims that the 2003 amendment was intended to change the

"mechanism" for granting the third-level reduction but was not

intended to alter the criteria for such a reduction. We disagree.

As amended, the touchstone of § 3E1.1 is no longer trial

preparation, but rather the presence of a government motion for the

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third-level reduction. See United States v. Borer, 412 F.3d 987,

991 (8th Cir. 2005) ("The PROTECT Act amendment made it materially

more difficult for [defendant] to earn a reduction for acceptance

of responsibility by adding a requirement that the government

authorize the court to grant a third level reduction."); cf.

Sandoval, 204 F.3d at 285 ("The sine qua non for a section 5K1.1

departure is the filing of a motion to that effect by the

government."). Now, rather than turning on the timeliness of the

plea and the avoidance of trial preparation, the entitlement to the

third-level reduction turns on whether both the court and the

government are satisfied that "the acceptance of responsibility is

genuine." Sloley, 464 F.3d at 360. The new version of § 3E1.1 is

"crafted and structured in a manner that divides the power to

reduce a defendant's offense level for acceptance of responsibility

between the sentencing court and the prosecutor." Id. at 359.

This division of power "implicitly contemplates situations in which

a court may find acceptance of responsibility while the government

prosecutor may not." Id. That is precisely what happened in this

case: the district court concluded that Beatty had not falsely

denied or frivolously contested relevant conduct, but acknowledged

that the government reasonably disagreed with that conclusion. See

U.S.S.G. § 3E1.1 cmt. n.1(a) ("[A] defendant who falsely denies, or

frivolously contests, relevant conduct that the court determines to

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be true has acted in a manner inconsistent with acceptance of

responsibility.").

Beatty argues that "[i]t is certainly appropriate for the

Defendant to contest issues which may affect his sentence and it is

not a legitimate end for the government to restrict that."

However, the government's decision not to move for the third-level

reduction does not "restrict" the defendant's right to contest

issues relevant to his sentence. In addressing this same argument,

the Tenth Circuit explained that "when a defendant chooses to trade

the exercise of such rights for a reduction in sentence, this does

not mean that the government has 'interfered' with the right."

United States v. Blanco, 466 F.3d 916, 919 (10th Cir. 2006).

Although a defendant has a right to contest the drug weights, for

example, he may exercise that right either by requiring the

government to prove the weight of the drugs or "by waiving that

right in exchange for a lower sentence." Id.; see also Newson, 515

F.3d at 377 (upholding the government's discretion to withhold a

§ 3E1.1(b) motion solely because defendant would not agree to the

appellate waiver in the proposed plea agreement).

To be sure, the government's broad discretion to withhold

the motion would create a disincentive for challenging issues

relevant to sentencing, but such disincentives are not improper.

See Espinoza-Cano, 456 F.3d at 1137-38 (holding that there is

nothing improper about using a § 3E1.1(b) motion as an incentive to

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plea bargain); accord Corbitt v. New Jersey, 439 U.S. 212, 218

(1978) ("[N]ot every burden on the exercise of a constitutional

right, and not every pressure or encouragement to waive such a

right, is invalid."). The defendant is free to weigh the

disincentive against the benefit that may result from contesting

the sentencing issues, just as the government, in exercising its

discretionary authority, may rationally weigh "the cost and benefit

that would flow from moving" for the third-point reduction. See

Wade, 504 U.S. at 187. Here, the government, for its part,

rationally concluded that the benefit of moving for a third-level

reduction was outweighed by the costs.11 This conclusion is

adequately justified by the government's reasonable determination

that Beatty frivolously contested the drug type and weight in the

face of overwhelming factual evidence and falsely denied the 1992

conviction. As such, the district court did not err in refusing to

grant the third-level reduction under § 3E1.1(b).

11
In this case, Beatty actually benefitted from contesting the
weight of the drugs involved, even though it cost him the
additional one-level reduction under § 3E1.1(b). Because he did
not admit to distribution of more than 5 grams of cocaine base, he
was sentenced under the lower statutory maximum of 30 years rather
than life imprisonment. Compare 21 U.S.C. § 841(b)(1)(B) with
§ 841(b)(1)(C). This had the collateral effect, under the career
offender guidelines, of lowering his BOL from 37 to 34. See
U.S.S.G. § 4B1.1(b). This three-level differential provided Beatty
with a much greater benefit than the one-level benefit that would
have been available if the government had filed the § 3E1.1(b)
motion.

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 III.

Beatty also argues that his sentence, despite being at

the low end of the guideline range, is substantively unreasonable.12

A defendant who wishes to attack "an in-guideline-range sentence as

excessive" must "adduce fairly powerful mitigating reasons and

persuade us that the district judge was unreasonable in balancing

pros and cons despite the latitude implicit in saying that a

sentence must be 'reasonable.'" United States v.

Navedo-Concepción, 450 F.3d 54, 59 (1st Cir. 2006). Beatty's

argument falls far short of this standard. He avers that the

district court failed to properly consider his age, military

service, employment record, and his allegedly low risk of

recidivism in calculating his sentence. We disagree. The district

court expressly considered these factors, noting that "to some

extent" Beatty was an unusual defendant and that "at least in the

abstract . . . the risk of recidivism for someone who is 48 and

with the defendant's background is lower than – than ordinary."

The court then weighed these observations against the fact that

Beatty had "not been deterred by his prior convictions or

incarcerations." The court also concluded that "the age factor can

be turned around," noting that "[t]here is no question that [Beatty

is] a mature adult and that this is not a youthful mistake." The

12
Beatty does not assert that any procedural error occurred in
his sentencing.

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district court thus properly considered the defendant's arguments

for a variance and reasonably rejected them. As such, we see no

"powerful mitigating reason" to conclude that the resulting

sentence was unreasonable.

Affirmed.

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