          United States Court of Appeals
                     For the First Circuit

No. 13-1690

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                   HIRAM M. FIGUEROA-FIGUEROA,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO


        [Hon. Aida M. Delgado-Colón, U.S. District Judge]



                             Before

                      Howard, Chief Judge,
                Selya and Lipez, Circuit Judges.



     Hector E. Guzmán-Silva, Federal Public Defender, Hector L.
Ramos-Vega, Supervisory Assistant Federal Public Defender, and
Patricia A. Garrity, Assistant Federal Public Defender, on brief
for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Juan Carlos Reyes-Ramos, Assistant United States
Attorney, on brief for appellee.



                          July 1, 2015
           LIPEZ, Circuit Judge.    On two consecutive days in March

2012, Hiram L. Figueroa-Figueroa ("Figueroa") engaged in a total of

six acts of violence, all at gunpoint.1   He commandeered a vehicle,

forced the driver from the car, and took money and other items from

the victim; stole two women's handbags in separate incidents;

demanded money from a man pumping gas; forced a motorist who was

withdrawing cash from an ATM to turn over the money and his car;

and, while unsuccessfully trying to escape from police officers,

brandished a loaded revolver.   Figueroa was charged with numerous

Puerto Rico offenses and, under federal law, being a felon in

possession of a firearm.2   See 18 U.S.C. §§ 922(g)(1), 924(a)(2).

           After pleading guilty to the federal charge, Figueroa was

sentenced to an 87-month term of imprisonment to run consecutively

to his previously imposed 12-year sentence on the commonwealth

charges.    On appeal, Figueroa claims that the district court

erroneously ignored a provision of the United States Sentencing

Guidelines ("the Guidelines") requiring concurrent sentencing for

the federal and state offenses.      See U.S.S.G. § 5G1.3(b) (2012).

Finding the sentence as imposed to be proper, we affirm.




     1
       Because this appeal follows a guilty plea, we draw the
background facts from the plea colloquy and sentencing materials.
See United States v. Whitlow, 714 F.3d 41, 42 (1st Cir. 2013).
     2
      The federal charge stemmed from Figueroa's use of a gun when
resisting arrest.     Officers had confronted him based on a
description given by a witness to one of the robberies.

                                   -2-
                             I. Background

           Figueroa's two-day crime spree resulted in six robbery

convictions under Puerto Rico law,3 each with a three-year term of

imprisonment to be served concurrently with the other five, and

nine Puerto Rico weapons convictions, each with a one-year sentence

to be served consecutively with each other and with the term for

the robbery charges.    Figueroa was thus sentenced to a total of

twelve years for the state crimes: nine years for the weapons

violations and three for the robberies.      That term of imprisonment

was imposed in January 2013; the federal sentencing proceedings

took place three months later, in April.

           The presentence investigation report ("PSR") prepared in

advance of the federal sentencing, as amended, set Figueroa's

adjusted offense level at 25.        That calculation included a four-

level enhancement because Figueroa had used and possessed a firearm

and ammunition in connection with another felony offense.              See

U.S.S.G. § 2K2.1(b)(6)(B).         Although the other offense was not

identified, it is undisputed that the PSR relied on some criminal

activity   prosecuted   by   the    commonwealth   to   boost   Figueroa's

recommended total Guidelines offense level above the level that

otherwise would have applied for unlawfully possessing a firearm.


     3
       Although Puerto Rico is not a state, we have long treated
"commonwealth" crimes as "state" crimes under the Guidelines. See
United States v. Torres-Rosa, 209 F.3d 4, 8 (1st Cir. 2000). We
thus use that label throughout this opinion to refer to Figueroa's
offenses under Puerto Rico law.

                                    -3-
The resulting advisory sentencing range was 70 to 87 months'

imprisonment.

             In his federal sentencing memorandum, Figueroa asked the

court to impose his federal term concurrent with his commonwealth

sentence "as it involves the same facts . . . [and] specifically

include[s]    a    weapons   charge."       He   invoked     §   5G1.3   of   the

Guidelines, which explains when a later federal sentence must be

imposed consecutively or concurrently with a prior undischarged

term of imprisonment, see § 5G1.3(a), (b), and when a court has

discretion    to   choose    the   approach,     see   §   5G1.3(c).     In   its

memorandum, the government urged an 87-month term of imprisonment.

The government noted that the court had the discretion to impose a

concurrent or consecutive sentence, but it made no recommendation

on that subject.

             At Figueroa's federal sentencing hearing, his attorney

requested a sentence of 70 months -- the low end of the Guidelines

range -- and argued that Figueroa's federal and state sentences

should be concurrent because "[s]ome of the events" underlying the

state sentence "are relevant to this sentence."              In advocating for

a concurrent sentence, defense counsel expressed her belief that

Figueroa would not be eligible for early release from his state

sentence on the weapons charges, but admitted uncertainty on that

point.   The prosecutor, after detailing Figueroa's history of

"serious crimes," recommended a consecutive sentence of 87 months


                                      -4-
based on the sentencing factors listed in 18 U.S.C. § 3553(a).4

Neither party referenced Guidelines § 5G1.3(b).

          The district court accepted the PSR calculation and the

resulting sentencing range of 70 to 87 months.         Acknowledging its

duty to consider the § 3553(a) factors to determine the appropriate

term of imprisonment, the court then reviewed Figueroa's personal

and   criminal   background,   including    his   failure   to    satisfy

conditions associated with lenient sentences he had received for

crimes in 2002 and 2007.       The court recognized that Figueroa's

actions may have stemmed in part from his chronic drug abuse and

emotional problems, but observed that "right now he is acting like

a time bomb."    Noting that the statutory factors were pertinent to

both "what is the proper sentence and whether that sentence is to

be imposed concurrent or consecutive to the State sentence," the

court determined that a consecutive sentence of 87 months was

appropriate and "not . . . harsher th[a]n necessary."

          Following    the   court's    explanation,    defense   counsel

indicated that a motion for reconsideration might be filed and, if

so, it would clarify whether Figueroa will be required to serve out


      4
       The prosecutor explicitly pointed to the court's obligation
to consider "the nature and circumstances of the offense and the
history and characteristics of the defendant." 18 U.S.C.
§ 3553(a)(1).   Other factors a sentencing court must consider
include the need to "provide just punishment for the offense,"
"afford adequate deterrence," "protect the public from further
crimes of the defendant," and provide the defendant with needed
"training, medical care, or other correctional treatment in the
most effective manner." Id. § 3553(a)(2)(A)-(D).

                                  -5-
the full sentence for the state weapons violations. The court then

responded as follows:

                  If the argument is that he will have to
           serve 12 natural years and then the 8 years
           [i.e., the federal sentence], let me tell you
           that the sentence that I imposed is extremely
           lenient even assuming that he gets a 12 year
           sentence. I will not vary the sentence. I
           think that the defendant needs a harsh
           sentence.    He placed the li[ves] of five
           individuals at risk.    He has been receiving
           lenient sentences in the past, he has done
           nothing to rehabilitate himself. He has not
           come to terms with the fact[] that he needs
           rehabilitation.   He is lucky that I didn't
           sentence him pursuant to the Statute.5

           Figueroa did move for reconsideration, complaining that

the amended PSR improperly suggested that he received only a three-

year state sentence for all of the criminal activity committed on

March 11 and 12, 2012. The motion emphasized that he was sentenced

to a 12-year term and reported that he will not qualify for early

release. The motion further urged reconsideration of the impact of

his mental health and drug abuse, noting that he did not harm his

victims and was "an addict looking for money for his 'fix.'"   The

motion asserted that Figueroa was being punished for his conduct

with a "stiff" state sentence and, hence, "[m]aking [his federal]

sentence consecutive is imposing a sentence longer than necessary

under 18 U.S.C. § 3553."    The motion did not mention Guidelines

§ 5G1.3.


     5
       In referring to "the Statute," the court may have meant the
statutory maximum of ten years. See 18 U.S.C. § 924(a)(2).

                                -6-
           In response, the government argued that the district

court had no authority to reconsider the sentence, see United

States v. Ortiz, 741 F.3d 288, 292 n.2 (1st Cir. 2014) (stating

that "[t]here is simply no such thing as a 'motion to reconsider'

an otherwise final sentence" (quoting United States v. Dotz, 455

F.3d 644, 648 (6th Cir. 2006))), and cited, inter alia, Guidelines

§ 5G1.3 to support its assertion that the court properly exercised

its discretion to impose a consecutive sentence.                  The district

court never ruled on the motion for reconsideration.6

                              II. Discussion

A. Standard of Review

           Criminal     sentences     ordinarily        are     reviewed      for

procedural and substantive reasonableness under the abuse-of-

discretion standard.     See, e.g., United States v. Rivera-González,

776 F.3d 45, 48 (1st Cir. 2015). Within that deferential standard,

subsidiary matters of law are afforded de novo scrutiny and

findings   of   fact   are   evaluated    for   clear   error.       Id.      The

"procedural     dimension"     of   sentencing       review      includes     the

correctness of the court's application of the Guidelines, while

"[t]he   substantive    dimension   focuses     on   the      duration   of   the

sentence in light of the totality of the circumstances."                   United

States v. Del Valle-Rodríguez, 761 F.3d 171, 176 (1st Cir. 2014).



     6
      Because we affirm the sentence, the district court's failure
to rule on the motion to reconsider is immaterial.

                                    -7-
             Figueroa   asserts   that    the    district      court   committed

procedural    error,    and   consequently      abused   its    discretion,   by

failing to consider § 5G1.3(b) and its guidance that his federal

sentence must be imposed to run concurrently with his undischarged

state sentence.      The government asserts that Figueroa failed to

preserve this claim in the district court and it should therefore

be reviewed only for plain error.          See United States v. Santiago-

Burgos, 750 F.3d 19, 24 (1st Cir. 2014). The government points out

that, despite invoking § 5G1.3(b) in his sentencing memorandum,

Figueroa did not rely on that provision at his sentencing hearing

and never argued to the district court that it had misapplied the

Guidelines    or   committed    procedural      error.      That   omission   is

particularly significant, the government argues, because Figueroa

carried the burden of proving that § 5G1.3(b) applies.                 See United

States v. Carrasco-de-Jesús, 589 F.3d 22, 28 (1st Cir. 2009).

             Although the circumstances here may amount to forfeiture,

we need not dwell on that issue.         Even under the standard of review

applied to preserved claims, Figueroa's assertion of error is

unavailing.

B. Legal Principles

             Pursuant to federal statutory law, a sentence imposed on

a defendant who is "already subject to an undischarged term of

imprisonment" may run either concurrently or consecutively as the

court deems appropriate, with exceptions that are inapplicable


                                    -8-
here.       18 U.S.C. § 3584(a); see also Setser v. United States, 132

S. Ct. 1463, 1467 (2012) (describing § 3584).             In making its

choice, the court is directed to consider the factors listed in

§ 3553(a), see 18 U.S.C. § 3584(b), which include any applicable

sentencing guidelines and policy statements, see id. § 3553(a)(4),

(5); see also Carrasco-de-Jesús, 589 F.3d at 27.         The Guidelines,

of course, are now advisory rather than mandatory.              See, e.g.,

United States v. Millán-Isaac, 749 F.3d 57, 66 (1st Cir. 2014).

Nonetheless, "even though sentencing judges are free to impose non-

Guidelines sentences in appropriate cases, 'district courts must

still give respectful consideration to the now-advisory Guidelines

(and their accompanying policy statements).'" Id. at 67 (quoting

Pepper       v.   United   States,   562   U.S.   476,    501     (2011)).

               At issue here are two subsections of Guidelines § 5G1.3.7


        7
       In the November 2012 version of the Guidelines, § 5G1.3
stated, in pertinent part, as follows:

        (a) [explaining when sentences must run consecutively]

        (b) If . . . a term of imprisonment resulted from another
        offense that is relevant conduct to the instant offense
        of conviction under the provisions of subsections (a)(1),
        (a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct) and that
        was the basis for an increase in the offense level for
        the instant offense under Chapter Two (Offense Conduct)
        or Chapter Three (Adjustments), the sentence for the
        instant offense shall be imposed . . . to run
        concurrently to the remainder of the undischarged term of
        imprisonment.

        (c) (Policy Statement) In any other case involving an
        undischarged term of imprisonment, the sentence for the
        instant offense may be imposed to run concurrently,

                                     -9-
Subsection (b), which Figueroa claims applies, calls for concurrent

sentences when two factors exist: (1) the defendant's undischarged

term of imprisonment stemmed from "another offense that is relevant

conduct   to   the     instant   offense    of   conviction"    under    certain

sections of § 1B1.3, and (2) that other relevant-conduct crime "was

the basis for an increase in the offense level" for the instant

conviction     under    Chapters   Two     or    Three   of   the   Guidelines.

Subsection (c), claimed applicable by the government, allows a

court in any case not governed by the other subsections to choose

concurrent, partially concurrent, or consecutive sentences "to

achieve a reasonable punishment for the instant offense."

C. Analysis

             Figueroa insists that subsection (b) of § 5G1.3 applies

here because the PSR, and the district court in turn, treated the

state crimes underlying his undischarged term of imprisonment as

"relevant conduct" under the Guidelines and, hence, factored those

crimes into the calculation of his federal sentence.8                   In other



     partially concurrently, or consecutively to the prior
     undischarged term of imprisonment to achieve a reasonable
     punishment for the instant offense.
     8
        "Relevant conduct" includes "all acts and omissions
committed . . . by the defendant . . . that occurred during the
commission of the offense of conviction, in preparation for that
offense, or in the course of attempting to avoid detection or
responsibility for that offense," and, with respect to certain
types of crimes, "all acts and omissions . . . that were part of
the same course of conduct or common scheme or plan as the offense
of conviction." U.S.S.G. § 1B1.3(a)(1)(A), (a)(2).

                                     -10-
words, he argues that the court should have imposed a concurrent

federal sentence because his state crimes were used to boost his

Guidelines offense level, thereby increasing the length of his

federal sentence.     That argument, however, misses its mark.         The

commentary to § 5G1.3 states that subsection (b) applies only where

"all of the prior offense" both is relevant conduct and increases

the total Guidelines offense level.            See U.S.S.G. § 5G1.3 cmt.

n.2(A) (emphasis added).         The commentary further explains that

"[c]ases in which only part of the prior offense is relevant

conduct to the instant offense are covered under subsection (c)."

Id.   At the sentencing hearing, defense counsel recognized that

Figueroa's state crimes included conduct distinct from his federal

offense, observing that "[s]ome of the events" underlying the state

sentence "are relevant to this sentence."            The district court

similarly appeared to draw that distinction when it commented,

while describing Figueroa's escapades, that the violent behavior

was "different illegal conduct" from his federal unlawful firearm

possession, which related to his conduct during apprehension.

          Even   if   all   of   his   state    offenses   were   "relevant

conduct," however, § 5G1.3(b) would not apply unless they all also

contributed to an increase in his Guidelines offense level.            See

United States v. Dunbar, 660 F.3d 54, 57 (1st Cir. 2011) (per

curiam) (rejecting applicability of § 5G1.3(b) where relevant

conduct "had no causative effect on the federal range or sentence"


                                   -11-
(emphasis omitted)); Carrasco-de-Jesús, 589 F.3d at 28 (rejecting

an interpretation of § 5G1.3(b) "under which an incremental loss

that would not have affected the offense level could nonetheless be

regarded as forming the 'basis' for an increase in that level").

As   described   above,   the   PSR    assigned    Figueroa    a   four-level

enhancement in his Guidelines offense level because he "used and

possessed a firearm and ammunition in connection with another

felony   offense."    Second    Amended      PSR   at   3   (citing   U.S.S.G.

§ 2K2.1(b)(6)(B)).        Although Figueroa committed multiple such

offenses during the two days preceding his arrest, leading to six

convictions for robbery with sentences to be served concurrently,

only one qualifying offense was needed to trigger the enhancement.

Hence, most of his undischarged state term of imprisonment stems

from criminal activity that did not impact his adjusted offense

level, placing his circumstances outside the scope of subsection

(b) and squarely within the coverage of subsection (c).

           A refusal to apply subsection (b) where the defendant had

"surplus" relevant conduct -- i.e., more prior criminal acts than

necessary to reach the Guidelines calculation -- is consistent with

that provision's purpose to avoid or mitigate double punishment.

We have concluded that "[n]o such double punishment is threatened

where . . . the relevant conduct did not affect the governing final

guideline calculation." Dunbar, 660 F.3d at 57 (emphasis omitted).

Here, too, where there is little overlap in the criminal activity


                                      -12-
that determined Figueroa's state and federal terms of imprisonment,

the Guidelines provided the district court with the discretion

under subsection (c) to decide how much, if any, of the federal

sentence should run concurrently with his undischarged state term.

           Figueroa   wisely   does   not   argue    on   appeal   that   the

district   court   abused   its   discretion    in    finding      that   the

considerations under § 3553(a), aside from Guidelines § 5G1.3,

support a consecutive sentence.          The district court adequately

explained why it concluded that Figueroa should serve a lengthy

sentence despite his personal challenges.            As its choice of a

consecutive period of incarceration was authorized by statute and

consistent with the Guidelines, we have no basis for disturbing the

sentence imposed.9

                                  III.

           Having found that the district court did not err by

failing to apply subsection (b) of Guidelines § 5G1.3, we affirm

its sentencing judgment.

           So ordered.




     9
       We thus need not reach the government's assertion that any
error in imposing a consecutive term would in any event be harmless
because Figueroa is serving his federal sentence first, and state
authorities are free to disregard the federal court's chosen
approach.   See Setser, 132 S. Ct. at 1471 (noting that, if a
prisoner "serves his federal sentence first, the State will decide
whether to give him credit against his state sentences without
being bound by what the district court or the Bureau [of Prisons]
said on the matter").

                                  -13-
