                Not for Publication in West's Federal Reporter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


                                      -4-
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)


                                          -5-
(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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