
USCA1 Opinion

	




                                [Not for Publication]                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 97-1079                                    UNITED STATES,                                      Appellee,                                          v.                                 RODERICK L. SENIOR,                                Defendant, Appellant.                                 ____________________                     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.                                         _____________                                 ____________________            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                                 ____________________                      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                                            ____________________            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.                                         -3-                                          3            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                                         -4-                                          4            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.                                                                      ___                                            ____________________            2.   All references are to the 1995 version of the sentencing            guidelines, which indisputably apply here.                                         -5-                                          5            (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                                            ____________________            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.                        ___                                         -6-                                          6            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                                         -7-                                          7            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                                            ____________________            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.                                         -8-                                          8            the  law harbored by  the court.   Therefore, even if  we had            jurisdiction to entertain this argument, we would reject it.                      Affirmed.                      Affirmed                      ________                                         -9-                                          9
