               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit


No. 08-1371

                            UNITED STATES,

                               Appellee,

                                    v.

                         MICHAEL J. LOVELY,

                       Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE


           [Hon. D. Brock Hornby, U.S. District Judge]


                                 Before

                        Lynch, Chief Judge,
              Torruella and Boudin, Circuit Judges.



     Elaine Mittleman on brief for appellant.
     Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby,
United States Attorney, on brief for appellee.



                            March 26, 2009
      Per Curiam.    Defendant-appellant Michael Lovely appeals from

his sentence, arguing that the district court did not recognize it

had discretion to reduce a career criminal offender Guideline

sentence and that it did not sufficiently take into consideration

Lovely's background in sentencing him.          The sentence is affirmed.

      We review questions of law, such as the legal meaning of the

Sentencing Guidelines, de novo.            See United States v. Vazquez-

Botet, 532 F.3d 37, 65 (1st Cir. 2008).        Review of findings of fact

is for clear error, United States v. Cali, 87 F.3d 571, 575 (1st

Cir. 1996), and appellate review of the overall sentence is for

reasonableness. United States v. Jimenez-Beltre, 440 F.3d 514, 519

(1st Cir. 2006) (en banc).

Application of 28 U.S.C. § 994(h)

      There was no error in the court's imposition of a Guideline

sentence.   The court recognized that the Guidelines were advisory

only. During the Guideline calculations, the court made clear that

it understood the Guideline range to be advisory in the context of

the application of career criminal offender statute, 28 U.S.C. §

994(h), stating, "[994(h) is] not determinative.            It doesn't set a

minimum. It's not a mandatory." The court properly considered the

Guideline range in determining the sentence imposed.              As we have

recently noted in a career offender case, sentencing judges now

have "considerable leeway to vary from the Guidelines range," but

the   Guidelines    remain   the   starting   point   for   any   sentencing


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decision, and "the Guidelines range may substantially influence a

particular defendant's sentence, especially when large increases

imposed on career offenders are involved."                    United States v.

Giggey, 551 F.3d 27, 29 (1st Cir. 2008) (en banc).

      18 U.S.C. § 3553(a)(4) requires sentencing courts to consider

the category of the defendant as set forth in the Guidelines, and

§   3553(a)(5)   requires      consideration      of   "any   pertinent   policy

statement...issued        by   the   Sentencing        Commission."       Policy

statements in the guidelines follow the mandate to the Commission

in 28 U.S.C. § 994(h) to "assure that the guidelines specify a

sentence to a term of imprisonment at or near the maximum term" for

career   offenders   as    defined   in     the   statute.      The   background

commentary to USSG § 4B1.1, the career criminal offender guideline,

makes clear that the guideline implements the directive of the

statute.   While not decisive, "[p]olicy statements issued by the

Sentencing Commission are, of course, pertinent to sentencing

determinations even under the now-advisory guidelines."                   United

States v. Martin, 520 F.3d 87, 93 (1st Cir. 2008) (citing 18 U.S.C.

§ 3553(a)(5)).    The Supreme Court has also emphasized the need for

sentencing courts to follow the factors outlined in § 3553(a). See

Kimbrough v. United States, 128 S.Ct. 558, 570 (2007) ("while [§

3553(a)] still requires a court to give respectful consideration to

the Guidelines,..., Booker permits the court to tailor the sentence

in light of other statutory concerns") (emphasis supplied).                 The


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court here properly assessed the 3553(a) factors, including the

Congressional intent evidenced in the policy statements, and it

also maintained that the Guideline range was advisory.

       The court's discussion with the parties about the appropriate

role of § 994(h) does not demonstrate that it failed to understand

its discretion, only that it sought guidance about how best to

incorporate the statutory directive in its application of the

advisory Guidelines.        The court made clear its own understanding

that    the   Guidelines     themselves     were     advisory   but     sought

clarification from counsel on whether he could "just ignore" the

language of § 994(h).       The parties replied that § 994(h) had to be

considered.      The court did just that, assessing it in the context

of the factors expressed in § 3553(a).            There was no error.

Reasonableness of the Sentence

       Lovely also claims that the district court "did not address

the complete disconnect" between his Career Offender predicates and

his    offense    conduct    and   failed    to     "discuss    the   special

circumstances of those crimes" in imposing the sentence.                 This

claim fails because the district court directly and reasonably

addressed Lovely's concerns at sentencing.              It noted first, in

response to the defense's argument for a departure on the grounds

that Lovely's risk of recidivism was low,

       I do not find departure appropriate. I don't find any
       overrepresentatation of criminal history here.    The
       recidivism that Mr. Lovely has shown and the violence
       that he has shown suggests that the criminal history

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     calculation is appropriate, and I don't find that the
     circumstances here do justify a [§] 5K2.0 departure.

The court was within its discretion to choose not to impose a

departure.    Jimenez-Beltre, 440 F.3d at 519.      The district court

similarly    considered   defendant's   arguments   that   Lovely   was

different because he dealt primarily marijuana, not crack, and

because he accepted responsibility for his conduct and cooperated

with authority.    The court concluded that these factors could be

appropriately addressed with the selection of a sentence within the

Guideline range.   The court's sentence was not unreasonable.

     Affirmed.




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