                Not for Publication in West's Federal Reporter

           United States Court of Appeals
                       For the First Circuit

No. 11-2232

                             UNITED STATES,

                                Appellee,

                                     v.

                       DOUGLAS STEBBINS, JR.,

                        Defendant, Appellant.


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

         [Hon. John A. Woodcock, Jr., U.S. District Judge]


                                  Before

                       Howard, Circuit Judge,
                    Souter,* Associate Justice,
                     and Stahl, Circuit Judge.


     Matthew S. Erickson for appellant.
     Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty, United States Attorney, was on brief for
appellee.


                               May 1, 2013




     *
       Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
           SOUTER, Associate Justice.      On his plea of guilty to one

count of possession of a firearm by a convicted felon, the district

court sentenced appellant, Douglas Stebbins, Jr., to 120 months of

imprisonment.    We affirm the sentence.

                                    I

           During his plea colloquy, Stebbins gave only a limited

account of the conduct that led to his conviction.          He agreed that

on January 28, 2008, police officers stopped his car in Holden,

Massachusetts,   and that   when   they    searched   it,   they   found a

backpack with two firearms inside, a Walther .22 caliber pistol and

a Smith and Wesson .40 caliber pistol.      The Walther had been bought

by William Wheeler, who had also procured eight additional guns for

Stebbins, for each of which Stebbins had supplied the cash and paid

Wheeler a fee of $80 to $100.       Stebbins also agreed that he had

been convicted in 2005 of unlawful drug trafficking.

           Stebbins’s presentence report (PSR) indicated that he had

been at Wheeler’s side in purchasing six other firearms in addition

to the ones he acknowledged in the colloquy.       The report thus held

Stebbins accountable for sixteen weapons: the nine he admitted

getting with Wheeler, the six others, and the Smith and Wesson

pistol in Stebbins’s backpack.           The report summarized wiretap

evidence that Stebbins was a long-time supplier of firearms to drug

dealers.




                                   -2-
            In the PSR, the probation officer recommended a base

offense level of 20, see U.S.S.G. § 2K2.1(a)(4)(A) (2010), a four-

level increase because the crime involved at least ten firearms,

id. § 2K2.1(b)(1)(B), another four-level increase because Stebbins

engaged in the trafficking of firearms, id. § 2K2.1(b)(5), and a

further    four-level       increase    because   Stebbins          transferred      the

firearms   with   reason      to    believe   that     they   would     be    used   in

connection with another felony, id. § 2K2.1(b)(6)(B).                    The report

also   recommended      a    three-level      reduction       for    acceptance       of

responsibility under § 3E1.1.            Based on the recommended offense

level of 29 and the Criminal History Category of IV, the PSR

calculated an advisory guidelines range of 121-to-151 months of

imprisonment.     The statutory maximum sentence was 120 months.

            Stebbins’s       sole    objection    to    the    PSR     went   to     the

trafficking enhancement under § 2K2.1(b)(5), which requires the

defendant to have had reason to believe that the recipient of a

firearm intended to use it unlawfully.                 When Stebbins denied any

such knowledge, the Government offered evidence supporting pending

drug and firearm charges in Massachusetts, arising out of the

conduct charged here, to show that he knew perfectly well how the

firearms would be used.            In denying a motion to suppress in that

case, the Massachusetts Superior Court had found that Stebbins had

negotiated the exchange of firearms for cocaine or marijuana from

two individuals, Polydores and Kapulka, who were involved in other


                                        -3-
instances of drug trafficking.              See Govt’s Addendum 29-31.         At

sentencing,       the   district    court     admitted      into   evidence   the

Massachusetts       suppression     decision,        six    indictments    naming

Stebbins, Polydores, and Kapulka in drug and firearms conspiracies,

as well as other corroborative evidence.                   A federal agent also

testified that Wheeler had confessed to accepting money from

Stebbins to act as a straw purchaser.           Finally, in support of a new

argument that the acceptance-of-responsibility reduction should no

longer apply, the government offered a Maine complaint against

Stebbins    for     post-arrest     conduct     of    trafficking     in   prison

contraband, stemming from his attempts to smuggle drugs into prison

on the persons of his 6-year-old daughter and his girlfriend.

            The district court applied the § 2K2.1(b)(5) enhancement,

finding that Stebbins knew or had reason to believe that Polydores

or Kapulka intended to use the firearms illegally.                 The court also

agreed with the Government’s argument that the § 3E1.1 reduction

for acceptance of responsibility should not apply because it was

“beyond    argument”     that   Stebbins     had     failed   to   withdraw   from

criminal conduct.        J.A. 82.     With an offense-level of 32 and a

Criminal History Category of IV, Stebbins’s advisory sentencing

range was 168-to-210 months.

            Considering the 18 U.S.C. § 3553 factors, the court

explained that only three of the guns attributable to Stebbins had

been recovered, leaving society at serious risk from the thirteen.


                                      -4-
Although    Stebbins   had   a   tough    youth,   the   court   found   it

“disturbing” that he continued to engage in crime, even while

awaiting sentencing.     J.A. 83.        The court imposed a 120-month

sentence.

                                    II

            Stebbins raises four challenges to his sentence.

                                    A

            He first contends that the district court should have

reduced his sentence under U.S.S.G. § 5G1.3(b) to account for his

incarceration for 30 months on the related state drug and firearm

charges prior to sentencing in this case.          But we find no mention

of any such request in the district court record, and since

Stebbins does not argue here that he adequately preserved the

claim, see Reply Br. 1-3, our review is only for plain error, see

United States v. Olano, 507 U.S. 725, 732 (1993).          To prove plain

error, Stebbins bears the burden of showing an error that was

plain, Johnson v. United States, 520 U.S. 461, 467 (1997), and we

need not get to the point of subtlety to see that there was nothing

plain, even if we were to assume Stebbins is correct in claiming an

error in failing to apply § 5G1.3(b).        It provides that if

            a term of imprisonment resulted from another
            offense that is relevant conduct to the
            instant offense . . . and that was the basis
            for an increase in the offense level for the
            instant offense . . . the court shall adjust
            the sentence for any period of imprisonment
            already served on the undischarged term of
            imprisonment if the court determines that such

                                   -5-
           period of imprisonment will not be credited to
           the federal sentence by the Bureau of Prisons.

U.S.S.G. § 5G1.3(b).    Stebbins does not contest the Government’s

position   that   “§5G1.3   applies   only   when   the   defendant   being

sentenced on federal charges is already serving a sentence imposed

by another court.”    Reply Br. 1 (quoting Appellee’s Br. 31).          And

at the time of his sentencing in this case, Stebbins was merely

detained on pending state charges in Massachusetts; he was not

serving an undischarged “term of imprisonment.” Given the text of

the Guideline, it could not have been plainly erroneous for the

district court to refuse credit against his federal sentence for

Stebbins’s time served in pretrial detention in Massachusetts.           At

least one court of appeals had reached the same conclusion as the

district court did here.      See United States v. Rollins, 552 F.3d

739, 742 (8th Cir. 2009) (holding that § 5G1.3(b) “does not apply”

where the “district court sentenced [the defendant] before the

state court sentenced him”).

           Thus understood, the guideline speaks in harmony with the

provision of 18 U.S.C. § 3585(b), that “[a] defendant shall be

given credit toward the service of a term of imprisonment for any

time he has spent in official detention prior to the date the

sentence commences . . . that has not been credited against another

sentence.” While “§ 3585(b) does not authorize a district court to

compute the credit at sentencing,” United States v. Wilson, 503

U.S. 329, 334 (1992), the Bureau of Prisons has authority to

                                  -6-
provide it as an administrative remedy, see 28 C.F.R. § 542.10,

.11(a), subject to ultimate judicial review by habeas petition

under 28 U.S.C. § 2241, Rogers v. United States, 180 F.3d 349, 358

(1st Cir. 1999). We, of course, express no opinion on the question

of ultimate entitlement to administrative relief.

                                            B

             Stebbins next contests the district court’s denial of an

offense-level reduction for acceptance of responsibility under

§   3E1.1,   which       provides    for   a two-level       reduction   “[i]f   the

defendant clearly demonstrates acceptance of responsibility for his

offense”     and    an     additional      reduction   of     one   level   on   the

government’s       motion    if     the    defendant   has    “timely    notif[ied]

authorities of his intention to enter a plea of guilty.”                         The

“clear-error standard [governs review of] . . . a sentencing

court’s factbound determination that a defendant has not accepted

responsibility,”          United States v. Jordan, 549 F.3d 57, 60 (1st

Cir. 2008), and we will reverse only if we are “left with a

definite and firm conviction that a mistake has been committed,”

Brown v. Plata, 131 S. Ct 1910, 1930 (2011) (internal quotation

marks and citation omitted).

             Stebbins’s central contention is that the district court

erred in “weigh[ing] only Mr. Stebbins’[s] new State charges in

denying a reduction” and in failing to give proper weight to his

timely guilty plea, Appellant’s Br. 13, but the record belies the


                                           -7-
claim.       The district court noted that the PSR recommended the

reduction because Stebbins pleaded guilty and admitted that he

“screwed up,”       J.A. 80, and then explained how the evidence of the

drug-trafficking crime that Stebbins allegedly committed in prison

after the preparation of the PSR militated against the favorable

treatment:

              The defendant is here because he was engaged
              in a conspiracy to illegally possess firearms
              to trade them for drugs, and his possession of
              firearms to begin with was illegal. If he is
              still trafficking in drugs while in prison or
              attempting to traffic in drugs while in prison
              while awaiting sentence for a crime . . . the
              context of which is trafficking in drugs, it
              is apparent and I think beyond argument that
              he has not yet gotten the message about the
              need to stop dealing in drugs and engaging in
              criminal activity generally.

J.A. 82.

              Far   from   being   clearly    erroneous,    the   decision   was

perfectly consistent with our cases.            As then-Chief Judge Breyer

wrote,   a    district     court   “could    reasonably    conclude   that   the

[defendant’s] later conduct (such as his use of marijuana in

violation of bail conditions explicitly forbidding drug use) showed

that [he] lacked ‘authentic remorse.’”            United States v. O’Neil,

936 F.2d 599, 601 (1st Cir. 1991).                Likewise, in Jordan, we

explained that “[c]riminal conduct, whatever its nature, is a

powerful indicium of a lack of contrition.”               549 F.3d at 61.    The

reduction was properly denied.



                                       -8-
                                       C

            Stebbins’s third argument is that the district court

wrongly imposed the four-level enhancement authorized by U.S.S.G.

§ 2K2.1(b)(5), “[i]f the defendant engaged in the trafficking of

firearms.”      Application Note 13 to that provision states that

“Subsection (b)(5) applies . . . if the defendant . . . transferred

. . . firearms to another individual . . . and            . . . had reason to

believe that such conduct would result in the . . . transfer . . .

of a firearm to an individual . . . who intended to use or dispose

of the firearm unlawfully.”

            We have said before that a court need not find “specific

knowledge of any specific felonious plans” for the provision to

apply and that the enquiry into a defendant’s belief may rest on

“plausible inferences” from “circumstantial evidence.”                   United

States v. Marceau, 554 F.3d 24, 32 (1st Cir. 2009).                   Here, the

district    court    found    the   enhancement    in    order   because    “the

defendant knew or had reason to believe that Mr. Polydores and/or

Mr. Kapulka intended to dispose of the firearms illegally.”                 J.A.

70.    That finding stands unless Stebbins can show it was clear

error.    See Marceau, 554 F.3d at 29.

            The district court cited five reasons to conclude as it

did.     See J.A. 70-73.       First, the type of guns intended to be

transferred were easily concealed handguns, which are tools of the

drug   trade.       Second,   Stebbins     came   into   possession    of   them


                                      -9-
illegally through a straw buyer.          Third, the two firearms Stebbins

possessed were the latest in a series of guns illegally purchased

by Wheeler as a straw man.      Fourth, as shown by the findings of the

Massachusetts trial judge, Stebbins was involved in a conspiracy to

obtain     guns   in   Maine   and   to     exchange   them   for   drugs   in

Massachusetts.     Fifth, one of the firearms Stebbins had previously

sold to Polydores was in turn sold by him to a confidential

informant with its serial number removed, and Stebbins was arrested

with a grinder in his car.       The court found that Stebbins “had the

grinder in his motor vehicle to allow him to grind off the serial

numbers of the two firearms to avoid tracing to the Wheeler

purchase . . . and to the unraveling of the entire conspiracy.”

J.A. 73.

            Applying the enhancement was not clear error: by no means

are we “left with a definite and firm conviction” that the district

court was mistaken in finding that Stebbins had reason to believe

that Polydores or Kapulka would use the firearms illegally. Brown,

131 S. Ct at 1930 (internal quotation marks and citation omitted).

Indeed, the district court’s fourth or fifth reason alone would

have been sufficient, for the court explained, “the defendant was

planning to give these firearms to people he knew were drug

dealers,” which is “evidence that he knew or had reason to believe

that these recipients would improperly dispose of them.” J.A. 71.




                                     -10-
                                    D

            Finally,    Stebbins   argues    that     his   sentence    was

substantively unreasonable overall, a claim we review for abuse of

discretion.     See United States v. Tavares, 705 F.3d 4, 24 (1st Cir.

2013).     “A sentence is not substantively unreasonable merely

because the reviewing court would have sentenced the defendant

differently.”     United States v. Flores-Machicote, 706 F.3d 16, 25

(1st Cir. 2013). Rather, “the linchpin of a reasonable sentence is

a plausible sentencing rationale and a defensible result.”          United

States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008).

            Here, Stebbins’s advisory guidelines range was 168-to-210

months’ imprisonment, and he received a 120-month sentence.            To be

sure, his sentence fell below the guidelines range of necessity, as

Congress capped sentences for violating 18 U.S.C. § 922(g)(1) at

120 months.     See 18 U.S.C. § 924(a)(2).    But that constraint does

not tell a district court to ignore the Sentencing Commission’s

judgment in setting sentencing ranges that reflect the severity of

criminal conduct.      On the contrary, in deciding on a sentence, a

district court must take the applicable range into account, as well

as the considerations set out in 18 U.S.C. § 3553(a).

            The district court reasonably did so here.          The court

flagged Stebbins’s pernicious conduct in enlisting Wheeler, a drug

addict, to act as a straw in buying fifteen guns (all but three of

which    were   apparently   circulating)   for     Stebbins   to   possess


                                   -11-
unlawfully.   Since Stebbins disavowed any drug addiction of his

own, the implication was that his acquisition of the firearms was

driven by profit to be had from selling to violent criminals.

Added to all that, the district court noted Stebbins’s recent

recidivism and lack of contrition. All told, these facts justified

the weighty sentence.   There was no abuse of discretion.

                                III

          The sentence is affirmed.

It is so ordered.




                               -12-
