

                    [Not for Publication]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.

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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

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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.

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(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.                           

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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

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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                              

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