Not For Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals For the First Circuit

No. 05-2569

UNITED STATES OF AMERICA,

Appellee,

v.

STEVEN WASHINGTON,

Defendant, Appellant.

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

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

Before

Selya, Lynch and Howard, Circuit Judges.

James S. Hewes on brief for appellant. Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby, United States Attorney, on brief for appellee.

June 28, 2006 Per Curiam. Steven Washington, who pled guilty to

distributing heroin, in violation of

(a)(1), was

sentenced, after United States v. Booker,

(2005), to

168 months' imprisonment, the bottom of the applicable Guideline

range. The length of his sentence was based primarily on his

"career offender" status under USSG § 4B1.1(b)(C).1 In this appeal

from his sentence, Washington argues that his sentence is

unreasonably high in light of (i) the relatively small amount of

heroin involved (less than one gram) and (ii) the district court's

failure adequately to explain the sentence with respect to the

provisions of

(a), particularly the "parsimony"

provision. After carefully reviewing the record and the parties'

briefs, we conclude that the sentence is not unreasonable and was

adequately explained.

A sentencing judge is "not obliged to give a lower

sentence because of the quantity," United States v. Saez,

(1st Cir. 2006) (emphasis added), particularly where, as

here, other considerations weigh in the opposite direction, see

1 It is undisputed that Washington qualified for career offender status because he committed the instant offense when he was at least 18 years old (he was 33), the instant offense is a controlled substance offense (distribution of heroin), and he had at least two prior felony convictions of either a crime of violence or a controlled substance offense (one for a crime of violence-- robbery--and one for a controlled substance offense--manufacture, delivery, and possession of cocaine with intent to distribute). That status resulted in an offense level of 30, rather than 10; a criminal history category of VI rather than V; and a Guideline range of 168 to 210 months, rather than 21 to 27 months.

-2- generally United States v. Sagendorf,

, 518 n.2 (1st

Cir. 2006) (per curiam) (noting that "'the requirement that the

sentencing judge consider a . . . factor that may cut in a

defendant's favor does not bestow on the defendant an entitlement

to receive any particular "credit" under that factor'" (citation

omitted)). Here, the judge expressly acknowledged the severity of

the sentence in relation to the small quantity of drugs involved

and concluded that a long sentence was warranted in light of

Congress's express intent that career offenders be sentenced "to a

term of imprisonment at or near the maximum term authorized."

(h). Any resulting disproportionality between the

sentence and the drug quantity "is one that results from the policy

choices made by Congress and implemented by the Sentencing

Commission." United States v. Caraballo,

(1st

Cir. 2006) (per curiam). The district court therefore permissibly

declined to impose a below-Guidelines sentence on that basis. Id.;

cf. United States v. Jiménez-Beltre,

, 520 (1st Cir.

2006) (en banc) (finding it permissible to sentence defendant as a

career offender even if his prior offenses were relatively minor).

The court also tempered the consequences of Washington's

career offender status by sentencing him to the bottom of the

applicable Guideline range. The resulting fourteen-year sentence,

which the court characterized as "very severe," was still more than

-3- four years below the top of the applicable Guideline range and six

years below the twenty-year statutory maximum.

In rejecting Washington's plea for a below-Guidelines

sentence, the district court also expressly considered several

factors set forth in

(a). Specifically, the court

considered and rejected Washington's argument that a below-

Guidelines sentence was necessary to avoid unwarranted disparity

with the suspended sentence given to his accomplice after a state-

court conviction arising from the same incident. The court

reasoned that, even if the accomplice was more culpable (a point on

which the parties disagreed but which the court did not resolve),

Washington's harsher sentence was warranted by his more serious

criminal history.2 The district court further opined that the

disparity to be avoided was among sentences in the federal system,

not between state and federal sentences. Without deciding the

latter point, see United States v. Wilkerson,

, 10 n.**

(1st Cir. 2005), we agree with the district court that a sentencing

disparity explained by differences in defendants' criminal

histories or degrees of cooperation is not "unwarranted" within the

meaning of

(a)(6), see Saez,

.

The district court also expressly considered and rejected

Washington's arguments that the purposes of sentencing,

2 The record further indicates that the accomplice's sentence may have taken into account her cooperation with local law enforcement authorities.

-4- particularly the need to afford adequate deterrence and protect the

public from future crimes by this defendant,

(a)(2)(B),(C), could be served by a lesser sentence. In that

regard, the district court noted that despite the "very severe

sentences" that Washington received for his prior offenses, soon

after he was released from prison on those sentences he continued

to commit other serious crimes. For that reason, the court

concluded that an even more severe sentence was necessary this

time. The district court also took into account Washington's need

for educational and vocational training and substance abuse

treatment,

§ 3553(a)(2)(D), by encouraging him to "take

advantage of every program in prison" and recommending that he be

enrolled in a comprehensive drug treatment program.

Although the district court did not expressly cite the

"parsimony" provision,

(a), the above-described

comments evidence its consideration of the underlying principle

that a sentence should be sufficient but no higher than necessary

to meet the statutory goals. Nor is there any indication that the

sentence was designed to serve some other, impermissible, purpose.

See United States v. Scherrer,

(1st Cir. 2006) (en

banc). Accordingly, we find no error in the court's failure to

incant the parsimony provision per se. See United States v. Dixon,

No. 05-1559,

(1st Cir. May 26, 2006).

-5- Similarly, although the court did not expressly address

other potentially mitigating factors proffered by Washington at

sentencing--including his troubled childhood and his efforts at

post-conviction rehabilitation while in prison--we infer that the

court was unpersuaded that those factors outweighed the stated

grounds for declining to impose a below-Guidelines sentence. See

Scherrer,

. No further explanation was required.

Cf. United States v. Smith,

(1st Cir. 2006) (stating

that "'the farther the judge's sentence departs from the guidelines

sentence . . . the more compelling the justification . . . the

judge must offer'" (citation omitted)).

Accordingly, the sentence is affirmed.

-6-