Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 09-1454

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ L. DÍAZ-FONTÁNEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Boudin, Stahl and Lipez, Circuit Judges.

Charles F. Willson and Nevins & Nevins LLP on brief for appellant. Nelson Pérez-Sosa, Assistant U.S. Attorney, Julia M. Meconiates, Assistant U.S. Attorney, and Rosa Emilia Rodriguez- Velez, United States Attorney, on brief for appellee.

December 18, 2009 Per Curiam. This is the defendant's appeal from his

resentencing on remand from this court. Because the district

court followed this court's remand instructions and did not

otherwise err or abuse its discretion in resentencing the

defendant, we affirm.

On the defendant's previous appeal, we held that,

under the guidelines, the defendant might be entitled to credit

for time spent in state custody. United States v. Díaz-

Fontánez, No. 06-2061,

(1st Cir. Aug. 8,

2008) (per curiam). In so holding, we relied on application

note 2 to USSG § 5G13, which directs the sentencing court to

"adjust for any term of imprisonment already served as a result

of the conduct taken into account in determining the sentence

for the instant offense." Id. However, because that

adjustment applies only to time not credited by the Bureau of

Prisons, id. at 10 (citing USSG § 5G1.3(b) as amended by

amendment 535 (effective Nov. 1, 1995)), a remand was required

to determine how much time the defendant had already served for

his related state firearms offense and how much of that time

would be credited to the defendant by the Bureau of Prisons

("BOP"). Id.

On remand, it was determined that the defendant had

already served his entire state sentence by the time his

federal sentence had been imposed and that the BOP would not

-2- credit any of that time, 69 months and 19 days, against his

federal sentence. Although the state sentence had thus been

fully discharged, and section 5G1.3 applies primarily to

undischarged state sentences, the guidelines nevertheless

permit the downward departure granted by the district court to

account for that time, see USSG § 5G1.3, comment. (n.4), as the

district court itself recognized.

However, there is no basis in section 5G1.3 for

crediting the time spent in custody after the defendant's state

firearms sentence was fully discharged but before he was

sentenced for the instant federal offense. The parties

disagree on whether the defendant was in state or federal

custody during that time. However, either way, that time would

not be creditable under section 5G1.3(b) because, once the

defendant completed serving his state firearms sentence, he was

not in custody for an offense "that was the basis for an

increase in the offense level for the instant offense," an

essential prerequisite for an adjustment under section

5G1.3(b). Regardless whether or not the district court had

discretion to vary downward to account for that time, it was

not required to do so in calculating the defendant's guideline

range. And we see no abuse of discretion in rejecting the

defendant's plea for a further credit on that basis.

-3- The only other purported error pressed on appeal is

the district court's failure to vary downward based on the

guidelines' relatively harsh treatment of crack--as compared to

powder--cocaine offenses. The short answer to that argument is

that while the district court may vary downward on that basis,

"'nothing . . . requires the district court to take [the

crack/powder sentencing] disparity into account in every crack

case.'" United States v. Gibbons,

(1st Cir.

2009) (quoting Díaz-Fontánez,

). Here, the

district court considered that and the other purportedly

mitigating factors identified by the defendant but nevertheless

concluded that the within-guidelines sentence imposed was no

greater than necessary to serve the purposes of sentencing set

forth in

(a). Given the violent nature of the

defendant's criminal record, which was not fully accounted for

in his criminal history score, and the fact that the court did

reduce the defendant's sentence by more than ten years from the

sentence previously imposed, we see no abuse of discretion in

declining to reduce it even further. "We will not disturb a

well-reasoned decision to give greater weight to particular

sentencing factors over others." Gibbons,

.

Consequently, the district court's judgment is

affirmed. See 1st Cir. R. 27.0(c).

-4-