Eriс Lino was convicted of one count of conspiring to distribute between 500 grams and five kilograms of cocaine and one count of cocaine distribution, see 21 U.S.C. §§ 846 & 21 U.S.C. § 841(a)(1). He was sentenced to 144 months of imprisonment. Lino appeals only from the sentence, аnd we limit our background discussion accordingly.
At trial, the evidence demonstrated that Lino was part of a cocaine conspiracy that operated in southeastern Massachusetts between June 2001 and June 2003. The government presented testimony from three of Lino’s associates that during the life of the conspiracy each had provided Lino with transportation, so that he could sell cocaine. There was evidence that Lino conducted between nine and forty transactions per week. Onе witness testified to having helped Lino in over one hundred transactions and another stated that he had seen Lino participate in between fifty and one hundred cocaine deals. The government also introduced evidence of a series of cocaine sales that Lino made to undercover law enforcement officers.
Prior to trial, the government filed an information notifying Lino that it intended to seek an enhanced penalty based on his October 2001 Massachusetts conviction for possessiоn of marijuana and cocaine with the intent to distribute. See 21 U.S.C. § 841(b)(1)(B). Section 841(b)(1)(B) provides for a mandatory minimum sentence of five years for conspiring to distribute at least 500 grams and less than 5 kilograms of cocaine. But the penalty increases to a sentence betwеen ten years and life, if the conviction occurred “after a prior conviction for a felony drug offense has become final.” Lino objected to the government’s reliance on the Massachusetts conviction to trigger this enhancement on the ground that the Massachusetts conviction was “part and parcel” of the overarching conspiracy charged in the federal indictment and thus did not constitute the “distinct criminal episode” necessary to trigger the enhancement.
The presentence report (PSR) concluded that the enhancement applied. The PSR also relied on the Massachusetts drug conviction to calculate Lino’s criminal history, which, along with other unrelated convictions, placed Lino into criminal history category V. This history, coupled with an offense level of 30, resulted in an advisory guidelines sentencing range (GSR) of 151 to 181 months.
Lino pursued several objections to the PSR before the district court. He renewed his argument that the Massachusetts drug conviction did not trigger the § 841(b)(1)(B) enhancement. Linо also argued that, under U.S.S.G. § 5Gl.S(b), he was entitled to an adjustment in sentence for the time that he had already served on his undischarged thirty-month sentence for the Massachusetts drug conviction. 1 Finally, he requested a departure or variance from the GSR on the ground that thе GSR calculation overstated the seriousness of his criminal history.
The district court rejected Lino’s argument against applying the enhancement. The court ruled that, under prevailing precedent, Lino’s Massachusetts drug conviction constituted a prior felony drug conviction under § 841(b)(1)(B), even though the conduct underlying the prior conviction *43 occurred during the life of the conspiracy. The court also rejected Lino’s argument that his sentence should be reduced to account for the incarceration he sеrved for the Massachusetts drug conviction. Finally, the court concluded that a variance from the GSR was appropriate because the GSR overvalued the seriousness of Lino’s criminal history. The court imposed a sentence of 144 months of imprisonmеnt, seven months below the bottom of the GSR.
On appeal, Lino challenges the district court’s ruling that his Massachusetts drug conviction was “a prior felony drug conviction,” triggering the sentencing enhancement under § 841(b)(1)(B). As he argued before the district court, Lino contends that where, as here, the prior felony drug conviction was based on one of the transactions that comprised the overarching conspiracy there is no basis for an enhancement because the prior conviction does not constitute “a distinct criminal episode.” As this argument presents a question of statutory interpretation, we review it de novo.
See United States v. Leahy,
The interpretive question presented is whether a drug distribution felony that took place during the course of an ongoing conspiracy is a “prior felony drug conviction” for purposes of the § 841(b)(1)(B) enhancement where the conspiracy continued after the prior conviction. We considered this question in
United States v. De Jesus Mateo,
Thus, in De Jesus Mateo, the prior felony drug convictions, which occurred in 1991, were distinct criminal episodes because the evidence established the defendant’s participation in the conspiracy through 1997. The same analysis applies here. Lino pleaded guilty to drug distribution in Massachusetts state court in October 2001, but continued to engage in the drug conspiracy until his arrest in 2003. Accordingly, the district court correctly applied circuit precedent in concluding that Lino’s prior Massachusetts drug felony conviction triggered the § 841(b)(1)(B) enhancement.
Nevertheless, Lino argues that we should overrule
De Jesus Mateo.
As a panel of this court, absent unusual circumstances not present here, we may not do so.
See United States v. Allen,
Next, Lino contends that the district court erred in declining to credit him with time he had already served on his undischarged sentence for his Massachusetts drug conviction under U.S.S.G. § 5G1.3(b). Section 5G1.3(b) of the November 2003 Guidelines (the version under which Lino was sentenced) provides:
If ... a term of imprisonment resulted from another offense that is relevant сonduct to the instant offense of conviction ... and ... was the basis for an increase in the offense level for the instant offense under Chapter Two (Offense Conduct) or Chapter Three (Adjustments), the sentence for the instant offense shall be imposed as follоws: the court shall adjust the sentence for any period of imprisonment already served on the undischarged term of imprisonment if the court determined that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons.
Thus, § 5G1.3(b) provides for an adjustment in sentence only where the undischarged sentence was (1) for a crime that constitutes relevant conduct for the instant offense
and
(2) was the basis for an increase in the offense level for the instant offense under Chapters Two or Three of the Guidelines.
United States v. Lozano,
The second precondition is not met here. An adjustment under § 5G1.3(b) is not triggered “by the mere fact [that] the federal conspiracy charged encompassed a time period during which the state offense occurred,” where the state offense had no effect on the defendant’s offense level for the federal conviction.
United States v. Hurley,
Lino argues, however, that he is entitled to the adjustment because the Massachu
*45
setts drug offense was used to increase his criminal history category. In so doing, hе relies on
United States v. Caraballo,
But in 2003, the Sentencing Commission amended the Guidelines to resolve this ambiguity. See U.S.S.G. Appx. C, Amend. 660 (2003). As explained above, under the new version of § 5G1.3(b), the prior offense must have increased the defendant’s offense level for the instant offense under Chapter Two or Chapter Three of the Guidelines. The defendant’s criminal histоry category is provided for under Chapter Four of the Guidelines, and thus an increase in the criminal history category is not a basis for triggering a § 5G1.3(b) adjustment.
Finally, Lino contends that the sentence imposed was unreasonable because the district court failed to appreciate the advisory nature of the guidelines and did not consider whether to vary from the GSR to account for the time that he already served in Massachusetts custody for his prior drug conviction.
This argument fails. The district court stated several times throughоut the sentencing hearing that the guidelines were advisory. It also closely followed the procedure for imposing sentence under the advisory guidelines regime set forth in
United States v. Jimenez-Beltre,
The district court imposed a sentence below the GSR based on its conclusion that the GSR overstated the seriousness of Lino’s criminal history. Lino never argued to the district court that a larger variance wаs warranted to account for the time served in state custody; he made this argument only as it pertained to the calculation of the GSR. District judges are not mindreaders; the party seeking a variance must state clearly the reasons supporting the request. Id. Lino did not do so and thus cannot complain now.
Moreover, after the district court pronounced sentence, Lino’s counsel observed that the federal sentence of 144 months, added to the Massachusetts sentence of thirty-months, resulted in a total prison term near the top of the GSR. The district cоurt stated that it would not change the sentence on this basis. To the extent that this was intended to be an argument for a further variance from the GSR based on Lino’s sentence for the Massachusetts drug conviction — a doubtful proposition— the district court reasonаbly rejected it.
Affirmed.
Notes
. Lino’s sentence was undischarged at the time of his federal sentencing because he was not required to serve his state sentence until his probation was revoked as a result of the federal indictment.
. Lino also claims that the sentencing еnhancement could not be applied to him because the prior conviction was not pleaded in his indictment. This argument was not raised below and thus is subject to plain error review, which requires Lino to show a clear error that affected his substantial rights аnd that undermined the fairness integrity, or public reputation of the judicial proceeding.
See United States v. Gilman,
Lino further contends that the enhancement was erroneously applied becausе the judge improperly usurped the jury’s function of deciding whether there, in fact, had been a prior drug conviction and whether that conviction met the criteria for a "felony drug offense” and a "distinct criminal episode.” This argument too was not raised beforе the district court and is thus reviewed for plain error. We bypass the merits because Lino has made no argument that he was prejudiced by the judge making the findings relevant to the enhancement, and, moreover, the materials in the record concerning the prior conviction demonstrate that these issues were not open to any real dispute. Thus, relief under the plain error standard is unavailable.
See Johnson v. United States,