United States v. Fusco

Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

No. 97-1505

UNITED STATES,

Appellee,

v.

JOHN A. FUSCO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Torruella, Chief Judge,

Selya and Stahl, Circuit Judges.

Randy Olsen on brief for appellant.

Sheldon Whitehouse, United States Attorney, Margaret E. Curran

and Charles A. Tamuleviz, Assistant United States Attorneys, on brief

for appellee.

December 1, 1997

Per Curiam. Upon careful review, we reject appellant's

contention that, in sentencing him on revocation of

probation, the district court was bound by a downward

departure granted during appellant's original sentencing.

The plain language of the applicable statute, 18 U.S.C.

3565(a)(2), does not support that contention. See United

States v. Plunkett, 94 F.3d 517, 519 (9th Cir. 1996); United

States v. Redmond, 69 F.3d 979, 981-82 (9th Cir. 1995).

Appellant's reliance on United States v. Granderson, 511 U.S.

39, 57 n.15 (1994), is misplaced. See United States v. Byrd,

116 F.3d 770, 774 (5th Cir. 1997).

Affirmed. See 1st Cir. Loc. R. 27.1.

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