United States v. Maxfield

61 F. App'x 464

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 17, 2003
• Docket: No. 02-50414 D.C. No. CR-99-00100-WDK-2
• Status: Published

Opinion

MEMORANDUM

**

Robert Edward Maxfield appeals his 18-month sentence imposed following the revocation of his supervised release. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm.

Maxfield contends that the district court erred by doubling the recommended guideline sentence based on facts proven by a preponderance of evidence as opposed to clear and convincing evidence. Maxfield’s reliance on United States v. Jordan, 256 F.3d 922, 928-29 (9th Cir.2001), does not disturb the Supreme Court’s holding in United States v. Johnson, 529 U.S. 694, 700, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000), that the preponderance of the evidence standard applies in revocation proceedings. Because the supervised release policy statements are recommendations and not mandatory sentences, the district court does not “depart” by imposing a sentence outside the suggested range. See 18 U.S.C. § 3583(e)(3); United States v. Tadeo, 222 F.3d 623, 626 (9th Cir.2000). Accordingly, the district court did not abuse its discretion by rejecting the policy statements in favor of a sentence authorized by § 3583(e)(3). See id. at 625.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.