Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
After revoking probation of defendant convicted of machine gun possession, the United States District Court for the Eastern District of Washington, Fred L. Van Sickle, J., imposed 24-month sentence. Defendant appealed. The Court of Appeals held that: (1) district court acted within its discretion in rejecting Sentencing Guidelines' non-binding policy statements, and (2) district court was not bound by its previous decision to depart downwardly from guidelines range.
Affirmed. Appeal from the United States District Court for the Eastern District of Washington Fred L. Van Sickle, District Judge, Presiding.
Before KLEINFELD, McKEOWN and FISHER, Circuit Judges.
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 9th Cir. R. 36-3.
Rodger Taylor appeals his 24-month sentence imposed upon revocation of probation, subsequent to his underlying sentence of five years of probation, following a conviction for machine gun possession, in violation of 18 USC § 922(o). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.
Taylor contends that the district court erred where it revoked probation and imposed a sentence in excess of 4-10 months, as provided in U.S. S.G. § 7B1.4, in light of Taylor's diminished capacity and his need to care for his developmentally challenged son. We find no abuse of discretion. See United States v. Tadeo, 222 F.3d 623, 625 (9th Cir.2000). Having explicitly acknowledged and considered the non-binding policy statements set forth in Chapter 7, the district court was well within its discretion to reject them in favor of a sentence authorized by the guidelines in effect at Taylor's initial sentencing. United States v. Olabanji, 268 F.3d 636, 2001 WL 1167572 at *2 (9th Cir. Oct.4, 2001).
The district court was not only well within its discretion to reject the Chapter 7 non-binding policy statements, it also was not bound by its previous decision to downwardly depart. United States v. Plunkett, 94 F.3d 517, 519 (9th Cir.1996) (as amended); United States v. Redmond, 69 F.3d 979, 982 (9th Cir.1995) (holding that 18 U.S.C. § 3565(a) authorizes district court to resentence defendant to any legal sentence that could have been imposed at original sentencing). The district court's subsequent imposition of a sentence less than that provided by the Federal Sentencing Guidelines therefore was proper.
AFFIRMED.