United States v. Fusco

[NOT FOR PUBLICATION]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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