Filed: Aug. 24, 2001
Latest Update: Feb. 21, 2020
Summary: , Margaret E. Curran, United States Attorney, Donald C., Lockhart and Terrence P. Donnelly, Assistant United States, Attorneys, on brief for appellee.more deferential, such as a plainly unreasonable standard.The district court did not abuse its discretion.Darbys sentence is affirmed.
[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-2205
UNITED STATES,
Appellee,
v.
MATTHEW P. DARBY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.
Edward C. Roy, Jr., Esq. and Roy & Cook on brief for
appellant.
Margaret E. Curran, United States Attorney, Donald C.
Lockhart and Terrence P. Donnelly, Assistant United States
Attorneys, on brief for appellee.
August 22, 2001
Per Curiam. Matthew P. Darby appeals from the
sentence imposed following the revocation of his supervised
release. The single issue he raises is that the sentencing
court erred in applying the United States Sentencing
Guidelines by not reducing his “offense level” for his
acceptance of responsibility for the supervised release
violations.
This court has not definitively stated what
standard of review applies to its review of revocation
sentences. See United States v. Ramirez-Rivera, 241 F.3d 37,
40 n.4 (1st Cir. 2001). However, it has noted that all the
courts of appeal “agree upon a deferential standard of
appellate review.”
Id. To the extent that there is
variation among the circuit courts in the standards applied,
it is between an abuse of discretion standard and something
more deferential, such as a “plainly unreasonable” standard.
See
id. For purposes of this appeal, we leave the standard-
of-review issue unresolved and apply the less deferential
“abuse of discretion” standard.
“Violations of probation and supervised release are
not subject to the adjustments of offense level for which
provision is made in chapter three of the Sentencing
Guidelines. See ch. 7, pt. A. Indeed, an entirely separate
‘Revocation Table,’ rather than the generally applicable
‘Sentencing Table,’ is provided for violations of probation
and supervised release, and the Revocation Table does not
employ offense levels. See U.S.S.G. § 7 B1.4, p.s.” United
States v. Grasso, 6 F.3d 87, 88 (2d Cir. 1993). Therefore,
the district court did not abuse its discretion by denying
Darby a reduction in offense level for acceptance of
responsibility.
Darby’s brief also suggests that the district court
may have mistakenly believed that it lacked discretion to
depart downward from the range of imprisonment dictated by
the Revocation Table in chapter seven of the Sentencing
Guidelines. The record does not support that argument,
however. If the court had wanted to depart, but felt
constrained by the imprisonment range, then it would have
imposed a sentence at the bottom of that range: 8 months.
Instead, it imposed an 11-month sentence, in the middle of
the 8-to-14-month range. Nothing that the district court
said during the sentencing hearings suggested that it
believed it lacked authority to depart below that range.
Instead, the court emphasized that it was influenced in its
choice of a sentence by the need to drive home the
seriousness of Darby’s drug problem and his repeated
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violations of the law related thereto. The court expressly
found that the magistrate judge had taken Darby’s acceptance
of responsibility into account in arriving at a sentence
recommendation.
The district court did not abuse its discretion.
Darby’s sentence is affirmed. See Loc.R. 27(c).
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