United States v. Frederick Nelson Jones , 972 F.2d 1345 ( 1992 )

972 F.2d 1345

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Frederick Nelson JONES, Defendant-Appellant,

No. 92-30064.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 24, 1992.*
Decided Aug. 27, 1992.

Before BRUNETTI, RYMER and KLEINFELD, Circuit Judges.

1

MEMORANDUM**

2

Frederick Nelson Jones appeals his sentence imposed under the United States Sentencing Guidelines after his probation was revoked. We dismiss the appeal.

3

Jones pleaded guilty to theft of government property in violation of 18 U.S.C. § 641 and was sentenced two years probation within a Guidelines range of zero to six months imprisonment. After his probation was revoked, he first was sentenced to 10 months imprisonment, 2 months less than the statutory maximum of 12 months. See U.S.S.G. § 5G.1(a) ("[w]here the statutorily authorized maximum sentence is less than the minimum of the applicable guideline range, the statutorily authorized maximum sentence shall be the guideline sentence"). The magistrate judge later granted Jones's Fed.R.Crim.P. 35(c) motion to correct the sentence, and resentenced him to six months imprisonment pursuant to United States v. Dixon, 952 F.2d 260, 261 (9th Cir.1991) (probation violator subject to sentencing within Guidelines range originally calculated for offense).

4

Jones contends that the magistrate judge erred by resentencing him at the top of the zero to six months range because his first sentence on probation revocation was two months less than the maximum.

5

We do not have jurisdiction to review the district court's discretionary decision to sentence at a particular place within the applicable range. United States v. Reed, 914 F.2d 1288, 1290 (9th Cir.1990). We therefore dismiss this appeal.

6

DISMISSED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3