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UNITED STATES of America, Plaintiff-Appellee, v. Ulysses MCFARLIN, Jr., Defendant-Appellant

United States Court of Appeals for the Fourth Circuit2011-03-11No. No. 10-6963
416 F. App'x 301

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Opinion

majority opinion

PER CURIAM:

Ulysses MeFarlin, Jr., appeals from the district courts order granting the Governments Fed.R.Crim.P. 35(b) motion for reduction of sentence and reducing McFaruns sentence from 212 months in prison to 168 months based upon McFarlins assistance. McFarlin asserts that the district court erred by considering his prior substantial assistance departure and by ignoring the Governments recommendation. We affirm.

While the sentencing court may not grant or augment a Rule 35(b) reduction based on factors other than assistance, it may consider other factors, including prior sentencing reductions, to limit the departure. See United States v. Doe, 351 F.3d 929, 932-33 (9th Cir.2003). In addition, the district court was not bound by the Governments recommendations. See United States v. Grant, 636 F.3d 803, 816-17 (6th Cir.2011). As such, even accepting the truth of McFarlins allegations as to the district courts statements at the Rule 35(b) hearing, his claims of error are without merit.

Accordingly, we affirm the district courts order and deny McFarlins motion for preparation of a transcript at Government expense. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED.