US v. Ulysses McFarlin, Jr., No. 10-6963 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6963 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ULYSSES MCFARLIN, JR., Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, District Judge. (4:06-cr-00207-TLW-1) Submitted: February 14, 2011 Decided: March 11, 2011 Before NIEMEYER, KING, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Ulysses McFarlin, Jr., Appellant Pro Se. Arthur Bradley Parham, Assistant United States Attorney, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Ulysses McFarlin, Jr., appeals from the district court s order granting the Government s Fed. R. Crim. P. 35(b) motion for reduction of sentence and reducing McFarlin s sentence from 212 months in prison to 168 months based upon McFarlin s assistance. McFarlin asserts that the district court erred by considering his prior substantial assistance departure and by ignoring the Government s 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 reductions, to limit the departure. 351 F.3d 929, 932-33 (9th Cir. 2003). prior sentencing See United States v. Doe, In addition, the district court was not bound by the Government s recommendations. See United States v. Grant, __ F.3d __, 2011 WL 71475, *10 (6th Cir. Jan. 11, 2011). As such, even accepting the truth of McFarlin s allegations as to the district court s statements at the Rule 35(b) hearing, his claims of error are without merit. Accordingly, we affirm the district court s order and deny McFarlin s motion Government expense. facts and legal for preparation of a transcript at We dispense with oral argument because the contentions are 2 adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 3

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