Dinh

*250 MEMORANDUM *

The version of the statute governing resentencing in effect when Dinh committed his crimes limited sentences imposed upon revocation to those that were available “at the time of the initial sentencing.” 1 Dinh argues that this means his sentence could not, under any circumstances, exceed the guidelines range of 6-12 months calculated at his initial sentencing hearing. This argument, however, does not take into account our opinion in United States v. White. 2 In White, we held that “a district court is not absolutely limited by § 3565(b)’s language to the original sentencing range,” because “[t]he court can depart from the original range, provided that the facts warranting departure were available at the initial sentencing.”

The judge at resentencing could not, under the controlling version of the statute, use the defendant’s conduct that resulted in his probation violation to determine whether she had discretion to depart. She could, however, use the subsequent conduct to determine whether to exercise any discretion she would have had at the time of the initial sentencing. 4 The district court’s explanation of the departure at resentencing focused largely on…