Susan J. Thorn v. Amalgamated Transit

1 The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-1659
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Marlon D. Bell, also known as *
Marlon Bell, * [UNPUBLISHED]
*
Appellant. *
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Submitted: September 13, 2002
Filed: September 19, 2002
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Before BYE, BEAM, and MELLOY, Circuit Judges.
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PER CURIAM.
Marlon D. Bell appeals from the revocation of his supervised release and 36-
month prison sentence entered in the district court 1 following his arrest for aggravated
assault in Kansas City, Missouri, on November 9, 2001. Bell argues that the court
abused its discretion by departing upward from the recommended 6-12 month
sentencing range in U.S.S.G. § 7B1.4(a), and by failing to consider his claim of self-
defense.

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2 The court found, and the evidence showed, that Bell stabbed at least one
nightclub bouncer with a steak-knife blade and bit another person in the back before
declaring, "I killed you. I am HIV positive." (Sen. Tr. at 27).
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We find no abuse of discretion. We have consistently held that "the policy
statements in Chapter 7 of the Guidelines regarding supervised release violations are
advisory to, rather than binding on, the district court." United States v. Brown, 203
F.3d 557, 558 (8th Cir. 2000). And although a sentencing court is required to
consider the guidelines, "it is entirely free to impose a revocation sentence outside of
the policy statement's suggested range when, 'in its considered discretion,' such a
sentence is warranted." United States v. Holmes, 283 F.3d 966, 968 (8th Cir. 2002)
(quoting United States v. Carr, 66 F.3d 981, 984 (8th Cir. 1995)). Ultimately,
sentencing is governed by statute and, absent an abuse of discretion, "we will not
disturb a sentence imposed within the bounds of 18 U.S.C. § 3583(e), the statutory
provision detailing parameters for modification or revocation of supervised release."
Id. (citing United States v. Grimes, 54 F.3d 489, 492 (8th Cir. 1995)). Pursuant to
that provision, the district court properly considered the seriousness of Bell's offense,2
revoked the three-year supervised release based on a preponderance of evidence that
he had violated its terms, and sentenced him "to serve in prison all or part of the term
of supervised release." 18 U.S.C. § 3583(e)(3).
We likewise reject Bell's self-defense argument. When the district court is the
finder of fact, we must uphold its findings unless they are clearly erroneous. United
States v. R.E.J., 29 F.3d 375, 375 (8th Cir. 1994). In order to prevail on a self-
defense claim, a defendant must produce enough evidence to convince the fact finder
that "he used that amount of force that he reasonably believed was necessary to
protect himself" from the attack. United States v. Davis, 237 F.3d 942, 945 (8th Cir.
2001). The evidence presented by Bell at the sentencing hearing was insufficient to
satisfy this burden. Accordingly, we affirm the order of the district court.

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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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