CHAPMAN, Circuit Judge:
This appeal presents the question of whether upon revocation of probation and resentencing a defendant may be sentenced to a term of active prison confinement in excess of the guideline range applicable to the defendant at the time of his initial sentencing. We find that on the present facts he may not be, and we vacate the sentence and remand for resentencing.
I
On August 24, 1989, appellant Alii was sentenced to a term of probation for three years following a guilty plea for breaking into a United States Post Office building. As a condition of probation, appellant was to serve six months in a community treatment center. The court recommended Troy House in Durham, North Carolina and Alii entered Troy House on September 21, 1990. It was a condition of probation that the appellant not possess any narcotic or controlled substance. At the time of this sentence, the guideline range for appellant’s offense, a Class D Felony with an offense level of 10 and a criminal history category of I, was six to twelve months.
Alii was scheduled to complete his six months in Troy House on March 20, 1990, but he was terminated from Troy House on February 5, 1990 because of numerous infractions and violations of the policies of that institution. By urinalysis on February 2, 1990 and March 5, 1990, he tested posi[996]*996tive for cocaine. He was returned to the district court on April 4, 1990 upon petition of the probation officer alleging a violation of the terms of his probation.
Following a hearing, at which appellant was represented by counsel, the court found that Alii had violated the terms and conditions of his probation. The court revoked his probation and sentenced him to a period of 15 months in the custody of the Bureau of Prisons, plus a term of three years supervised release upon his completion of the term in custody. Alii spent 138 days in Troy House, September 21, 1989 to February 5, 1990, and he spent 51 days in custody, March 15, 1989 to May 4, 1989, following his original arrest.
II
Appellant contends that the district court erred in its sentence of 15 months confinement following the revocation of his probation, because under 18 U.S.C. § 3565(a)(2)1 it was restricted to a sentence “that was available under subchapter A at the time of the initial sentence,” which was the sentence imposed on August 24, 1989. Sub-chapter A is obviously subchapter A of Chapter 227, of Title 18, United States Code, which is entitled “Sentences” and found in 18 U.S.C. §§ 3551-3559. Appellant claims that the guideline range was six to twelve months on August 24, 1989, the date he was originally sentenced, and because no evidence was presented on that date which would justify an upward departure from the guideline range, the maximum sentence upon revocation of Alli’s probation must be not more than twelve months.
Appellant argues another approach that would also result in a sentence of twelve months upon revocation of his probation. The appellant twice tested positive for cocaine prior to the revocation of his parole. This was in violation of the mandatory condition of his probation as set forth in the terms of his probation, as required by 18 U.S.C. § 3563(a)(3),2 and that he not possess an illegal controlled substance. Since appellant obviously violated this provision of his probation, he claims that the last sentence of § 3565(a) requires revocation of probation and a sentence of not less than one-third of the original sentence. His original sentence was three years probation, and one-third of this term would be one year, which is also the maximum provided by the guidelines.
The government argues that reapplication of the initial guideline range (six to twelve months) upon revocation of probation would be inappropriate, because the initial guideline did not take into account the probation violation. Therefore, since no guideline was in effect to cover a violation of probation, it is necessary to look to § 3553(b) and impose an appropriate sentence “having due regard for the purposes set forth in subsection (a)(2)”3 and that any [997]*997sentence within the statutory limit should not be disturbed unless the trial judge had abused his discretion. United States v. Schocket, 753 F.2d 336, 341 (4th Cir.1985).
There is a flaw in the government’s argument. The language of § 3565(a)(2) is clear. When probation given under a guideline sentence is revoked, the court is limited at resentencing to a sentence that was available at the time of the original sentence. There is no dispute that the guidelines were applicable at the time of the original sentence, and that the guideline range was six to twelve months. There was no evidence presented at the initial sentencing that would justify an upward departure. We reject the government’s argument that the only constraint upon the sentencing court was the statutory maximum of five years. This ignores the clear language of § 3565(a)(2) and also of § 3553(b) which requires that a court impose a sentence within the guideline range unless it finds aggravating or mitigating circumstances which have not adequately been taken into consideration by the Sentencing Commission in formulating the guidelines. The position of the government also ignores the U.S.S.G. policy statements found in Chapter Seven of U.S.S.C. Guidelines Manual.
Although the United States Sentencing Commission has not yet established guidelines for use in eases of violation of probation, it has issued a policy statement effective November 1, 19904 concerning revocation of probation. The Commission is authorized by 28 U.S.C. § 994(a)(3) to issue such policy statements, and it has stated that use of a policy statement will allow it to evaluate this complex area after it has had the benefit of additional time, experience, comment and use.
In considering different approaches to sanctioning violations of probation and supervised release, the Commission was faced with two choices. The first option was to consider the violation as a breach of trust, and the second was to sanction violators as if the conduct was being sentenced as new federal criminal conduct. The Commission adopted the breach of trust approach and stated:
While the nature of the conduct leading to the revocation would be considered in measuring the extent of the breach of trust, imposition of an appropriate punishment for any new criminal conduct would not be the primary goal of a revocation sentence. Instead, the sentence imposed upon revocation would be intended to sanction the violator for failing to abide by the conditions of the court ordered supervision, leaving the punishment for any new criminal conduct to the court responsible for imposing the sentence for that offense.
In further explanation of its use of this approach, the Commission stated:
Free access — add to your briefcase to read the full text and ask questions with AI
CHAPMAN, Circuit Judge:
This appeal presents the question of whether upon revocation of probation and resentencing a defendant may be sentenced to a term of active prison confinement in excess of the guideline range applicable to the defendant at the time of his initial sentencing. We find that on the present facts he may not be, and we vacate the sentence and remand for resentencing.
I
On August 24, 1989, appellant Alii was sentenced to a term of probation for three years following a guilty plea for breaking into a United States Post Office building. As a condition of probation, appellant was to serve six months in a community treatment center. The court recommended Troy House in Durham, North Carolina and Alii entered Troy House on September 21, 1990. It was a condition of probation that the appellant not possess any narcotic or controlled substance. At the time of this sentence, the guideline range for appellant’s offense, a Class D Felony with an offense level of 10 and a criminal history category of I, was six to twelve months.
Alii was scheduled to complete his six months in Troy House on March 20, 1990, but he was terminated from Troy House on February 5, 1990 because of numerous infractions and violations of the policies of that institution. By urinalysis on February 2, 1990 and March 5, 1990, he tested posi[996]*996tive for cocaine. He was returned to the district court on April 4, 1990 upon petition of the probation officer alleging a violation of the terms of his probation.
Following a hearing, at which appellant was represented by counsel, the court found that Alii had violated the terms and conditions of his probation. The court revoked his probation and sentenced him to a period of 15 months in the custody of the Bureau of Prisons, plus a term of three years supervised release upon his completion of the term in custody. Alii spent 138 days in Troy House, September 21, 1989 to February 5, 1990, and he spent 51 days in custody, March 15, 1989 to May 4, 1989, following his original arrest.
II
Appellant contends that the district court erred in its sentence of 15 months confinement following the revocation of his probation, because under 18 U.S.C. § 3565(a)(2)1 it was restricted to a sentence “that was available under subchapter A at the time of the initial sentence,” which was the sentence imposed on August 24, 1989. Sub-chapter A is obviously subchapter A of Chapter 227, of Title 18, United States Code, which is entitled “Sentences” and found in 18 U.S.C. §§ 3551-3559. Appellant claims that the guideline range was six to twelve months on August 24, 1989, the date he was originally sentenced, and because no evidence was presented on that date which would justify an upward departure from the guideline range, the maximum sentence upon revocation of Alli’s probation must be not more than twelve months.
Appellant argues another approach that would also result in a sentence of twelve months upon revocation of his probation. The appellant twice tested positive for cocaine prior to the revocation of his parole. This was in violation of the mandatory condition of his probation as set forth in the terms of his probation, as required by 18 U.S.C. § 3563(a)(3),2 and that he not possess an illegal controlled substance. Since appellant obviously violated this provision of his probation, he claims that the last sentence of § 3565(a) requires revocation of probation and a sentence of not less than one-third of the original sentence. His original sentence was three years probation, and one-third of this term would be one year, which is also the maximum provided by the guidelines.
The government argues that reapplication of the initial guideline range (six to twelve months) upon revocation of probation would be inappropriate, because the initial guideline did not take into account the probation violation. Therefore, since no guideline was in effect to cover a violation of probation, it is necessary to look to § 3553(b) and impose an appropriate sentence “having due regard for the purposes set forth in subsection (a)(2)”3 and that any [997]*997sentence within the statutory limit should not be disturbed unless the trial judge had abused his discretion. United States v. Schocket, 753 F.2d 336, 341 (4th Cir.1985).
There is a flaw in the government’s argument. The language of § 3565(a)(2) is clear. When probation given under a guideline sentence is revoked, the court is limited at resentencing to a sentence that was available at the time of the original sentence. There is no dispute that the guidelines were applicable at the time of the original sentence, and that the guideline range was six to twelve months. There was no evidence presented at the initial sentencing that would justify an upward departure. We reject the government’s argument that the only constraint upon the sentencing court was the statutory maximum of five years. This ignores the clear language of § 3565(a)(2) and also of § 3553(b) which requires that a court impose a sentence within the guideline range unless it finds aggravating or mitigating circumstances which have not adequately been taken into consideration by the Sentencing Commission in formulating the guidelines. The position of the government also ignores the U.S.S.G. policy statements found in Chapter Seven of U.S.S.C. Guidelines Manual.
Although the United States Sentencing Commission has not yet established guidelines for use in eases of violation of probation, it has issued a policy statement effective November 1, 19904 concerning revocation of probation. The Commission is authorized by 28 U.S.C. § 994(a)(3) to issue such policy statements, and it has stated that use of a policy statement will allow it to evaluate this complex area after it has had the benefit of additional time, experience, comment and use.
In considering different approaches to sanctioning violations of probation and supervised release, the Commission was faced with two choices. The first option was to consider the violation as a breach of trust, and the second was to sanction violators as if the conduct was being sentenced as new federal criminal conduct. The Commission adopted the breach of trust approach and stated:
While the nature of the conduct leading to the revocation would be considered in measuring the extent of the breach of trust, imposition of an appropriate punishment for any new criminal conduct would not be the primary goal of a revocation sentence. Instead, the sentence imposed upon revocation would be intended to sanction the violator for failing to abide by the conditions of the court ordered supervision, leaving the punishment for any new criminal conduct to the court responsible for imposing the sentence for that offense.
In further explanation of its use of this approach, the Commission stated:
[A]t revocation the court should sanction primarily the defendant’s breach of trust, while taking into account, to a limited degree, the seriousness of the underlying violation and the criminal history of the violator.
U.S. Sentencing Guidelines Manual, Chapter 7, Part A, Introduction 3(b).
In the policy statement the Commission set forth suggested classification of violations, rules for revocation of probation or supervised release and suggested terms of imprisonment. Section 7B1.1 provides:
Classification of Violations (Policy Statement)
(a) There are three grades of probation and supervised release violations:
[998]*998(1) Grade A Violations — conduct constituting (A) a federal, state, or local offense punishable by a term of imprisonment exceeding one year that (i) is a crime of violence, (ii) is a controlled substance offense, or (iii) involves possession of a firearm or destructive device of a type described in 26 U.S.C. § 5845(a); or (B) any other federal, state, or local offense punishable by a term of imprisonment exceeding twenty years;
(2) Grade B Violations — conduct constituting any other federal, state, or local offense punishable by a term of imprisonment exceeding one year;
(3) Grade C Violations — conduct constituting (A) a federal, state, or local offense punishable by a term of imprisonment of one year or less; or (B) a violation of any other condition of supervision.
The Application Note 3 to this section indicates that a “controlled substance offense” does not include simple possession of a controlled substance, and Application Note 5 to § 7B1.4 advises: “The Commission leaves to the court the determination of whether evidence of drug usage established solely by laboratory analysis constitutes ‘possession of a controlled substance’ as set forth in 18 U.S.C. §§ 3565(a) and 3583(g).”
From the information contained in the petition to revoke Alli’s probation, and the findings made by the court in ordering revocation, Alli’s violation of his probation would be considered a Grade C violation. Upon a finding of a Grade C violation, the district court may revoke probation or supervised release, or extend the term of probation or supervised release and/or modify the conditions of supervision. Section 7B1.3(a)(2).
In the policy statement, terms of imprisonment are covered by § 7B1.4, and a Grade C violation with a criminal history category of I has a range of three to nine months. Application Note 1 states that the criminal history category to be used under this section “is the category determined at the time the defendant originally was sentenced to the term of supervision. The criminal history category is not to be recalculated because the ranges set forth in the Revocation Table have been designed to take into account that the defendant violated supervision.”
All of the circuits which have considered this issue have concluded that the clear language of § 3565(a)(2) controls, and that upon resentencing, following revocation of probation, the court is limited to a sentence within the guidelines available at the time of the initial sentence. See United States v. Von Washington, 915 F.2d 390 (8th Cir.1990); United States v. Smith, 907 F.2d 133 (11th Cir.1990); and United States v. Foster, 904 F.2d 20 (9th Cir.1990). We find these cases persuasive.
The government argues that unless the court on resentencing is allowed to make an upward departure from the guidelines, a defendant’s misconduct in violating his probation will go unpunished. This argument was answered in Smith, supra:
This is not to say that post-sentencing conduct is irrelevant to probation revocation proceedings. Where revocation is not mandatory, the district court may certainly consider such conduct when deciding whether to revoke probation or to continue it, either on the same or different terms, see id. §§ 3563(c), 3565(a)(1). Furthermore, after revoking probation, the district court has discretion to impose a new sentence within the applicable range prescribed by law i.e., statute and guidelines, at the time of the initial sentencing — in this case, within a range of four to ten months. Common sense suggests that the court ought to be able to consider the conduct giving rise to the revocation (i.e., post-sentencing conduct) in deciding what sentence to select within the guideline range or even whether to depart from the guidelines, provided the conduct of justifying departure (i.e., pre-sentencing conduct upon which departure could have originally been based) was brought to the court’s attention at the initial sentencing hearing. Similarly, where a term of supervised release is discretionary, see Sentencing Guidelines § 5Dl.l(b), the court ought to be able to [999]*999consider the probation violation in deciding whether to impose such a term. And whether supervised release is discretionary or mandatory, see id. § 5Dl.l(a), the court should be able to consider the violation in determining the conditions, and, within the range prescribed by law, the duration of the term, see id. § 5D1.2.
Id. at 135-36.
The appellant’s conduct in violation of his probation results in his losing any credit for the 138 days he spent in community confinement at Troy House. Thus, the appellant’s violation of probation does not go unpunished. In the initial sentence he was given a term of three years probation, six months of which was to be served in Troy House. Upon revocation and resentencing he could be sentenced from six to twelve months and then placed on supervised release, but his period of incarceration could not exceed the 12 month limit of the guidelines.
We are persuaded to this result by the clear language of 18 U.S.C. § 3565(a)(1) and by policy statement of the U.S. Sentencing Commission as found in Chapter 7, U.S.S.C. Guidelines Manual (Nov.1990). Under the statute, Alii could be sentenced to a maximum of 12 months because this was the maximum applicable to him under the guidelines at the time of initial sentencing. Appellant is entitled to 51 days credit against his new sentence for the time he spent in custody, March 15, 1989 to May 4, 1989. Although his sentence would be less under the policy statement, such statement was not effective at the time of resentenc-ing, and we have referred to it only as an indication of the U.S. Sentencing Commission’s thinking in the area.
SENTENCE VACATED, REMANDED FOR RESENTENCING.