United States v. Moon Seals

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 17, 2025
• Docket: 24-1028
• Status: Published

Opinion

PUBLISH UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

FILED United States Court of Appeals Tenth Circuit

October 17, 2025

Christopher M. Wolpert Clerk of Court

UNITED STATES OF AMERICA, Plaintiff - Appellee,

Vv.

MALACHI MATHIAS MOON SEALS,

Defendant - Appellant.

No. 24-1028

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 1:22-CR-00245-CNS-1)

Jacob R. Rasch-Chabot, Assistant Federal Public Defender (Virginia L. Grady Federal Public Defender, with him on the briefs), Office of the Federal Public

Defender, Denver, Colorado, for Defendant-Appellant.

Jess D. Mekeel, Assistant United States Attorney (Matthew T. Kirsch, Acting United States Attorney, with him on the brief), Office of the United States Attorney, District of Colorado, Denver, Colorado, for Plaintiff-Appellee.

Before PHILLIPS, MURPHY, and EID, Circuit Judges.

PHILLIPS, Circuit Judge.

We again address the resentencing procedure that follows a revocation of

probation. See United States v. Moore, 30 F.4th 1021 (10th Cir. 2022) (Moore 1); United States v. Moore, 96 F.4th 1290 (10th Cir. 2024) (Moore I). Malachi Moon Seals makes two arguments. First, for preservation purposes, he argues that this court wrongly decided Moore J.' Second, he notes that the district court committed error that was plain by not employing the binding two-step framework set forth in Moore J, but he does not argue prejudice from that failure. Instead, he argues more specifically that the district court plainly erred by not applying a 0-month sentence at Moore /’s first step, and in doing so prejudiced him. But he fails to show that the district court erred, and plainly, by not applying the first step in that fashion. Thus, we do not reach the prejudice prong for his alleged plain error. We affirm. BACKGROUND

I. Underlying Offenses & Initial Sentencing

In November 2021, at age eighteen, Malachi Moon Seals began posting threats to governmental representatives and their families on their official websites. Here is a typical example:

I can’t wait to kill both of your families with the lowest levels of

honoree [sic] and respect just like you give to this country. I can’t

wait to shove my rusty machete into their tight little throats and twist like a fork in some pumkin mush.

' See In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) (per curiam) (“We cannot overrule the judgment of another panel of this court. We are bound by the precedent of prior panels absent en banc reconsideration or a superseding contrary decision by the Supreme Court.”).

2 R. vol. II, at 11 (citation modified). In other postings, he graphically threatened torture, rape, and murder. The threats frightened some recipients into requesting security details.

A grand jury indicted Moon Seals on six class-C-felony counts charging him with influencing or retaliating against a federal official by threatening that person or family members in violation of 18 U.S.C. § 115(a)(1), and six class- D-felony counts of threatening these persons by using interstate communication in violation of 18 U.S.C. § 875(c). Moon Seals pleaded guilty to all twelve counts.

In its presentence report, the probation office calculated an advisory guidelines range of 33 to 41 months of imprisonment. This resulted from an undisputed total offense level of 20 and criminal-history category of I. That left Moon Seals outside of Zone A of the sentencing table and thus ineligible for probation. See U.S.S.G. § 5B1.1(a)(1).* But after Booker and Gall,? courts may vary from an advisory sentencing range if doing so is procedurally and

substantively reasonable. And aware of this, the parties and probation office

? The guidelines authorize a “straight” probationary sentence only when the advisory guideline range is 0 to 6 months of imprisonment, which falls in Zone A of the Sentencing Table. See U.S.S.G. § 5B1.1(a)(1). Straight probation does not include a “period of community confinement, home detention, or intermittent confinement.” /d. § 5B1.1 cmt. n.1(A). A probation sentence including those periods is available to offenders whose advisory guideline range is in Zone B. See § 5B1.1(a)(2).

> United States v. Booker, 543 U.S. 220, 226-27 (2005); Gall v. United States, 552 U.S. 38, 46 (2007).

Oo advocated for probation. But nowhere did they—or later, did the district court—ever mention varying downward to Zone A of the sentencing table.

In making its pitch for a sentence of probation, the government acknowledged that such a sentence would be “unusual,” but it assured the district court that it still was “willing to go out on [a] limb” for Moon Seals. R. vol. III, at 158. The district court was wary, concerned not just about Moon Seals’s threats but also about the “severe psychological distress” it saw exhibited in them. /d. at 163. Even so, “with severe hesitation,” the court relented and sentenced Moon Seals to five years’ probation for his twelve convictions. /d. at 164. The court imposed special conditions of probation as “100 percent necessary[.]” /d. at 168. The court warned Moon Seals that if he made more threats, “[t]he next step” would be revocation of probation and incarceration. /d. at 164, 183.

II. Probation Violations & Revocation

Moon Seals immediately began serving his sentence of probation. But within two weeks, the probation office petitioned the court for his arrest. It alleged that just days after his sentencing, Moon Seals resumed posting threats. It quoted this newly made threat to a former federal intelligence officer:

[Name] IS A CRIME AGAINST HUMANITY AND WILL DIE A

HORRIBLE DEATH LIKE THE PATHETIC FUCKING N[***]ER CH[**]K CAMEL TOED SAND EATING SHIT MONKEY HE R. vol. I, at 39-40. For this conduct, the petition alleged two violations of Moon Seals’s conditions of probation.

At the hearing on the petition, Moon Seals admitted the two alleged violations. The district court chose to revoke Moon Seals’s sentence of probation.

III. Resentencing

After revoking probation, the district court needed (1) to “resentence” Moon Seals by 18 U.S.C. §§ 3553(a)(4)(A) and 3565(a)(2), and (2) to sanction him for violating his conditions of probation by 18 U.S.C. § 3553(a)(4)(B) and Chapter 7 of the sentencing guidelines. Moore J, 30 F.4th at 1026-27.

At the sentencing hearing, the court asked to “hear from the parties as to the applicable guideline range .. . for [resentencing.]” R. vol. III, at 9. By then, the probation office had already recommended sentencing Moon Seals to the low end of the original advisory guideline range of 33 to 41 months of imprisonment. The probation office never mentioned Moore IJ or its two-step framework.’ Defense counsel asked that the court start with the Chapter 7 range of 3 to 9 months but volunteered that the court could sentence within 33 to 41

months, or even up to the statutory maximum of 120 months. The government

4 The probation office instead cited an out-of-date case, United States v. Maltais, 961 F.2d 1485, 1487 (10th Cir. 1992), in which this court required exclusive application of the original guideline range for the underlying offenses at revocation. Notably, this being a 1992 decision, it obviously did not consider the 1994 statutory amendments relied on in Moore J.

5 “agree[d] with a lot of .. . [defense counsel’s] positions on the sentences that are available to the Court today.” /d. at 27. But it supported the probation office’s recommendation of 33 months of imprisonment.

When addressing the court, Moon Seals’s counsel referenced Moore / but asserted a belief that its holding would likely be reversed by a pending appeal of the sentence imposed on remand. The government had mentioned Moore / in its sentencing memoranda, but it didn’t defend Moore J or apply its framework in making its sentencing recommendation. Though alerted to Moore J, the district court paid it no heed.

Instead, the district court went its own way. It rejected Moon Seals’s argument that Chapter 7 governed exclusively, saying that this approach would give Moon Seals an “unwarranted benefit” for obtaining and violating probation. /d. at 38. Ignoring Moore I’s framework, the court pronounced that “[t]o be sure, it appears that I could use either range, and Chapter 7 in some senses may make sense.” /d. The court said that it was tempted “to just rely on the statutory maximum range and work within that range.” /d.

Ultimately, however, the court declined to apply Chapter 7 at all, instead

“stick[ing] to the 33 to 41 months under the original offenses” set in Chapter 5. Id. The district court procedurally erred—and plainly—in disregarding Moore I’s binding framework. ° DISCUSSION

We review sentences imposed by the district court for procedural and substantive reasonableness. United States v. Cookson, 922 F.3d 1079, 1091 (10th Cir. 2019). Moon Seals argues that his sentence was procedurally unreasonable. Whether a sentence is procedurally reasonable depends on “whether the district court committed any error in calculating or explaining the sentence.” /d. (quoting United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009)). Moon Seals argues that the district court procedurally erred by not applying Moore I’s two-step framework and that had it done so it would have needed to impose a 0-month sentence at step one. Then, contending that the sentence he received was greater than his likely sentence had the district court imposed 0 months at step one, he claims prejudice at the third prong of the plain-error analysis.

Because Moore / is central to this appeal, we begin by reviewing that

decision and its bases. After doing so, we consider and reject Moon Seals’s

> At the hearing, defense counsel contended that Moore I’s two-step procedure was dicta. But in Moore II, we later rejected that argument, concluding that the “two-step process is not dicta but is, instead, binding Tenth Circuit precedent.” Moore IJ, 96 F.4th at 1301. argument that the district court committed plain error by not imposing a 0- month sentence at the first step of the Moore J framework. I. Moore I and Its Binding Framework

In Moore I, we considered an appeal arising after the district court imposed an unusual sentence of probation and later revoked it. See Moore I, 30 F.4th at 1023-24. The defendant had pleaded guilty to a Hobbs Act robbery during which he had pointed a firearm at a liquor-store clerk. With an agreed advisory sentencing range of 51 to 63 months of imprisonment, the government sought a low-end sentence of 51 months. /d. at 1022-23. The defendant asked for time served and three years of supervised release. /d. at 1023. The district court gave the defendant a choice—(1) an immediate 51-month sentence as calculated after the court had already fully considered the PSR, or (2) a six- month trial period of release followed by a three-year term of probation if the six months went well. /d. The defendant chose the sentence of probation, despite the court’s warning him that it held a “big hammer” and that it would sentence him to at least 84 months if he violated probation. /d. When the defendant did violate, the court revoked his probation and resentenced him to 84 months. /d. at 1023-24.

We reversed. First, we held that sentencing after revoking probation requires two steps: (1) the district court must “resentence” the defendant for his underlying offense as required by 18 U.S.C. §§ 3553(a)(4)(A) and 3565(a)(2),

and (2) the district court must sanction the defendant for violating his

8 conditions of probation as required by 18 U.S.C. § 3553(a)(4)(B) and Chapter 7 of the sentencing guidelines. /d. at 1026-27. Second, we ruled that the district court, after fully reviewing the PSR and announcing the precise 51-month sentence it felt that the PSR justified, had locked itself into 51 months as the appropriate term of imprisonment for the offense of conviction and its underlying conduct. /d. at 1026. And third, we noted that after revoking probation, the district court had never identified what portion of its 84-month sentence was for the original offense and what portion was for the probation violation. /d. at 1027. Because the total sentence happened to be the exact 84 months the district court had promised as the minimum if the defendant violated probation, we concluded that the court had erred “by employing [a] sentence-in-advance system.” /d. at 1025. The problem was that the court could not foreordain and punish probation-violation conduct before it occurred. Also, we stressed that the court had procedurally erred by not identifying what portion of the 84 months was for the original offense versus the probation violation. /d. at 1027. That deprived us of an ability to meet our duty to review each piece for substantive reasonableness. /d.

The defendant sought neither panel rehearing nor en banc review. Instead, he returned to the district court for resentencing, still not objecting to Moore I’s two-step framework. But after the resentencing, he again appealed and moved for en banc review in challenging Moore J. We denied his motion.

United States v. Moore, 119 F.4th 1232 (10th Cir. 2024) (mem.).

9 II. Moon Seals’s Arguments

On appeal, Moon Seals makes two arguments. First, he contends that the district court plainly erred in crafting his post-revocation sentence. Second, for preservation purposes, he comprehensively argues that Moore J was wrongly decided.

A. Argument One: The District Court Plainly Erred by Imposing a Procedurally Unreasonable Sentence of 36 Months of Imprisonment

On appeal, Moon Seals begins with an obvious point—the district court

committed error that was plain by not employing Moore /’s binding framework in imposing its sentence.° But he does not argue that this general plain error prejudiced him at prong three of the plain-error analysis. Presumably, he acknowledges that he could not show a reasonable probability of a different outcome to his 36-month sentence when the advisory range for his offenses of

conviction was 33 to 41 months and his sanction range for his probation

violations was 3 to 9 months. Under a straight application of Moore J, his 36-

© Moon Seals acknowledges that he encouraged the district court to disregard Moore I’s two-step procedure. Because he did so, the government in its appellate briefing claimed invited error. But at oral argument the government conceded that this case “rises and falls” on plain-error review. Oral Arg. at 27:25-27:40. So we don’t further address the invited-error doctrine. Additionally, we disagree with the government’s contention that Moon Seals’s general appeal waiver in his plea agreement waived his appellate challenges to his post-revocation sentence. See United States v. Porter, 905 F.3d 1175, 1179 (10th Cir. 2018).

10 month sentence would fall within the Chapter 5 guideline range used by the district court.’

Instead, Moon Seals makes a more specific plain-error argument. He argues not just that the district court plainly erred by not applying Moore I’s two-step framework but that its sentence would be plain error even under Moore I’s framework. He contends that the district court at step one of Moore I’s framework plainly erred by not imposing a 0-month sentence for his underlying offenses of conviction.*®

Moon Seals supports his view with his own novel theory—that a 0-month sentence applies when at the original sentencing hearing a district court fails to provide an “alternative sentence” that will later apply if it revokes the sentence

of probation. Op. Br. at 16. For support, he extrapolates from Moore J, in which

’ Though it may be a coincidence, we note that the 36-month sentence equals the total of the low ends of the Chapters 5 and 7 sentencing ranges—33 and 3 months. The government has not appealed what amounts to the district court’s 0-month sentence under Chapter 7 for Moon Seals’s probation violation.

® Moon Seals’s argument gets loose here. He explicitly briefs how the district court’s not employing Moore / is error and plain error. But for the district court’s not calculating and applying a 0-month sentence at Moore I’s first step, he jumps to the prejudice prong of the plain-error analysis without specifically analyzing the first two prongs of the plain-error standard. From our vantage point, he appears to be trying to incorporate the district court’s general plain error to cover the needed plain error for not applying a 0-month sentence. If not, we see him as sidestepping the need to show plain error for not calculating a 0-month sentence at Moore I’s first step. The closest he comes to doing so is when he declares that “it stands to reason” that Moore J compels a finding that the district court locked itself into a 0-month sentence. See Op. Br. at 8. But as described in this opinion, Moon Seals has not shown error or plain error in this regard.

11 the district court happened to offer a low-end sentence of 51 months for the defendant’s Hobbs Act conviction in lieu of a probation sentence. /d. (citing Moore I, 30 F.4th at 1026).

We disagree that the district court plainly erred by not imposing a 0- month sentence at Moore I’s step one using Moon Seals’s “alternative sentence” theory. First, we see no reason why it should matter when a district court announces a prison sentence for the offenses of conviction, whether before or after a probation revocation. Moreover, Moore J does not contemplate Moon Seals’s “alternative sentence” theory. Simply put, Moore J doesn’t contain what Moon Seals now tries to pull from it—a rule stating that absent the district court’s adoption of a low-end sentence of 51 months for the offenses of conviction, the district court would be bound to impose a 0-month sentence for the original crimes after the defendant violated probation.

Second, Moon Seals’s argument that the district court locked itself into a 0-month sentence for his offenses of conviction ignores important considerations. For instance, the district court knew that it was imposing a conditional sentence of probation and contemplated imposing prison time for the offenses of conviction if Moon Seals violated his probation conditions (as was also the case with the district court in Moore /). Had the district court wanted to give Moon Seals a 0-month sentence, it could have done so and followed it with a term of supervised release. Further, even if the district court

had somehow inadvertently locked itself into a Zone A sentence by varying to

12 probation, the sentencing range would be 0 to 6 months, not an ironclad 0 months.

Third, Moon Seals’s argument that the district court locked itself into a 0-month sentence for his offenses of conviction makes little sense. As the district court observed, using the Chapter 7 sentencing range alone would have given Moon Seals an unwarranted benefit for obtaining and violating probation. The sanction for violating probation is one that is in addition to the resentencing prison time for the underlying offenses. See United States v. Shaefer, 120 F.3d 505, 507 (4th Cir. 1997) (Wilkins, J.) (a “resentencing” under § 3565(a)(2) “plainly permits a district court to begin the sentencing process anew and to impose any sentence appropriate under the provisions of subchapter A, i.e., one that satisfies statutory and guideline requirements.”

(emphasis added)).”

° Though Moon Seals says that no court has ever employed a two-step framework as Moore J does, he does not acknowledge Judge Wilkins’s above comment in Shaefer. And our research shows that most probation-revocation resentencings have contained at best a cursory analysis on the sentencing steps. See United States v. Huffman, No. 22-4165, 2023 WL 4700644, at *2 (4th Cir. July 24, 2023) (unpublished) (per curiam); United States v. Vanover, 831 F. App’x 71, 74 (4th Cir. 2020); United States v. Arnold, 810 F. App’x 337 (Sth Cir. 2020) (per curiam); United States v. Buckholt, 799 F. App’x 252, 253 (Sth Cir. 2020); United States v. Spierdowis, 805 F. App’x 1025, 1027 n.2, 1029 (11th Cir. 2020) (per curiam); United States v. Randall, 796 F. App’x 916, 917 (8th Cir. 2019) (per curiam); United States v. Quiroz-Leon, 749 F. App’x 584 (9th Cir. 2019); United States v. Michael, 909 F.3d 990, 993-94 (8th Cir. 2018) (per curiam); United States v. Mewhinney, 643 F. App’x 803, 805 (10th Cir. 2016); United States v. Lutui, 531 F. App’x 812, 813 (9th Cir. 2013); United States v. Silva, 443 F.3d 795, 799 (11th Cir. 2006) (per curiam); United States

(footnote continued) Fourth, at the second prong of the plain-error analysis, Moon Seals must show that his asserted error is plain. To do so, he depends exclusively on Moore I, but, as stated, Moore J does not announce or even support his “alternative sentence” theory. His asserted error is not plain. His failure to establish either prong one or two of the plain-error standard defeats his procedural-unreasonableness argument.

B. Argument Two: Moore I Was Wrongly Decided

Next, Moon Seals argues that Moore I was wrongly decided. But he makes this argument for preservation purposes. Accordingly, at this time, we do not address it further.

CONCLUSION Exercising our jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a), we affirm the post-revocation sentence.

v. Garfinkle, 162 F.3d 1174 (10th Cir. 1998) (unpublished table opinion). None thoroughly discuss the legislative history that we considered in Moore J. Even the more analyzed cases do not delve into the legislative history in detail. See United States v. Michael, 12 F.4th 858, 860-61 (8th Cir. 2021); United States v. Vixamar, 679 F.3d 22, 32 (1st Cir. 2012); United States v. Kippers, 685 F.3d 491, 496-501 (Sth Cir. 2012); United States v. Verkhoglyad, 516 F.3d 122, 130 (2d Cir. 2008); United States v. Cook, 291 F.3d 1297, 1299-1302 (11th Cir. 2002); United States v. Plunkett, 94 F.3d 517, 517-19 (9th Cir. 1996); see also United States v. Schwegel, 126 F.3d 551, 553-55 (3d Cir. 1997) (interpreting the Wilkins-Thurmond congressional record in context of supervised-release revocation).

14 24-1028, United States v. Moon Seals MURPHY, J., concurring in the result.

I agree Moon Seals failed to demonstrate the district court plainly erred when it refused to impose a zero-month sentence at the first step of Moore I’s framework. Specifically, I agree the district court committed an error that is plain when it failed to apply Moore I’s two-step sentencing procedure. Nevertheless, Moon Seals failed to show the error affected his substantial rights. To do so, Moon Seals asserts “his own novel theory—that a 0-month sentence applies when at the original sentencing hearing a district court fails to provide an ‘alternative sentence’ that will later apply if it revokes the sentence of probation.” Majority Op. at 11. The Majority Opinion rightly rejects this “novel claim”; Moore J cannot reasonably be read as standing for such a counterintuitive and unworkable rule. Because the district court was not locked into a zero-month sentence at the first step of Moore J, the imposition of a within-Guidelines sentence at that step did not affect Moon Seals’s substantial rights. Instead, Moon Seals obtained an unwatranted benefit when the district court erroneously failed to impose a sentence for the probation violation at Moore I’s second step. But cf’ Majority Op. at 11 n.7 (noting the government did not bring a cross appeal for “what amounts to the district court’s 0-month

sentence under Chapter 7 for Moon Seals’s probation violation”). 24-1028, United States v. Moon Seals PHILLIPS, J., concurring in the opinion.

Though Moon Seals challenges Moore I as wrongly decided, he acknowledges that the decision binds this panel. He raises his challenge to preserve it for further review. I write separately to address Moon Seals’s comprehensive arguments against Moore / in view of the likelihood of further challenges built on doubts expressed by a different panel in Moore IJ, 96 F.4th at 1302 (noting that if it were deciding the correctness of the two-step sentencing procedure “as one of first impression,” the panel “might very well conclude” that “the relevant statutes and Sentencing Guidelines call for a different result”). I support Moore J by reviewing the lead-up to the relevant statutory changes it interpreted and then examine and reject Moon Seals’s arguments calling for a different interpretation.

I. Events and Law Leading Up to Moore I

In 1984, Congress enacted the Sentencing Reform Act, Pub. L. No. 98- 473, § 211, 98 Stat. 1987 (codified as amended at 18 U.S.C. § 3551 et seq.). It sought to make federal sentencing more uniform and proportional. See U.S.S.G. ch.1, pt. A, 1.3. Under the Act, probation became its own sentence, though a conditional sentence subject to revocation. See 18 U.S.C. § 3564 (1984).

The first seismic event in applying the post-1984 statutes governing

probation revocations came with United States v. Smith, 907 F.2d 133 (11th Cir. 1990).! There, a defendant pleaded guilty to possessing counterfeit currency in violation of 18 U.S.C. § 472. /d. at 134. Because his offense occurred after November 1, 1987, that version of the sentencing guidelines applied at sentencing. For the defendant’s offense, the applicable guideline provided a base offense level of 9. Jd. Two more offense levels were added for the defendant’s aggravating role as an organizer of the “two-person scheme to pass counterfeit bills[.]” /d. Because he timely pleaded guilty, the defendant received a 2-level reduction for acceptance of responsibility. All told, that left a total offense level of 9 and a criminal-history category of I, which resulted in a then-mandatory guideline range of 4 to 10 months. /d. Because the four- month minimum term did not exceed six months, the defendant was eligible for a sentence of probation with a term of community confinement. /d. The court imposed a sentence of three years of probation, with four months to be spent at a community treatment center. /d. As a condition of probation, the court required that the defendant remain drug-free. /d.

While at the community center, the defendant failed two drug tests. /d. For that misconduct, the probation office petitioned the court to revoke the sentence of probation. /d. In revoking probation, the court observed that the

sentencing guidelines gave it no direction on how to resentence after revocation

' Superseded by statute as recognized in United States v. Cook, 291 F.3d 1297, 1300 n.3 (11th Cir. 2002). of probation.” Jd. Left on its own, the court defaulted to “the statutory maximum for the underlying offense[.]” /d. (citation modified). After that, the court “implicitly adopted the probation officer’s recommendation and imposed a prison term of eighteen months,” the top end of the mandatory guideline range after the probation officer updated its recommendation to add four more offense levels for the defendant’s post-sentencing possession of controlled substances in violation of his probation conditions. /d. at 134-35. The defendant appealed the district court’s 18-month sentence.

The Eleventh Circuit reversed. In a “case of first impression,” it determined that the district court had erred in two ways: “(1) by holding that the guidelines do not apply to probation revocation proceedings and (2) by imposing a prison sentence (eighteen months) that exceeded the one originally available under the guidelines at the time of initial sentencing (four to ten months).” /d. at 135. In reaching this result, the court relied on the 1988 version of 18 U.S.C. § 3565, quoting it as follows:

(a) Continuation or Revocation. If the defendant violates a condition

of probation at any time prior to the expiration or termination of the term of probation, the court may, after a hearing pursuant to Rule 32.1 of the Federal Rules of Criminal Procedure, and after

considering the factors set forth in [18 U.S.C.] section 3553(a) to the extent they are applicable-

? The initial 1987 sentencing guidelines contained a brief Chapter 7 pertaining to probation and supervised-release violations and sanctions. See U.S.S.G. app. C, amend. 362. On November 1, 1990, a more robust Chapter 7 became effective, but which was after the Smith sentencing hearing. /d.

3 (1)continue him on probation, with or without extending the term [or] modifying or enlarging the conditions; or

(2)revoke the sentence of probation and impose any other

sentence that was available under subchapter A [18 U.S.C.

99 3551-3559] at the time of the initial sentencing. Id. From the language it italicized, the Eleventh Circuit concluded that “the district court was required to apply the guidelines” and that the original guidelines calculation “delimit[ed] the sentences that were then available.” /d. That was so because the probation-violating conduct necessarily occurred after the original sentencing hearing. /d. With that, the court concluded that “no upward adjustment in [the defendant’s] total offense level could have been based on that conduct, and the longer sentence of imprisonment [anything beyond the ten-month, high end of the original mandatory guidelines range] resulting from such an adjustment was therefore not ‘available.’” /d. (citation modified).

So as Smith stated it, the district court could “impose a new sentence within the applicable range prescribed by law, i.e., statute and guidelines, at the time of initial sentencing-in this case, within a range of four to ten months.” Jd. at 136. Otherwise stated, the district court could independently consider the probation violation and penalize it with any time not yet imposed for the original offense up to the top end of the then-mandatory guideline range. /d.

The Smith decision set off alarm bells in the office of Judge William W.

Wilkins, the first and then-acting Chairman of the United States Sentencing Commission. Just twenty-five days after the Smith decision, Judge Wilkins sent a letter to Senator Strom Thurmond, the Ranking Member of the Committee on the Judiciary.? See 136 Cong. Rec. 28230 (1990). Spotlighting Smith, Judge Wilkins sought Congress’s help by asking Senator Thurmond to try to enact a “proposed clarification of the statute on revocation of probation to ensure this sanction will also be applied consistent with Congressional intent.”4 Jd. He sought “minor modifications to 18 U.S.C. § 3565, pertaining to revocation of probation, and to 18 U.S.C. § 3553, pertaining to factors to be considered by courts in the imposition of sentence.” /d.

Judge Wilkins wanted statutory amendments to override Smith and “to promote an interpretation that is consistent with Congressional intent, under the Sentencing Reform Act.” /d. His legislative fix had two aims: (1) to allow district courts to impose incremental punishment for probation beyond the top end of the then-mandatory guideline range for the offenses of conviction violations (via his proposed § 3565(a)(2) amendment), and (2) to give statutory

authority to district courts to implement the soon-coming, more robust

> The Sentencing Reform Act of 1984 had bipartisan backing. Senate co- sponsors included Senators Edward M. Kennedy, Joseph R. Biden, and Orrin Hatch. See United States v. O’Neil, 11 F.3d 292, 300 (1st Cir. 1993).

4 Here, by “also,” Judge Wilkins referenced his letter to Senator Thurmond just a month earlier about needed statutory amendments for supervised release. For the reader’s ease of reference, I attach Judge Wilkins’s two letters and Senator Thurmond’s responses to his Senate colleagues to this concurring opinion. 136 Cong. Rec. 28228-32.

5 November 1, 1990 version of Chapter 7 of the sentencing guidelines (via his proposed amendment creating § 3553(a)(4)(B)). Though Judge Wilkins disagreed with Smith’s reasoning and result, he conceded that “while we believe the Eleventh Circuit decision is plainly contrary to sound policy and congressional intent, we cannot say it is an implausible reading of the statute [§ 3565(a)(2)] or that other courts may not come to a similar conclusion.” Jd.

As for Smith’s barring district courts from sanctioning probation violations beyond the top end of the mandatory guideline range for the offenses of conviction, Judge Wilkins asked Senator Thurmond to delete the § 3565(a)(2) text that Smith thought dispositive, that is, the statute’s direction to “impose any other sentence that was available under subchapter A [18 U.S.C. §§ 3551-3559] at the time of the initial sentencing.” /d. Judge Wilkins proposed substituted language directing the court to “resentence the defendant under the provisions of subchapter A of this chapter [18 U.S.C. §§ 3551- 3559].” Id.

The legislative history precisely shows that Congress, in coordination with Judge Wilkins’s advice, created the two-step sentencing procedure set forth in Moore I. As shown by the below quotations from Judge Wilkins’s 1990 letter to Senator Thurmond, Judge Wilkins saw his two proposed amendments as needed to secure a two-step sentencing procedure after revocations of probation. At the first step, the Chapter 5 guideline for the original offense of

conviction would remain in place. At the second step, the Chapter 7 policy

6 statement for the probation violation would apply even if it extended the defendant’s sentence above the top end of the mandatory guideline for the offenses of conviction. Judge Wilkins’s correspondence leaves no doubt that his object was to separate Chapter 5 and Chapter 7, not to merge them (as Moon Seals would now have it):

e “The clarifying language will provide that revocation decisions are to be based upon sentencing guidelines and policy statements issued by the Commission specifically for that purpose, thereby negating any implication in current statutory language [see Smith] that the guidelines applicable to the initial sentencing of defendants also apply to probation revocation decisions.” /d.

e “Since the Commission is instructed under 28 U.S.C. § 994(a)(3) to issue guidelines or policy statements for the revocation of probation and supervised release, we believe Congress clearly intended that these guidelines or policy statements, rather than those applicable to initial sentencing, be used by courts when sanctioning probation (or supervised release) violators.” /d. Judge Wilkins continued this thought by contrasting Smith’s rule as one that “constrains the court when it revokes probation” and permits only “a sentence... . within the guideline range applicable to the defendant’s initial sentencing decision.” /d. Judge Wilkins also disagreed with Smith’s rule “interpret[ing] the statute [§ 3565(a)(2)] to preclude a court from considering the probation violation itself as a basis for sentencing above the original guideline range applicable at the defendant’s initial sentencing.” /d.

e Seeking to ensure a meaningful incremental sanction for a probation violation, Judge Wilkins stated that “[a]s a result of the [Smith] court’s holding, courts in the Eleventh Circuit will be constrained by a guideline range that, in our view, will be inadequate to sanction probation violations appropriately in many cases. Additionally, in some cases (for example, those in which the defendant was sentenced to probation with a condition of jail confinement for a period of time) a defendant will be subject to little or no imprisonment sanction even where there was a serious breach of probation conditions.” /d. e Judge Wilkins sought “to remove any doubt that these pronouncements— not those applicable to initial sentencing decisions—are the appropriate reference for revocation purposes.” /d.

On the separate point of district courts’ future access to the upcoming Chapter 7 policy statements, which were set to become effective on November 1, 1990, Judge Wilkins expressed concern that Smith’s rule would “impede Commission plans to implement a system of policy statements for revocation decisions, preparatory to issuing guidelines for revocation at a future date.” /d. He declared that “Smith would appear, however, effectively to block courts in that circuit from using these [upcoming Chapter 7] policy statements for probation revocation decisions.” /d. To avoid that, he proposed amending § 3553(a)(4) by adding a subsection (B) reading as follows: “or (B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a)(3).” See id.

Obviously agreeing with Judge Wilkins, Senator Thurmond sought the amendments to §§ 3553(a)(4)(B) and 3565(a)(2) that Judge Wilkins had proposed. So, first, Senator Thurmond sought to replace the language from § 3565(a)(2) that Smith depended on—“impose any other sentence that was available under subchapter A at the time of the initial sentencing”—with Judge Wilkins’s proposed language: “resentence the defendant under the provisions of subchapter A of this chapter.” /d. at 28231. In his “Explanation of Probation

Revocation Proposal,” Senator Thurmond advised his colleagues that Smith had

8 “erroneously construed” the “at the time of initial sentencing” language “to mean a sentence in accordance with the sentencing guidelines applicable at initial sentencing of the defendant.” /d. Also advocating the two-step procedure that Moore I later incorporated, Senator Thurmond contrasted the substitute text as “permit[ting] courts to resentence a defendant whose probation sentence is revoked to another statutorily authorized sentence—1.e., a sentence authorized under sections 3551-3559 of title 18.” /d. (emphasis added). He declared that a “resentenc[ing]” was needed because “under the Sentencing Reform Act [of 1984], probation is a sentence; therefore, when a probation sentence is revoked, the defendant must be ‘resentenced.’” Jd. Thus, Senator Thurmond’s proposed amendment would, and later did, solve Judge Wilkins’s first problem with Smith.

Second, Senator Thurmond sought to amend § 3553(a)(4) by adding the above-referenced subsection (B) “to provide a direct reference to Sentencing Commission guidelines or policy statements applicable to revocation decisions.” /d. As he stated it, “[t]he proposed amendment makes it clear that it is the guidelines or policy statements issued specifically to guide revocation decisions, and not the guidelines and policy statements applicable at initial sentencing, that govern court decisions when considering violations of probation or supervised release.” /d. (emphasis added). He noted that the “[c]urrent statutory language in section 3553 contains no reference to

guidelines or policy statements issued by the Commission pursuant to 28

9 U.S.C. § 994(a)(3), the paragraph authorizing and directing the Commission to promulgate guidelines or policy statements for the revocation of probation and supervised release.” /d. So the amended text would provide the needed “analogous directive in section 3553 requiring court consideration of these particular guidelines or policy statements.” /d. Once again, Senator Thurmond tracked Judge Wilkins’s requested changes and his reasoning for them. Moore / incorporates this direction. II. Moon Seals’s Arguments against Moore I

As shown next, Moore I followed the direction and reasoning of Senator Thurmond and Judge Wilkins in its interpretation of the amendments to 18 U.S.C. §§ 3553(a)(4)(B) and 3565(a)(2) as enacted into law in 1994.° As I understand Moon Seals, he makes the following arguments, each of which I would reject.

A. Chapter 7 Subsumes Chapter 5

According to Moon Seals, Moore J mistakenly requires two steps in the resentencing proceeding (the first at Chapter 5 and the second at Chapter 7)

rather than just one step (at Chapter 7 alone). In effect, Moon Seals argues that

> Congress enacted Senator Thurmond’s proposed amendments in the Violent Crime Control and Law Enforcement Act of 1994 (VCCA), Pub. L. No. 103-322, 108 Stat. 1796. Though it took multiple tries before Congress passed Senator Thurmond’s amendments, the proposed statutory amendments remained substantively the same throughout these tries. The legislative history also remained consistent. See 137 Cong. Rec. 14821-—24 (1991); 139 Cong. Rec. 3762-63 (1993).

10 Senator Thurmond’s 1994 amendments eviscerated Chapter 5 whenever a district court imposes and later revokes a sentence of probation. For several reasons, this argument lacks merit.

First, as seen, the studied words of Judge Wilkins and Senator Thurmond show that they did not eliminate Chapter 5 in the probation-revocation setting in favor of an all-consuming Chapter 7.° To the contrary, they separated the two punishments rather than fusing them into an indistinguishable lump. They reserved authority to the district courts to impose an incremental sanction for a probation violation above the then-mandatory Chapter 5 sentencing guideline range for the offense of conviction. They did not favor a nonsensical result of rewarding a probation violator with a substantially reduced guideline range for violating their conditions of probation. Instead, the 1994 statutory amendments were drafted and enacted to overcome the Eleventh Circuit’s decision in Smith, which had b/ocked incremental probation-violation sanctions exceeding the top

end of the guideline for the offense of conviction.

° In a single sentence, Moon Seals claims that legislative history supports his Chapter 7, one-step sentencing procedure, but he does not back this with any analysis. Op. Br. at 9, 11, 13. His sole other reference to legislative history is from his citation to United States v. Schwegel, 126 F.3d 551, 554-55 (3d Cir. 1997). Op. Br. at 11-12. But that case simply addressed whether § 7B1.4’s ranges for supervised-release violations were mandatory or advisory. Because Chapter 7 contains policy statements and not guidelines, the court correctly held that the Chapter 7 ranges were advisory. /d. at 552-53. Thus, the court in Schwegel referenced the legislative history for a different point than Moon Seals does and not in a way that helps him.

11 Second, even apart from the statutory text and legislative history, Chapter 7 itself refutes Moon Seals’s argument. In the November 1, 1990, Introduction to Chapter 7—which remains intact—the Sentencing Commission opted for a breach-of-trust approach to probation violations. In part, it reasoned that “the sanction for the violation of trust should be in addition, or consecutive, to any sentence imposed for the new conduct.” U.S.S.G. ch. 7, pt. A, 3(b). Nothing there suggests that, in the probation-revocation setting, Chapter 5 vanishes and leaves Chapter 7 as the sole permissible sentencing mechanism. Elsewhere, the Introduction provides that “[t]he grade of the violation, together with the violator’s criminal history category calculated at the time of the initial sentencing, fix the applicable sentencing range.” /d. ch.7, pt. A, 4 (emphasis added).’ The “applicable sentencing range” is the probation- violation range found at § 7B1.4’s sentencing table alone.

Third, Moon Seals’s argument that the district court could sentence using Chapter 7 exclusively while retaining discretion to vary upward by relying on the Chapter 5 range lacks merit for at least two reasons: (1) we could not meaningfully review such a sentence not knowing which portion was assessed

for the offense of conviction and which portion was assessed for the probation

’ The best that Moon Seals can cite otherwise is § 7B1.3(b), which provides as follows: “In the case of a revocation of probation or supervised release, the applicable range of imprisonment is that set forth in § 7B1.4 (Term of Imprisonment).” But this simply recognizes that the Chapter 7 sanction is calculated independently of the Chapter 5 term of imprisonment for the underlying offenses of conviction, not that Chapter 5’s prison time disappears.

12 violation; and (2) we could not as needed apply the two different standards of review for substantive reasonableness under Chapter 5 and under Chapter 7 if called on to review a fused sentence like the one imposed in Moon Seals’s case. The problem is that we defer less when reviewing Chapter 5 prison terms than we do when reviewing prison terms under Chapter 7’s policy statements. See United States v. Vigil, 696 F.3d 997, 1002-03 (10th Cir. 2012) (“[A] court does not need to find severe or exceptional circumstances to impose a sentence above the range suggested in the Chapter 7 policy statements, which are not mandatory and even less compelling than established Guidelines.”).

Fourth, Moon Seals does not credit the importance of the sentencing guidelines being mandatory in 1994 when the Wilkins-Thurmond amendments were enacted. Congress amended § 3565(a)(2) for one stated reason alone—to overcome Smith’s limitation on district courts’ ability to sanction probation violations. But if courts had adopted Moon Seals’s interpretation of the 1994 statutory amendments before Booker was decided in 2005, the courts could have resentenced probation-violating defendants exclusively under Chapter 7’s policy statements all the way up to the statutory maximum—so to a term of imprisonment far exceeding the Chapter 5 mandatory-guidelines range for the offense of conviction. That would not have comported with the pre-Booker

mandatory-guideline regime. Fifth, despite Moon Seals’s objections to a two-step system, any sentencing after a probation revocation functionally requires two steps.® For instance, even in Smith, the district court was required to impose its Chapter 5 sentence within the mandatory guideline range and then consider additional time if available for the Chapter 7 violation. And even in Moon Seals’s case, the district court at least considered a Chapter 7 sanction before erroneously electing to disregard Chapter 7 entirely. The question isn’t whether a district court must take two steps—it must—but is whether the district court must show its sentencing work at each step so that we can meet our duty to meaningfully review the prison time imposed at each step for procedural and substantive reasonableness.

Sixth, despite Moon Seals’s contrary position, when a district court follows Moore I’s two-step framework and calculates a Chapter 5 sentence for the offense of conviction and a Chapter 7 sentence for the probation violations, it has not imposed two sentences. The court cumulates the prison time for each

and imposes that as the total sentence shown in the judgment. See Pepper v.

® Cases that purport to apply only the Chapter 7 range do so in name only. They migrate from Chapter 7 by falling back on the Chapter 5 guideline range for the underlying offenses in affirming sentences that are well beyond the Chapter 7 ranges. See Michael, 12 F.4th at 860-61; Kippers, 685 F.3d at 500-01; Verkhoglyad, 516 F.3d at 130 & n.5, 134; Huffman, 2023 WL 4700644, at *1—*2. Moore I requires district courts to show their work by separately considering the offense conduct (anchored to its applicable range) and the probation-violation conduct (also anchored to its applicable range), rather than nominally fusing them together under one range that does not estimate the distinct conduct.

14 United States, 562 U.S. 476, 507 (2011) (“A criminal sentence is a package of sanctions that the district court utilizes to effectuate its sentencing intent.”).

B. The “or” Preceding Section 3553(a)(4)(B)

Moon Seals contends that by adding an “or” and not an “and” between § 3553(a)(4)(A) and (B), Congress meant to limit district courts at revocation to either Chapter 5 or to Chapter 7, not to both. But this view also suffers fatal defects.

First, again as seen from his written words, Senator Thurmond proposed that Congress add subsection (B) to § 3553(a)(4) for a single reason—to provide a statutory basis for district courts to apply Chapter 7 to probation violators. Nothing hints that he meant to disrupt the uniform and proportionate sentencing reforms as Moon Seals’s reading of the “or” would do.

Second, the statute could not be drafted to read “and” instead of “or” when many probationers don’t violate their conditions and many convicted defendants who have served their prison sentence do not violate their supervised release. For offenders who violate, district courts take a lap around subchapter A for the offense of conviction and later another lap for the supervision violation (whether of probation or supervised release).

Third, the “or” helps direct district courts to different sources of law that govern a sentencing for the offenses of conviction versus those that govern a

sanction for violating probation, with § 3553(a)(4)(A) pointing to Chapters 1

15 through 5 of the sentencing guidelines, and with § 3553(a)(4)(B) pointing to Chapter 7.

For all these reasons, I disagree with Moon Seals’s arguments that Moore I improperly interpreted the disputed statutes and sentencing guidelines. Instead, Moore I reached the sensible result that Congress directed by its 1994 statutory

amendments.

16 28228

knowledging the role Engiish hag played in forging this great Nation, Through our shared language, we communicate, we debate our differ- ences and reach compromises, and we express the bellefs In freedom and in- dividual rights thal make us uniquely American,

The Issue of official language is common sense, It is communication, It Is whether Amerleans will continue to bridge the differences that coud easily divide us. Ib is having one common element, amid our rich dlver- sity, that gives us the essential tool for working within our communities and economy, A shared language provides a cultural guldepost that we must malntain for the sake of our unity, prosperity and democracy.

I am privileged to Introduce jegists- tion to designate English the official language of our government, The Lan- fuage of Governroent Act affects only the language of publle business, not private conversation, It does not affect the home, the church, or the commu nity. It does not affect the home, the church, or the community, It will not affect emergency health services or translators in court cases. But it docs affect the future of our Nation,

By Mr, THURMOND (for him- self, Mr, Broen, and Mr, Ken- NEDY ):

&. 3180. A bili to amend provislons of tlle 18, United States Code, relating to terms of Imprisonment and super- vised release followlng revocation of a term of supervised release: to the Committee on the Juduclary. IMPLEMENTING AND CLARIFYING CERTAIN REC-

OMMENDATIONS OF TILE 0.5. SENTENCING COM+

MISSION @ Mr. THURMOND. Mr, President, today I risa to Introduce legislation which wilt fmplement various techni- cal and clarifying proposals related Lo the revocation of supervised release and probation. This important meas- ure |g cosponsored by Senator Broen and Senator Kennepy, These propos- als were suggested to me by the U.S. Sentencing Commission wlth the desire that they might be promptly enacted so that the supervised release component of sentences will function as Congress intended.

Regarding the history of the U.S, Sentencing Commission, in 1984, I worked with Senator Brpen, Senator Kennepy, and other colleagues on the Judiciary Committee and in the Senate to formutate the Sentencing Reform Act which was enacted into law as part of the Comprehensive Crime Control Act of 1984, The Son- tencing Reform Act focused on two major problems jm the Federal criml- nal justice system; First, the disparity in sentences imposed on individuals convicted of similar crimes: and second, the actual time served by those convicted of crimes which was

CONGRESSIONAL RECORD---SENATE

often much less than the sentence im- posed. In an effort to address (hese problems, the Sentencing Reform Act created the U.S, Sentenelnge Commis- slon. Its purpose is to formulate gulde- IInes to be used by judges in the sen- tencing process. As a result of the Commissions efforis, people now con- victed of simflar crimes will serve sim!- lar sentences and the sentences im- posed will reflect the netual time that must be served.

Despite the success of the Sentenc- Ing Commission and iis guidelines, sleps must be taken to ensure that it is free to carry out Hs duties and respon. sibilities, The legislation I am (ntro- ducing today will enhance the Com- mission's abilfty to carry out Its man- date,

Briefly, this legislation would make the following changes to current law, First, {t would clarify that Federal courts retain the flexibility to order an additional pertoed of supervised release following the fmposition of a term of imprisonment for a violation of a con- dition of supervised release. This measure would also grant the Sentenc- ing Commission greater flexibility in drafting sentencing guidelines for the sanctloning of offenders who, while on supervised releasc, are found in posses. ston of a controlled substance. This greater Mexibillty will enable the Com- mission to draft guidelines and policy statements that best achieve the goals of consistency and proportionality that the sentencing reform act was in- tended to cover.

Finally, this bill provides that dect- slons to revoke superviscd release should be based upon sentencing guidelines and policy statements issued by the Commission specifically for that purpose. The effect of this change would be to settle a split among the Federal courts on the {issue of whether the guidelines applicable to inifial sentencing of defendants also apply to probation revocation deci- sions,

In closing, the technical changes em- bodled in this legisintion are consist- ent with original congresstonal intent under the Sentencing Reform Act. I believe this legislation will further the goals of the Sentencing Reform Act to provide unfformity in sentencing as well as assure that sentences will be served in thelr entirety,

For these reasons, I strongly urge my colleagues to closely review this legislation,

Mr. President, I ask unanimous con- sent that two letters I received from Judge Withiam Wilkins, Chairman of the U.S. Sentencing Commisslon, de- tailing these technical amendments be printed In the Recons.

There being no objection, the letters were ordered to be printed in the Recorp, as follows:

October 10, 1980

U.S. SENTENCING COMMISSION, Washington, DC, July 26, 1990. Senator Strom Tiunsaonn, Ranking Member, Commiltee on the Judied- ary, U.S, Senate, Washington, DC.

Dean Senaton THurMoNn: Lam pleased to iransmil to you {wo leglsiative proposals that the Sentencing Commission approved for submisston to Congress at iis July 24, 1000, meeting, Aléhengh the proposals are primarily teehnical In nature, the Commis- sion beHeves they would make a useful policy contribution to the proper, congres- sfonally Intended role of supervised release within the federal erhainal justice system,

In brief, the Commission recommends the following changes:

1) Ensure the Availability of Supervised Reicase Following Revocatlon Cand Other Related Changes)—The Commission recom- mends that 14 U,5.C, § 3683Ce)(3) be amend. ed to clarify that courts retain Oextbility lo order an additional period of supervised re- jease foHowing the imposition of a term of fraprisonment for a violation of a condition of supervised relense. While current law can be read to allow this kind of Nexibility al- ready, a deelsion by the Ninth Clrenit has recentiy rejected such a constructlon—al- though the court acknowledged as a polley matter (hat its deelslon appeared lo run counter to the purposes of the supervised release statule, ‘fhe proposed amendment would help ensure the more flexible reading the court favored for policy reasons and the Cominisston aiso belfeyes wotthd better re- flect congresstonal intent In this aren. Other subsecHons of the proposed amendment are designed to complement the central feature dust deserlbed or to effect a purely technical change,

(2) Provide Flexibility as to the Amount of Prison to be Served Upon Ravocatlon for Drag Possession--The Commission also ree- ommends that 18 U.5.C, § 3583942) be amenc- ced io allow groater Hexbility In sanctioning offenders on supervised release who are found to be in possession of a controlled substance, In this case, the greater Cexfbil- ity would enable the Commission to draft guidelines and pollcy statements that best achtevo the goals of consistency and propar- tlonality that the Sentencing Reform Act was intended Lo foster. This proposal paral- Jels nnd complements a similar provision is the Crime Contro] bill recently passed by the Senate pertaining to revocation of pro- bation for driig possession,

A fuller explanation of these two amend: ments In included with the Commisston’s propesed amendment language enclosed WH dhis Jetter, Because Uie recent court deelsion may lead to wvideslrable applea- Hiens of Lhe supervised release statule, the Commission recommends congressional action, especially on the first of these pro- posals, at the earllest opportunity. In adal- lion, beeause the Commission expects to issue polley statement governing supervised rolernse revecatlon Chis fall, timely passage of both of Liese proposals would also help enhance the effectiveness of the newly issued potley statements in achieving thelr Intended objectives.

The Commission appreciates your assist- ance on this matter,

Sincerely, WrLuiaM W. WILKINS, JF, Chairman,

October 10, 1990

PROPOSALS

PROPOSAL ONE. TO ENSURE THE AVAELIABILITY OF SUPERVISED RELEASE FOLLOWING REYOUA+ TION (AND OTHER RELATED CHANGES)

See. 1. (a) Subseetfon (0308) of seclion $683 of Hille Ht, United States Code, fs amended lo read as follows:

"(3) revoke a term of supervised retease, and require the person to serve fn prison all or part of the term of supervised release nu: {horlzed by statule for the offense of which the defendant was convicled without credit for time previously served on postrelease sue pervlaton, (f lt finds by a preponderance of the evidence that the person violated a con dition of supervised refense, pursuant to the provisions of the Federal Rules of Crininnt Procedure that are apptieable to probatton revocation and to (he provisions of applica- ble polley statements Issued by (he Sentence. ing Commisston, except thal a person whose term fs revoked under this paragraph may not be required lo serve more than 3 years tn prison If Une offense for which the persen was convicted was a Class B felony or mere than 2 years in prison if the offense was a Class € or D felony.".

(b) Subseelion (e6) of section 3583 of title 18, United States Code, Is redesignated as subsection (64),

(ce) Scclion 3584 of titke 18, United Sintes Cade, Js amended by adding at the end the followtag new subseetlom

“Ch) Where s term of supervised relense Is revoked and the defendant Is required to serve a term of imprisonment that is less thon the maximum term of faprlsonment authorized under subsection (63) of tints seellon, the court may include the require: ment that the defendant be placed on 4 term of supervised release after imprison- ment, The length of such term of supervised release shall hot exceed the term of super- vised release authorized by statute for the offense of whieh the defendant was conylet- ed, less any term of imprisonment Lhat was imposed upon revocation of supervised re- lease."

PROPOSAL TWO, TO PROVIDE FLEXIBILITY AS TO TILE AMOUNT OF PRISON TO HE SERVED UPON REVOCATION FOR DRUG POSSESSION

Sec, 1, Subsection (x) of section 3683 of title 18 United States Code, is amended to read as follows:

“(} Possession of controlled substances, If Lhe defendant is found by the court to be tn the unlawful possession of a controiled sub. stance, the court shall reyoke the term of superdsed release and require the defend- ant to serve a term of Imprisonment not to exceed the maxinaim term of imprisonment authorized winder subsection (c3) of thls seetlon.”

EXPLANATION OF AMENDNENTS TO ENSURE AVAILABILITY OF SUPERVISED RELEASE FoL- LOWING REVOCATION

PROPOSED SUBSECTION $n}

This subsection amends 18 U.S.C. § 358003) to authorize a court to order a defendant, upon revocation of his or her term of supervised release, to serve a period of imprisonment net exceeding the maxl- mum perlod of auperyised release Unat {nt- shy could have been tmpesed under the staltite, In contrast te the proposed amend- ment, the maximum period of imprisonment that may be ordered upon revocation of su- pervised reicase under current law generally may not exceed the term of supervised re- lease actually imposed al the orlgingal sen-

CONGRESSIONAL RECORD—SENATE

teneing.! The proposed amendment retains (he present Umitation in § 38683(e)¢3) that the maximum period of imprisonment or- dered upon revocation may nol exceed three years H the defendant was originally sen- tenced for a Class B felony, or two years if the defendant was sentenced for a Clasa C or D felony,

The provision is designed to comptoement. a proposed new subsection $6890) that ox- pressly authorizes a eourt to order further supervision after the defendant completes u prison term that bas been imposed for vio- Inting a condition of supervised release, The amendment also would permit courts greal- or flexibility Lo Impose lmprisonment saue- Hons for serlous violations of the eondittons of aiipervised release, without belig Hritted by the maximum of the original term of su- pervised rclease imposed. The modification avolds anomalies thal otherwise may result under ihe current statule. For exainpile, De- fondant X, convicted of a GB felony and given a one-year (below-guldeline) term of supervised release, commits a serlous viola. tlon of bis supervised release term: wpon revocation, he could be ordered to serve no more than one year in prison Cupless the court first extended the term to three years or more, a bifurcated procedure thal ts lo say the least, more clumbersome), Defendant Y, also convicted of a B felony and given vn three-year term of supervised rejeaso, vlo- lates an equally serlous condition of super- vised release; under current iw, he could be ordered to serve up to Ulree years in prison, Under the proposed amendment, a cotirt would have equal flexibillty to order a three-year period of lmprisonment for each defendant.

The proposed aise maintains a proper re- intlonship betiveen alternative sanctions, en- suring Ubal extending the term of supervi- slon would be used as a less punitive sane- tion (han revocation, whereas the converse may be (rue under current law. Without this change, a defendant subject. fo a short periad of supervised release whe commits a serlous violation warranting revecation woukl polentlally face less bnprisonment time than another defendant who commit- ted a less serious Violation bul whose term of supervised retense had previously been exdended for minor violations,

While the proposal may on the surface appear to {nerease widely the poterittat prison exposure for defendants, in actual practice this effec. would be quite ilmited duc to the fret that current sentencing Buldelines require minimum supervised re- lease terms equal or greater to the rmaxt- mum imprisonment sanctlon authorized under the statule Cunaffected by ihts pra- posal) for all offenses cxcepl Class A felo- nles. Thus, the only types of cases polentlal- ly affected by this change wit be defend: anta who have been sentenced for Class A felonles who are given supervised release terms loss than the statutory maximum and those who are given a period of supervised release jess than required by the guidelines.

PROPOSER SUBSECTION 1 (b}

In order to correct a technicad error In the existing statute, subsection (e¢)(6) is redesig- nated as subsection (e4),

‘An exception to ils rale would occur Uf, pura: ant to 2 458aeN2), the court had extended the term: of supervised release beyond Ue orjelnnl term imposed. In this cess, current Jaw would allow a catirt lo order that an offender serve In prison all or part of the extended term upon revocation,

PROPOSED SUBSECTION L(t)

This subsection provides clear authority for « courl, la appropriate cases, to order a further period of supervision upon release from Imprisonment when superyised release Is revoked, While an argument can be made that the present stitute already permits a court, ata toininwim, fo order a defendant to recommence the unexpired porlion of a term of supervised release, the Ninth Clr cult of Appeals has recently held to a con- trary. See United States vy. Behnezhad, No, 80-1062) (oth Cir, Fuly 3, 1080), The court recognized that the polley result af ffs lotd- ing was undesirable, stating:

“Since there would be great virtue pad much benelll to all concerned If eourls were glyan more flexibility in Unis area, we em- brace Uhis result with veltelly, Nevertheless, embrace Ho owe must for Congress has spoken.”

The guthorily to lapose further superyi- sion followhig revocation would appenr to besl serve Lhe purposes of the supervised re- lease scheme, Absent such Cextblilty, courts invy be reliictant to revoke supervised re- lease, even in the face of serious breaches of supervision conditions, tccause doing so could lead to an early expiration of criminal Justice cuntrei; once the prison term Im- posed upon revocation were seryed, the de- fendani would bo unsupervised even though lits conduct could well demonstrate te the court an even greater need for supervision than at the defendant's original senteneing, Thus, an offender serving a lengthy super: vised release term—for exampte, 10 years (as is possible for some controlied substance of- fense)—who violated a condition requiring o short pertod of re-lmprisonment—for ¢xam- ple, 00 days—would have virtually the cntire ij-year supervised release term éxtin- guished ff he commitled the violation early in the term. Indeed, this possibility argu. ably may encourage violations of supervised release conditions, Allernatively, this result may compel some courts to iinpose a longer perlod of imprisonment than otherwise would be needed to punish the violation, In order to malafain criminal Justice control since post-releasa supervision would not be avaliable,

The proposed change seeks to avold pre- senting (he court with the ehoice between doing too Httte and doing more than neces- sary by permitting the court te order a fur- ther term of supervised release following an Imprisonment sanction. The length of {hls additional term of superviston could not exceed the maxinuim term of supervised re- jease originally imposable under amended subsection (e3), as reduced by any period of imprisonment the defendant served upon reyocation. Furthermore, & defendant could only be ordered to resume supervised re- lease if he had served less time in prison upon revocation than the maximum allowed under subsection (e)(3) (ie. less than three years for a B fclony, less than two years for aC or D felony, less than one year for # Class A misdemeanor), This ensures that revocation will be a statutorily available samellon at ail times that a defendant fs serving 4 period of supervised retense.

Among conceivable policy cholees, thls proposal strikes a middle ground. At one ex- treme of the policy options, a court could be empowered to impose an entirely new term of supervised relense undiminished by any perlod of imprisonment served as a revoca- tion sanction, 'Thls option could result, how: ever, ind a defendant remaining on super. vised release Indefinitely, At the other ex.

treme, ao defendant could be given eredit for both time on superviston plus time In prison following revocation, ‘This option, perhaps available under existing Haw (reading the statute differenUy from the Ninth Clreutt construction), provides Jess flexibilfty for the court and would undermine the abjee- tive ef providing a period of post-imprison- ment stperviston for defendants,

Under this milddle-ground proposel a de- fendant wil fwittil bis supervised release requirement by elther satistactorlly serving the perlod of supervision (ag 11 may be ex- tended, or imposed following faprisonment upon revocation) or upon revecation(s), by serving In prison the maximum period al- lowed by law. The proposal, therefore, em- bedies a ‘declining balance’ approach to the satisfactlon of a supervised release obit gation under which both the maximum prison sanclion available woon revocation and the maximum period of additional su- pervision that may be mandated following imprisonment are progressively reduced by any perlod of additional imprisonment the defendant is ordered to serve upon revoca- Hon,

EXPLANATION OF AMENDMENT ON REVOCATION FON DRUG POSSESSION

The Commission also recommends an ad- ditional, unreatated amendment to 8 U.S.C. §3693(g), pertaining to mandatory revoea- {ton for a defendant found by the court to have possessed a controlled subslanee, The proposal would relain the mandatory revo- cation requirement but would ellminate the requirement that the defendant be ordered to serve In prison at least one-third of the term of supervised release.

The existing “enc-third’ requirement ar- bitrarily Gases the sanetion on the length of the term of supervised release to which the defendant is sublect, rather than on the se- Tiousness of the violation and Is unnecessary In a system in which court revocation dect- slons are structured by sentencing guide- lines. In determining the length of an im- prisonment sanctlon te be imposed upon revocation on a defendant found in unlaw: ful possession of « controlled substance, the court ts required to consider any applicable guidelines or poley statements Issued by the Sentencing Commission. These Commis- slon pronouncements, In order to be cons!sl- ent with the statute, necessarily must re- quire revocation of supervised release for it legal drug possession and can better ensure consistency and proportionslity of puntsh- ment for such violations.

Additionally, the new language substitutes the term "revoke" for the existing term “tonninate”’ and Inserts the word “unlaw- ful” before "possession" in order to clarify the Intent of the provision.

U.S. Sentencine Commission, Washingion, DC, August 24, 1990. Senator Strom THURMOND, Ranking Member, Committee on the Judiod ary, Washington, DC.

Dear Senator Trurmonp: On July 26, 1990, I transraitted to you two technical and elarifying legislative proposals relating to the revocation of supervised release that the Sentencing Commission recommends for prompt enactment so Uhat the supervised re- tease component of sentences will function as Congress Intended. Subsequent events have ted the Commission to supplement those proposals with the attached proposed clarification of the statute on revocation of probation to ensure this sanction also will be nppiied constatent with Congressional ntent.

CONGRESSIONAL RECORD--~-SENATE

Speelfieaily, the Commisston recommends minor modificattons to 186 U,S.C. $3565, per- talning to revocation of probation, and to 18 U.8.C, $3669, pertalning to factors to be considered by courls in the imposition of sentence, The elarifytag language will pro- vide that revocation deelsfons are to be based upon sentencing guidelines and policy statements Issued by the Conimission specif: jeally for that purpose, Lhereby negating any Implication in current statutory jan- sulage that the guidelines applicable to the infial sentencing of defendants also apply to probation revocallon decisions,

Since the Commilsslon is Instructed under 28 U.8.C. §90dtaa) to issue puldelines or policy stutements for the reyocatton of pro- bation and supervised release, we beHeve Congress clearly intended thal these gulde- lines or poticy statements, rather than Lhose appHeable to initial sentenctng, be used by courts when sanctioning probation (or su- pervised release) violators. However, on July 31, £900, the U.S, Court of Appeals for the Eleventh Circult, without any discussion of this express directive to the Cormmission, held Jn United States ¥, Smith, No, $0-9226, that the guideline range applicable ta the Initial sentencing decisjon also constrains the court when it revokes probation, In par- ticular, the court held that the provision of 18 U.8.C, $9665(ax2) authorizing a court upon revocation of probalion to “impose any other sentence that was avalable. .. at the time of the Initial sentencing" dacs nol encompass any other sentence authorized by slatute bul, rather, encompasses only a senlence authorized by statute that ts within the guideline range appieabte at the defendant's {initial sentencing decision. Moreover, the court interpreted the statute to preclude a court from considering the probation violation fiself as a basis for sen- tencing above the original guideline range applicable at {he defendant's Initial sentene- ing.

Asa result of the court's holding, courts in the Bleventh Circuit will be constrained by a guideline range that, in our view, will be Inadequate to sanction probation viola- tlons appropriately [n many cases. Addition- ally, in some cases (for example, those in which the defendant was sentenced to pro- bation with a condition of jail confinement for a period of thine) a defendant wilt be subject to litlie or no imprisonment sanc- Hon even where there was a serlous breach of probation conditlons. Nevertheless, while we beleve the Eleventh Cirouit dectsion Is plainly contrary to sound polley and eon- gressional intent, we cannot say {It is an im. Blausible reading of the statuée er that other courta may not come to a similar con- clusion.

Furthermore, to the extent this view of the law fs sustained, it will impede Commis- ston plans to linplement a system of polley statements for revocation decisions, prepar- atory to issuing guidelines for revocation at o future date, Toward this end, the Commis- slon has Just approved a set of policy state- ments to gulde courts In making decisions regarding the revocation of probation and supervised release and plans to distribute them in the next several weeks. The Elev- enth Circuit decision in Smith would appear, however, effectively to black courts in that circuit from using these policy state- ments for probation revocation decisions.

The attached proposed Jegisiative change modifies the statutory language upon whieh the Eleventh Ctreult. rested [ts deeision to promote an Interpretation (hat is consistent with Congressional Intent under the Sen-

Ovtober 10, 1990

tencing Reform Act. It speeiflently refer- ences the guddelines or polley statements issued by the Commission under 13 U.S.C. $984(n)9) to remove any dovbt that these prenouncements—not those applicable to inltial sentencing deeislons—nmre the appra- priate reference for revecatlon purposes,

The Commission recoramends congres- sional enactinent of thls probation revoen- tion proposal, as well as the proposals on su- porvised reicase revocation previously trans- mitted, al the earliest opportunity,

If I can provide any additional inferma- tlon with respeet to any of these proposals, please do not hesttate to contact me, or have your staff contact John Steer, the Commission’s General Counsel at 626-8500,

Sincerely, Witiiam W. WILKINS, JT., Chairman,

PROBATION REVOCATION PROPOSAL

See. 1, (a) Subsection (a2) of seetion 3666 of title 18, United States Code, [s amended by striking “Ipypose any other sentence that was avaliable under subthapler A at the time of the initial sentencing” and inserling fh Heu thereof “resentence the defendant under Lhe provislons of subchapter A of this chapter’.

(b) Subsection (a4) of sectlon 3653 of litle 1B, United States Code, is amended by inserting "(A)" after “estabHshed for" and by Jnserling at the end prior to the semi- colon ", or (B) in the ease of a violation of probation or supervised release, the applica- ble guldelines or polley slatements issued by the Sentencing Commisston pursuant to 28 U.S.C, 9840a}3)",

@ Note: Conforming changes also to be nminde in 18 U.S.C. § 3566 (a) and ¢b), taking into account pending erime bin provisions.

#8885, Revocation and probation

(a) Continuation or revocation.—Ii the de- ferndant yiolates a condition of probation at any thie prior lo the expiration or termina- tlon of the term of probation, the court may, alter a hearing pursvant to Rute 32,1 of the Pederal Rules of Criminal Procedure, and after considering the factors set forth fii seetlon 3663(a) to the extend that they are applicable—

C1} continue him on probation, with or withoul extending the term of! modifying or enlarging the conditions; or

Notwithstanding any ether provislon of this section, If a defendant is found by the court Lo be in possession of a controlled sub- stance, thereby violaling the condition im- posed by section 3565(ax3), the court shall revoke the sentence of probation and sen- fence the defendant to not less Uran one- third of the original sentence.

#3553. [niposition of w nentence

(a) Factors ro Be Consipenen in ImMposine 4 Senrence.The court shall impose a sen- tence sufficient, but not greater than neces- sary, to comply with the purposes set ferth fn paragraph (2) of this subsectlon, The court In detormining the particular sentence to be Imposed shalt consider—

(1) the nature and clreumstances of the offense and the history and characteristics of the defendant:

{2} the need for the sentence imposed—

{A) to reflect the serlougness of the of- fense, to promote respect for the law, and to provide Just punishment for Uhe offense;

(5) to afford adequate deterrence to eriml- nal conduct:

‘So In artglaat Probably showtd be ‘or’,

October 16, 1990

{C) to protect the publie from further erlmes of the defendant; and

(D) to provide the defendant with needed educational or vocatlonal (raining, medical eare, to other correctional treatment in the most effective manner;

(3) the kinds of sentences available

(4) the kinds of sentence and the sentenc- ing range established for CA) the applicabte category of offense committed by the appH- cable category of defendant, as set forth In the guidelines that are lasted by the Sen- tencing Commisslon pursuant to 26 U.S.C, §04(a)(1) and that are in effect on the date the defendant ts sentenced, or 03) In the case of a violation of probation or super- vised release, the appileabie guidelines or policy statements issued by the Sentencing Commission pursuant to 26 ULS.C, 994083);

{5) any pertinent policy statement issued by the Sentencing Commission pursuant to 28 U.S.C, O94(ah(2) that is in effect on the date the defendant ls senteneed:

(6) the need to aveld unwarranted sen- tence dispartties among defendants with simitar records whe have been found guilty of similar conduct: and

(D the need lo provide restitution to any victims of the offense,

EXPLANATION OF PROBATION HEVOCATION

PRoOPasAL

Subsection (a) amends 8 USC. $ 3506ta)(2) by deleting language Instructing n court upon revocation of probalion to “Impose any ether sentence that was avall- able tinder subchapter A al the Gime of the intial sentencing.” In llew of this Jangune¢e, the court would be autherlzed lo “resen- tence the defendant under the provisions of subchapter A of this chapter," The phrase “available under subchapter A at the Ume of the tnilfal sentencing” recently was erro- neously construed by the Court of Appeals for the Eleventh Circuit in United States v. Smith, No, 89-8226 (July 31, 1900} 19 mean a sentence In accordance with the sentencing guidelines applicable at initia! sentencing of the defendant, [n contrast, the substitute language would permit courts to resentence a defendant whose probation sentence Is re- voked to another statutorily authorized sen- tence—ie,, a sentence authorized under seq- tlons 3551-9569 of title 18.

Although the substitute language deletes the phrase "at the time of the inflial sen- tencing," the ex post facto clause of the Constitutlon nevertheless would prevent a defendant whose probation ls revoked from faclog a greater statutory penalty than au- thorized under statutes In effect when the original offense was committed, The term “resentence” tn the substlhute proposal Is appropriate because, under the Sentencing Reform Act, probation Is a sentence; there- fore, when a probation sentence fs revoked, the defendant must be “resentenced.”

Subsection (b) of the proposal amends 18 U.S.C, § 3563¢a4)—factors to be considered in imposing sentence--to provide a direct reference to Sentencing Commission gulde- tines or pelley statements appiicable to revo- eation decisions, The proposed amendment miakes [L clear that it is the guldelines or polcy slatements issued npectficaliy to gulde revocation decisions, and not the guldeilnes and polley statements applicable at initia) sentencing, that govern court deel- sions when considering volatlons of proba- tlon or supervised release. Current statutory language In section 3553 contains no refer- ence to guidelines or policy statements Isgued by the Commission pursuant ta 28 U5.C. $004(a9), the paragraph authoriz

ing and direetilng the Commission to pra: mulgate guidelines or polley statements for the revocation of probation and supervised release,.! ‘Thus, under current jaw, although ithe Comunissten is directed lo issue such pronouncements, there fs no analogous di reclive in seclion 3663 requiring court con- alduration of these parlHcular guidelines or pollcy slatements. The proposed amend- ment correcls this omission and fneorpo- rates court consideration of Commission guidelines or poilcy slatements for revoca- Hon decisions inte the sentencing scheme of this chapter of the Sentencing Reform Act. Concurrent wth the above proposed amendments, conforming changes should be made Jn the Jast sentence of 18 U.S.C. §3566(n)} and In 18 U.S.C. §3665(6), These conforming changes will need to be cuordl- nated with pending amendments to these subsecttans contained in Senate and House versions of the Comprehensive Crime Con- trol Act of 1990, Uneven Srares OF AMERICA, PLALNTIFF-APPEL- LEE, V. PHILTERT Ray Smitn, Derenpan?: ACPELLANT

ENo, 80-8228 Non-Argument Calendar]

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

1990 1.5. App. LEXIS 12850 JULY 31, 1980, PRIOR HISTORY: [" 1]

Appeal from the United States District Court or the Southern Disirlet of Georgia. No, CR488-70:; Vining, Judge.

Counsel W, Douglas Adams, Bransiwick, Georgia, for Defendant-Appellant. Kathryn M. Akiridge, AUSA, Savannah, Georgia, for Plaintiff-Appellee,

Judges: Tjoflat, Cintef Judge, Clark, Cir- cull Judge, and Henderson, Senior Ctreuit Judge.

OPINION BY, TIOFLAT

Opiniom Phitbert Ray Smith appeals from an order of the district court revoking hls probation and sentencing him te a term of incarceration. We vacate Smith's sen- tence and remand the case to the district court of resentencing.

I.

On August 16, 1988, Smith pled gulity to an information charging him with posses- sion of counterfelt United States currency in violation of 18 U.S.C. 4472 (108, for which the maximum statutory term of im- prisoniment is fifteen years, Because the of- fense occurred after November 1, 1087, Smith's sentence was governed by The Sen- tenelng Reform Act of 1984, Pub.L. No. #6- 473, 0B Stat. 1987 (codified, as amended, In scattered sections of 18 and 18 U.S.C), and the sentencing guldelines promulgated thereunder, sce United States Sentencing Commisston, Guidelines Manual (West Nov. 1986} (hereinafter Sentencing Guidelines). Under the guidelines, (*27 the base offense leve) for offenses involving counterfeit cur- rency is 9, Bee fd. § 265.i¢a) In his presen- tence Investigation report, to which neither party objected, the probation officer adfust- ed the offense level upward by two levels based on defendant's rete as an organizer of the two-person scheme lo pass counterfell bills, see fd. §3B1.Me), and dewnward by

'Parmaraph (4) of section 365d(n) requires courts to consider guidelines for initial sentencing decl- alonsa Issued by the Comrmlssien under 28 08.0, $004(ay1), Paragraph (6) of seclion 95654(n) re- gulres courts lo consider potley statements Essved by the Commisston under § 904002),

two levels based an his acveptanee of re- sponsibility, see fd. § 3E1,1¢0), for o Lolal of- fense level of 0. The probation officer placed Smith in Crimifnnl History Category IL The applicable sentencing range, there- fore, was from four to ten months of fmprls- onnment, see id, ch. 6, pt. A sentencing tbl & commentary, Because the minimum term of Imprisonment specified by the sentencing table was between one and six months, Smith was ellgible for probation provided he served a term ef community confine- ment, Sea id. §5BL1, 502.102), §C2,1(e)(2), On November 21, (988, the dis- trlet court implicitly adopted the probation offtcer's guideline appitestion and imposed a sentence of three years’ proballon, with four! months to be spent al a community treatment center, on the conditlon that, inter aila, Smith (°3} remain drug-free.

Smith entered the Chatham County Com- munty Treatment Center in December 1988. Two drug tests administered whe Smith Was al the Center revealed the presence of drugs in his urine, Smith was expelled from the Center after the second test, and his probation officer petitloned the court for revocation of Sialths probation. The proba- tlon offfeer appended Lo the petition a report on Smith's conduct while on proba- tion and recommended a new sentence of elghteen months’ Imprisonment followed by a two-year term (4) of supervised refease. The recommended sentence was calculated Py applying the sentencing guidelines as fal- ows!

Total offense level for the offense of con- viction; 8,

Base offeuse level for the conduct that violated probation: * +4.

Adjustments: 4./- 0,

Total: 13,

Criminal History Category: 1.

Applleable Guideline.

Range: 12-18 months,

Sentence Recommendation: 18 menths.

On Marel 6, 1989, the district courl bold a hearing and reyoked Smith's probation. The courl correclly noted that the guidelines do not specify how a court Is to proceed after revoking a guldeline sentence of probation, see id. ch. 7, then slated: "(Tibere belong no (*6] guidelines {on resentencing after proba- Hon revocation), the Court then reverts to the statutory maximum for the underlying offense, In this ease possession of counter- felt bills. The maximum punishment pre- serlbed by statute for thal is ffteen years,” The court then fropHeitly adopted the pro- bation officer's recommendation and tn posed a prison term of eighteen months fol- lowed by « period of supervised release not 1o exceed three years,

KE

In this ease ef first impresston for the courts of appeals, Smith argues that the dis- trick courl erred (1) in holding that the guldejines do not apply to prébation revoca- tien proceedings and (2) In inposing a

tUnder the Comprehenstye Crime Control Act of 1084, probnilon is a type of sentence fn and of jtself, Bee 1 U.S.C. £3501 (1088); 8S. Rop. No, 226, s8th Cong,, ad Sess. 88, reprinted In 1084 U.S, Code Cong. & Admin, News $182, 3271, Under prior law, the court would either (1) suspend the imposttion of sentence and pul (he defendant on probation, or $2) Impose & prison sentence, suspend ils executlon, and put the defendant on probation, Bee t@ UBC. $3051 (hOU2) Crepeaicd 1086)

'See Sentencing Guidelines § 2D2.1(a103F Chose offense level of 4 for possession of controlled sub- élances not covered apeciftcally by other subsec- Hon).

prison sentence Celghteon months) that ex- ceeds the one ortginally available under the guldeiines at the tlme of initial sentencing (four to ten months). We agree.

The statute governing prebation revoca- tion prevides in relevant part.

fa) Continuation or Revocation.--If the defendant violates a condition of probation at any Ume prior to the expiration er term!- nation of the term of probatlon, the court may, after a hearing pursuant to Rule 32.1 of the Federal Rules of Crimtnal Procedure, and after considerating the factors set forth In F*G} (18 U.S.C.) seetlon 3853ta) Lo the extent thal they are appliicable—,

(1) continue him on probation, with or without extending the term for] modifying or enlarging the conditions: or

(2) revoke the sentenve of probation and Impose any ofher sentence thal was avall- able under subchapter A [18 U.S.C, § 3581- 3659) at the Uime of the initial sentencing.

18 U.5.C, § 3865 (19688) Cemphasis acdded).*

At the Lime of Smith's Initial sentencing, the district court was required to apply the guidelines, Thus, the guidelines, as well ag the statutory maximum for the offense of conviction, determined what sentences were “available” abl that Ume, (*7) Before the dts- triet court could bapose a proper sentence under the guldellnes, it has to make flnd- Ings of fact concerning Smith's total offense ievel and criminal hiskory category, whieh it did by adepting the findings in the proba- Hor offleer's orlginal report without objee- tion from clither party, Naturally, tie facts established at the time of inital sentencing could include only conduct that had already occurred, Because the conduct that constt- tuted a prabation violation had not yet oe- citred, no upward adjustment in Smith's total offense level could haye been based on thal conduct, and the tonger sentence of lm- prisonment resulting from such an adjust- ment was therefore not “ayallable." ‘Thus, pursuant Lo section 3665, the guidelines con- trol the imposition of a new sentence after probation reyocation In the sense that the original determinations of total offense ievel and criminal history category, based upon relevant {nets established at the time of sentencing, delimit the sentences that were then avallable. The probation offlcer's use Of the guidelines—adding the base of- fense level for the post-sentencing conduct that violated probation to the total offense level for the offense (*8) of conviction—was clearly incorrect in Hight of section 3565,

The relevant facts before the court at the time of Initfal sentencing aiso determine whether and to what extent the district court may depart from the guidelines after probation reyocation, If at that tme the court had before it Information that would have juatified a departure, the court may re- visit those facts and, based upon them, may choose to depart when imposing the new sentence, In such & case, the sentence de- parting (rom the guidelines was available at the time of initlal sentencing, although the court did not al that time choose to depart or event to Identify the Information that aupported a possible departure. The proper extent of the departure {subject to the atatutorlly prescribed senlencing range) de- pends, of course, upon Lhe relevant sentenc-

*8ectlon 3665, as amended tn 1086, requires revo- tatfon when a defendant on probattos ta found (o be in possession of a controiled substance, Sco 18 UEC, (I66Hoh The terms of the amendment apply only to persons whose probatlons began after December 31, 1988, however, and therefore do not apply to this case. Gee Pub, L. 100-090, title VU, £7303(0), 102 Stat, dt, 4agd.

Ing faete originally before the court rather than on the condnet that constituted the probation violation,

This (ls not to say ant post-sentencing conduck is irrelevant to probation revoen- lion proceedings. Where revecation Js not mandatory, the district court + may certain: ly consider such conduct when devlding whether ta revoke probation or to continue it, either (8) on the same or different terms, see fd. § 356500), 3666(a)C1). Farther- more, alter revoking probation, the district courl has discretion {oa impose a new sen- tence within the applicable range prescribed by law, Le, stalule and guidelines, at the time of initlat senteneclng--in this case, within a range of four to ten months. Conmon sonst suggests that the court ought to be able to consider the conduct giving rise to revocation (Le,, posl-sentene- Ing conducl) in deciding what sentence to select within the guideline range or even whelher to depart fram the guidelines, pro- vided the conduct Justifying departure (Le., pre-sentencing condttck upon whieh depar- lure could have originally been based) was brought 10 the court’s atlentlon at the Int tial sentencing hearing. Similarly, where a term of supervised releae is discretionary, see Sentencing Guidelines §6D11(b), the court aught to be able to consider the pro- batlon ylolation in deciding whether to Impose such a term, And whether super- vised release fs discretionary or mandatory, see id. §5DL.1¢a), the court should be able to consider the violation In delermining the conditions, and within the range preseribed (*10] by iaw, the duration of the lerm, see fd. §6D1,2

In the ease at hand, the district court's fnposition of a three-year term of super- vised release fell within the applicable sen- tencing range for a Class C felony. See td. §5D1.2(b)(2) (offense is Class € felony tf statutory term ig from ten to twenty-five years), Supervised relense is mandatory, howeyer, only if a prison sentence of more than one year [s (mposed, see id. § Dia); in such casea as the one at hand, where the applicable prison sentence Is less than one

year, the court has diseretlon with respect

to supervised reloase, see fd. § §6D1.1(b), In ylew of the court's crroneous fmposhlon of a sentence exceeding one year, we cannot know whether the court would have im- posed a term of supervised release lad it ex- erclied Its discretion In the matter. There- fore, on remand, district ecourl should decide not only where to sentence Sinith within the four-to ten-month range but also wheth- er (*11] Lo impose a term of supervised re- lease, and, if the court so decides, its dura- tien. For these purposes, the courl may con: sider Smith's conduct on probation. Hi.

For the foregolng reasons, we vacate Smith’s sentence and remand ithe case to the district court for resentencing consist- ent with this opinion,

Vacated and remanded.e

ADDITIONAL COSPONSORS

8, 2044 At the request of Mr, Brpen, the name of the Senator from Georgla (Mr. Nunn) was added as a cosponsor of &, 2044, a bill to require tuna prod- ucts to be labeled respecting the

‘See, eg, supra note & Sentencing Guldoilnes STALL Map

method used to catch the tuna, and for other purposes. 8.2041 At the request of Mr. Simon, the names of the Sengtor from Indlana [Mr, Coats], the Senator from Mon- tana (Mr. Burns), the Senator from Colorado (Mr. Armstrong], the Sena- tor from Wisconsin (Mr, Kasten], and the Senator frora Minnesota {Mr. Boscuwitz] were added as cosponsors of S, 2111, a bill designating the month of May as “Asian/Pacific American Herltage Month.” 8, 2607 At the request of Mr. Rein, the names of the Senator from Pennsylya- nia (Mr, Hemnz) and the Senator from Vermont (Mr, JEFrronns) were added as cosponsors of S. 2637, a bill to amend fhe Toxte Substances Act to reduce ihe levels of lead In the envirenment, and for other purposes. 8.2729 AL the request of Mr, CHares, the names of the Senator from Californin (Mr. Cranston], the Senator from Massachusetts (Mr, Kenneny], and the Senator from Hawaii (Mr, Akaka] were added as cosponsors of S. 2720, a bill to amend the Coastal Barrier Re- sources Act, and for ofher purposes. B. 2764 AL the request of Mr, Brpren, the name of the Senator from Georgia {Mr, Fow ten] was added as a cospon- sor of &, 2764, a bill Lo combat viotence and crimes against women on the streets and in homes, §. 2788 At Che request of Mr, Conen, the name of the Senator from Connecticut (Mr. LigpERMAN] was added as a co- sponsor of S. 2796, a bill to amend title 1V of the Higher Education Act of i965 to aliow resident physicfans to defer repayment of thelr title IV stu- dent loans while completing a resident training program accredited by the Ac- ereditation Council) for Graduate Med- {eal Education or the Accrediting Com- mittee of the American Osteopathic Assoclation. 8, 2013 At the request of Mr, Granam, the name of the Senator from Alabama {Mr, SHeray] was added os a cospon- sor of S. 2813, a bill to authorize the minting of commemorative colns to support the training of American ath- letes particlpating In the 1992 Olymple Games, 5. 4964 At the request of Mr. Dopp, the names of the Senator from Delaware (Mr, Brven], the Senator from Massa- chusetls (Mr. Kenneny}, the Scnator from Nebraska (Mr, Kerrey], the Sen- ator from Nevada (Mr. Bayan], the Senator from Maryland (Ms. Mixut- ski], and the Senator from New York (Mr, Moynivan} were added as co- sponsors of S, 2954, a bill to place re-