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PUBLISH
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
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 Page 2I ); United States v. Moore , 96 F.4th 1290 (10th Cir. 2024) ( Moore II ). Malachi Moon Seals makes two arguments. First, for preservation purposes, he argues that this court wrongly decided Moore I . 1 Second, he notes that the district court committed error that was plain by not employing the binding two-step framework set forth in Moore I , 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 I ’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.
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.
Page 3R. 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 classD-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).2 But after Booker and Gall , 3 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 Page 4advocated 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. Id. at 163. Even so, “with severe hesitation,” the court relented and sentenced Moon Seals to five years’ probation for his twelve convictions. Id. at 164. The court imposed special conditions of probation as “100 percent necessary[.]” Id. at 168. The court warned Moon Seals that if he made more threats, “[t]he next step” would be revocation of probation and incarceration. Id. at 164, 183.
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 IS!!!!!!!!! HE’S FUCKING DEAD FUCKING MEAT!!!!! . . . .
Page 5R. 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.
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 I , 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 I or its two-step framework.4 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 governmentPage 6 “agree[d] with a lot of . . . [defense counsel’s] positions on the sentences that are available to the Court today.” Id. 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 I 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 I in its sentencing memoranda, but it didn’t defend Moore I or apply its framework in making its sentencing recommendation. Though alerted to Moore I , 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. Id. 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.” Id. The court said that it was tempted 'to just rely on the statutory maximum range and work within that range.” Id.
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.
Page 7Id. The district court procedurally erred-and plainly-in disregarding Moore I 's binding framework.5
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.” Id. (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 I is central to this appeal, we begin by reviewing that decision and its bases. After doing so, we consider and reject Moon Seals’s Page 8argument that the district court committed plain error by not imposing a 0month sentence at the first step of the Moore I 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. Id. at 1022–23. The defendant asked for time served and three years of supervised release. Id. 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 sixmonth trial period of release followed by a three-year term of probation if the six months went well. Id. 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. Id. When the defendant did violate, the court revoked his probation and resentenced him to 84 months. Id. 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 Page 9conditions of probation as required by 18 U.S.C. § 3553(a)(4)(B) and Chapter 7 of the sentencing guidelines. Id. 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. Id. 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. Id. 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.” Id. 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. Id. at 1027. That deprived us of an ability to meet our duty to review each piece for substantive reasonableness. Id.
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 I . We denied his motion. United States v. Moore , 119 F.4th 1232 (10th Cir. 2024) (mem.).
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 I was wrongly decided.
On appeal, Moon Seals begins with an obvious point—the district court committed error that was plain by not employing Moore I ’s binding framework in imposing its sentence.6 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 I , his 36- Page 11month sentence would fall within the Chapter 5 guideline range used by the district court.7
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.8
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 I , in which Page 12the 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. Id. (citing Moore I , 30 F.4th at 1026).
We disagree that the district court plainly erred by not imposing a 0month 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 I does not contemplate Moon Seals’s “alternative sentence” theory. Simply put, Moore I 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 I ). 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 Page 13probation, 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)).9
Page 14Fourth, 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 I 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.
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.
Exercising our jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm the post-revocation sentence.
Page 1524-1028, 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 I 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 I , the imposition of a within-Guidelines sentence at that step did not affect Moon Seals’s substantial rights. Instead, Moon Seals obtained an unwarranted 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”).
Page 1624-1028, 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 I in view of the likelihood of further challenges built on doubts expressed by a different panel in Moore II , 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 I 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.
In 1984, Congress enacted the Sentencing Reform Act, Pub. L. No. 98473, § 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 Page 17Cir. 1990).1 There, a defendant pleaded guilty to possessing counterfeit currency in violation of 18 U.S.C. § 472. Id. 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. Id. Two more offense levels were added for the defendant’s aggravating role as an organizer of the “two-person scheme to pass counterfeit bills[.]” Id. 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. Id. Because the fourmonth minimum term did not exceed six months, the defendant was eligible for a sentence of probation with a term of community confinement. Id. The court imposed a sentence of three years of probation, with four months to be spent at a community treatment center. Id. As a condition of probation, the court required that the defendant remain drug-free. Id.
While at the community center, the defendant failed two drug tests. Id. For that misconduct, the probation office petitioned the court to revoke the sentence of probation. Id. In revoking probation, the court observed that the sentencing guidelines gave it no direction on how to resentence after revocation Page 18of probation.2 Id. Left on its own, the court defaulted to “the statutory maximum for the underlying offense[.]” Id. (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. Id. 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).” Id. at 135. In reaching this result, the court relied on the 1988 version of 18 U.S.C. § 3565, quoting it as follows:
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.” Id. That was so because the probation-violating conduct necessarily occurred after the original sentencing hearing. Id. 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.’” Id. (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.” Id. 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. Id.
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 Page 20Commission. 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.3 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 Id. 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.” Id.
Judge Wilkins wanted statutory amendments to override Smith and 'to promote an interpretation that is consistent with Congressional intent, under the Sentencing Reform Act.” Id. 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 Page 21November 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.” Id.
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.” Id. 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 Page 22statement 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):
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.” Id. 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.” Id. 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.” Id. at 28231. In his “Explanation of Probation Revocation Proposal,” Senator Thurmond advised his colleagues that Smith hadPage 24 “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.” Id. 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-i.e., a sentence authorized under sections 3551–3559 of title 18.” Id. (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.’” Id. 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.” Id. 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.” Id. (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 28Page 25 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.” Id. So the amended text would provide the needed “analogous directive in section 3553 requiring court consideration of these particular guidelines or policy statements.” Id. Once again, Senator Thurmond tracked Judge Wilkins’s requested changes and his reasoning for them. Moore I incorporates this direction.
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 1994.5 As I understand Moon Seals, he makes the following arguments, each of which I would reject .
According to Moon Seals, Moore I 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 Page 26Senator 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 7.6 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 blocked incremental probation-violation sanctions exceeding the top end of the guideline for the offense of conviction.
Page 27Second, 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.' Id. ch.7, pt. A, 4 (emphasis added).7 The 'applicable sentencing range' is the probationviolation 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 Page 28violation; 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 preBooker mandatory-guideline regime.
Page 29Fifth, despite Moon Seals’s objections to a two-step system, any sentencing after a probation revocation functionally requires two steps.8 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.
Page 30United 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.”).
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 1Page 31 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.
Page 32knowiedging theroleEnglish basoften much less Lhan the sentence imcommunicate,wedebaieour differences and reach compromises,and we express the beltefs in freedom and indivldualrights thatmake us unlquely Amerlcan. played fnforging this greatNation.posed.In an effortto addressthese Through our shared language,we problems,the Sentencing ReformAct created the U.S.Sentenclng Commis. slon.Its purposeis toformulateguldellnes tobeuscd byjudgesin the scntencing process.As aresult of the victedofslnilnr crimeswill serve siml Commissions efforts,people nowconlar sentences and the sentences In.primarly technical In nature,the Commisposed wlll reflect the nctual time thatslonbellevestheywouldmakeauiseful mustbe served. U.S.SENTENCINO COMMISSION, Washington,DC,Juty 26,1990. SenatorSTRomTHUnMOND, RankingMember,Committee on theJudici ary.U.S.Senate,Washington,DC.
19000,mceting、Although the proposals arc thatthe SentencingCommisslonapprovcd transmiltoyou two leglslative proposals forsubmisslontoCongressatlsJuly24, DEAR SENATOR T'HURMOND:Iam pleaSed to sfonallyIntendedroleofsuperviscdrelease policy contribution tothe proper,congres. wlthin thefederal criminalJustice systen,
The Issue of official language is conmonsense,Itiscommunication.It iswhetherAmerlcans will continue to bridgethcdifferencesthntcould easilydivide us.It is havingonc commonelement,amidour rich dlversity,thatgivcs usthe cssentlal tool for workingwithinourcommunitiesand cconomy.A shared language provides aculturalguldepostthatwe must malntain for the sake of our unity, prosperity and democracy.
Despite the success of the Senteneing Commlssion and its guldelines, steps mustbe takento ensurethat.it is frec to carry out Hs dutles nnd respon. sibillties.Theleglslation I amIntroducing today will enhance the Commission's ability to carry out itsmandate. In brler,the Commlsslon recommends the followingchanges:
(1)Ensure the Availability of Superviscd Rclcase FollowingRevocatlon（nndOther RelatedChanges)-TheCoinmisslonrecom imprisoninentforavlolationofacondition leasefollowingtheImpositlonofatermof mends that18U.S.C.3583(e)3)be amend edtoclarlfy thatcourtsrctainflexlbilityto orderanaddltionalperiodofsupervlscdreofsupervised release.while currcntiaw can bereadtoallowthiskindofflexlbilityalready.adecislonby the Ninth Clrcuit has recentlyrejected suchaconstruction-al. thoughthecourtacknowledgedas apollcy matter thatlts dcclslonappearedtorun counter to thepurposesofthe supervised release stalule,‘The proposed amendment wouldheipensurethemoreflexiblereading the courtfavored forpolicy reasons and the flectcongresstonal ntentIn this area.Other Comnissionalsobellteves would betterre. subsectlons of theproposed amendment arc deslgned to complementthe centralfeature justdescribedor toeffectapurelytechnical change.
language ofour government.TheLantion todesignate English the official guageofGovernmentActaffcctsonly IamprlvilegedloIntrodueelegislathe language of publle business, not prlvateconversatlon.It does notaffect. thehome,the church,or the commnity.It does notaffectthe home,the church,or the community.Itwillnot affectemergencyhealthservicesor translators in courtcases.But itdoes affectthefutureofourNation,
thefollowingchangestocurrent.law. First,!twould clarifythatFederal Briefly,this legislation would make courtsretaintheflexlbilityto ordcran additionalperlodofsupervisedrelease following the imposition of a term of imprisonmentforaviolationofacon ditionofsupervisedrelease.This measurewouidalsogranttheSentencingCommlssiongreater flexibilityin draftlng senlenclng guidelines for the sanctloningofoffenderswho,while on supervisedrelease,arefound imposses. sionof acontrolled substance.This missiontodraftguidclinesandpolicy greaterflexibilitywillenabletheCom. statementsthatbestaciievcthc goals of consistency andproportionality that the sentencingreforimactwasintended tocover.
By Mr.THURMOND（for himself,Mr.BIDEN,and Mr.KENNEDY):
IMPLEMENTINO AND CLARIPYING CERTAIN RECOMMENDATIONS OP TIIEU.S.SENTENCING COMMISSION Finally,this bill provides that decf slonstorevokesupervisedrelease shouldbebased issued by the Commission specifically guidelinesand policystatements 1uponsentencing for that purpose.The effect of this changewouldbetosettleasplit amongtheFederalcourts ontheissue ofwhethertheguidelinesappllcable to initial sentencingofdefendants also applytoprobationrevocationdeclslons. (2）Provlde Flexibility as to theAmount Drug Possession--The Commisslon alsorec. ofPrisontobeServedUponRevocationfor ommends（hat18U.S.C.3583(g)bcamend cd toallowgrcaterfcxbility In sanctioning offendersonsupervisedreleasewhoare foundtobeinpossesslonofacontrolled substance.ln this case,the greater flexibilitywouldcnabletheConmisslontodraft guidelinesandpolicystalements thatbcst achievc the goals ofconsistencyand proportlonalitythattheSentencingReformAet was intended to foster.This proposal paral. lelsandcomplements aslmllarprovislonis the Crlme Control billi recently passed by theSenatepertainingtorevocationofpro. batlon for drugpossesslon.
In closing.the technical changes embodlcd n this legislation are consistent with orlginal congressional intent under the Sentencing ReformAct.1 goalsoftheSentencingReformActto believcthislegisiatlonwlllfurtherthe provide uniformity in sentencing as wellasassure(hatsentenceswiilbe served in their entirety.
For these reasons,I strongly urge mycolleagues tocloselyreviewthis legislation, A fuller explanation of thesetwo amend. mentsInincludedwiththeCommission's decisionmaylcadtoundeslrableappllea proposedamendmentlanguageenclosed wlth this letter.Bccause the recent court tions ofthe supervised release statutc,the Commisslonrecomnends congressional aetlon,especlally on the firstof theseproposals,at the earllest opportunity.In addl lion,because the Commission expects to Issuepollcy statementgoverningsupervlsed rolease revocatlon this fall,timely passage ofbothoftheseproposalswould alsohelp cnhancetheeffectlvenessofthe newly Issucd poilcy statemcnts inachieving their intendedobjectives.
Mr.President,I ask unanimous consentthattwolettersIreceivedfrom Judge William Wilkins,Chairman of the U.S.Sentencing Commisslon,dctailingthesetechnicalamendmentsbe
Therebeing no objection,the letters 'The Commisslon appreclates your assist. ance on thls matter. Sincerely,
WILLIAM W.WILKINS,JF, Chairnan.
Page 33PROPOSALS toneing.'The proposed anendiment retains thepresentlimitationn&3583(e)(3)thnt themaximumporlodofimprisonmentor. dercduponrevocatlonmaynotexceedthrce yearsfthedefendantwns originallysen. tenced for a Class B felony.or twoyears if thedefendantwas sentencedforaClass C or D felony. PROPOSEDSUBSECTIONI(C)
This subsection provides clear authority furtherperiodofsupervistonuponrelense for court,lnapproprlate cnses,toorder Isrevoked.Whilo nn argument can be made fromImprisonmentwhensupervisedrelease that the present statute alrendy permlts a court,atamlnimum,to order adefendant torecommencetheunexpiredportlonofa term ofsupervised release,the Ninth Cir. cult.ofAppealshnsrecently held toacontrary.See United States V.Bchtnezhtad,No. 80-10520(9th Cir.July 3，1990).Thc court recognlzedthatthepolfeyresnltofHtshoid. hng was undesirable,stating:
PROPOSAL.ONE:TO ENSURE THE AVAILIABILITY TION(AND OTIERRELATED CHANOES) OPSUPERVISED RELEASE POLLOWING REVOUA· oftitle 18,United States Code,is amcnded Sec.1.（a)Subscetfon(e)3)ofsectfon3583 to read as follows:
"(3)revoke a term of supervised release, andrequire theperson to servefnprisonall orpartof the term ofsupervised release au thorlzed bystatulefortheoffenseofwhtel thedefendantwas convictcdwithout.crcdit fortlnepreviously servcdon postrelease supervislon,ff lt finds by a preponderance of the evidencethatthepersonviolated a con. dltion ofsupervised release,pursuanttothe provislonsoftheFrederalRulesofCrlminnl Procedure thatareappleabletoprobatlon revocatfonandtotheprovisions ofapplieablepolley statements Issued by lheSentenc. ingCommisslon,except.thataperson whose termisrevokedunderthisparagraplmay notbercquiredtoservemorethan3ycars Inprisonif the offensefor whtch the purson was convlctedwns a Class B felony or more than2yearsin prison iftheoffensewasa Class C or D felony.".
Theprovision is destgned to complement a proposednew subsection 3583(h)that ex.t presslyauthorizesacourttoorder further superviston after thedefendantcompletesu prison termthnthas beenImposedforvlo.8 latingacondltlonofsupervisedrelease.Tle amendment.also wouldpernitcourts greal. crflexibilty toImposehnprisonmentsane. tlonsforseriousvlolationsofthecondittons ofsupervisedrelease,withoutbeigHnlted by themaxlmum of theorlginal term of su.brace thisresultwithvelleity.Nevertheless, pervised relense imposed.‘The nodifteation avoidsanomallesthatotherwisemayresult under the currentstatule.For exanple,De fendantX,convietedofa Bfelony andslonfollowhngrevocatlon wouldappenr to givenaone-year (below-guldeline)tcrmofbest serve thie purposesof the supervised re. supervisedrelease,commfts a serlous vlola. tlonofhis supervisedreleaseterm:upon revocation,he could be ordered to serve no more than one year In prlson (unless the superylslon conditlons,bccause dolng so courtflrst extended theterm to threeycars ormore,a bifurcated procedurethat Is toJustice control;once the prlson termln. saythe least,more cunbersome).Defendant Y,also convlctedofaBfelonyandgiven a three-ycar term ofsupervised release.vlo. lates ancrpualyserlous condition ofsupervised release;under current law,he could be ordered to serve up tothreeyears inprison. Under the proposed amendment,a court wouldhave cqualflexibilitytoorder a three-yearperfod ofImprlsonmentfor cach defendant. The authorltyto lnposefurther supervilease seheme,Absent sueh [lexlblity.courts 1maybereluctant torevokesupcrvised re lease,cven inthe face of serlous breaches of could lead toanearlyexpiratlonofcrlminal poseduponrevocationwere seryed,thedefendantwouldbeunsupervisedcven though liisconductcouldwolldemonstratetothe courtanevenRreaterneedforsupervision than atthedefendant'sorlginalsenteneing. Thus,an offender serving a lengthy supervisedrelease term-for exanpie,10years(as ispossiblefor some controlledsubstance of. fense)-whovlolatedaconditionrequirlnga shorlperiodofre-lmprisonment-forexam. ple,9odays-would have vlrtuallythecntire 10-year supervisedreleasetermextin. guishcdffhecommitted thevlolatlonearly in the term.Indeed,this possibility argu ablymayoncourageyfojallonsofsupervlsed release conditlons,Alternatively,thls result perlodofimprisonnientthanotherwise ordertomalntaincrininaljusticecontrol would beneeded to punlsh thovlolatlon,In time thananother defendantwho commit.sincepost-release supervlsfonwould notbc avallable. "Since there would be Breat virtue nnd muehbenefit toalleoncerned lfcoartswere given more flexlbiliy in this area,we em enbraceltwemustfor Congresshas spoken."
(b）Subsection （e)(5)of section3583of {ltle 18,United States Code,Is redeslgualed as subsection（e)(4）. (c)Seclion 3583of title 18,United Slates Code,is nmendedby addingattheendthe followingnew subsectlon:
(h）where a term ofsuperyisedrolease ls revokedandthedefendantIsrequiredto serveatermofImprisonmentthatlsless thanthemaximum term ofinprisonment authorizedudersubsectlon(e)3)ofthis sectlon,the courtmayinclude therequire. mentthatthodefendantbeplacedoa term ofsupervlsedreleaseafterimprlson. ment.Thelengthofsuch termofsupervised release shallnotexceedthe termofsuper. vlsedreleaseauthorlzedbyslatuteforthe offenseofwhiehthedefendantwasconyleted,lessany termoflmprisonment(hatwas imposeduponrevocatlonofsupervlsedre. lease.".
The proposed aiso maintains a proper re. Intlonshipbetween alternative sanctions,cn suringthatextendingthctermofsupervl. slon wouldbeused as aless punltive sane. tionthan revocation,whercasthe converse maybetrueundercurrentlaw.without periodofsupervisedreleasewhocommltsa serlousvlolatlonwarranting wouldpolentlallyfncelessimprlsonmont revocation tedalessserlousviolationbutwhoseterm ofsupervlsedreleasehadpreviouslybeen extendedforminorvlolatfons,
PROPOSALTWO:TOPROVIDKFLEXIDILITYASTO TIE AMOUNT OP PRISON TO BE SERVED UPON REVOCATIONFOR DRUGPOSSESSION Sec.1.Subsection (g）of scction 3583 of tltle 18 Unlted States Code,Is amended to read as follows:
The proposed change seeks to avoidpre. sentingthecourtwiththcchoicebetween doingtooHttteanddoingmorethanneces. sarybypermitilngthecourtloorderafurthertermofsupervisedreleasefollowingnn Imprisonmentsanetion.Thelength of thls additlonaltermofsupervision couldnot exceedthemaxlmunternofsupervlsedre leaseoriglnallyimposableunderamended subsectlon (e)(3),as reduced by any perlod ofimprisonmentthedefendantservedupon revocatlon.Furthermorc,adefendantcould onlybe orderedtoresume supervised re. leaseifhehadservedlesstmeinprison uponrevocationthanthemaxlmumallowed under subsecflon（e)3)(i.e.,less thanthree yearsfor aB felony,less than twoyears for aC or Dfelony.less than one year for Class A misdemeanor).This ensures that revocatlon willbeastatutorilyavallable sanctlonatalltimesthatadefendantis servingaperiodofsuperviscdrelease.
While Uhe proposal may on the surface appeartoIncrcasewidely the potentlal prisonexposure for defendants,in actual practicethiseffectwouldbequitelimited duetothefactthatcurrentsentencing guidellnes requireminimumsupervlsedreleasetermsegualor grcater tothemaxf. mumimprisonmentsanctlon authorized under thiestatule(onaffected bythis proposal)for alloffenscscxceptClassAfelo. nles.Thus,the only types of cascs potentlal. lyaffectedby(his changewill bedefcnd. aaitswhohavebeensentencedfor ClassA felonleswhoareglvensupervlsedrelease termsless than the statutorymaximumand those whoaregiven aperiodofsupervised release less than required by the guldelines.
"(g）Possesslon of controlled substances.If thedefendantisfoumdbythecourttobein t.heunlawfulposscsslonofacontrolledsub. stance,the court shall revoke the term of supervisedreleascandrequire thcdefend anttoserveatermoflmprisonmentnotto exceedthemaximumtermofimprisonment authorizedunder subsection （e)3)ofthls sectlon."
EXPLANATION OF AMENDMENTS TO ENSURE AVAILASILITYOF SUPERVISEDRELEASE FOLLOWING REVOCATION
PROPOSEDSUBSECTIONI(R)
This subsectlon amends18 U.S.C. 3583(eX3)toauthorlzeacourttoordera defendant,upon rovocation of his or her termofsupervlsedrelease,toserveaperiod ofimprisonmentnotcxceeding themaxl. mumperlodofsupervlsedreleasethatIni. tallycouldhavebeenlmposedunder the maynotexceed the term of supervisedre.court to order that an offender serve In prison sll statute,In contrast to the proposed amend. thatmnybe ordereduponrevocation ofsu. pervlsedrelease under currentlawgeneraily ment,themaxlmumperlodofimprisonment leaseactuallyimposedatthe orlginalsen.or partof thccxtended term uponrevoeation. InordertocorrectatechniealerrorInthe existingstatute,subsection(e)5)isredesignated as subscction(e)4) PROPOSEDSU8SECTION1(b)
Among conccivable policy cholces,thls proposalstrlkesamfddleground.Atone cx. tremeofthepolicyoptions,acourtcould be ever,in a defendant remaining on super. Uon sanction.Thls option couldresuit,how. ofsupervisedreleaseundimlnishedbyany perlodofimprisonmentservedasnrevoca. empoweredtolmposeancntirelyncwterm visedreleaseIndefinitoly.Attheother ex.
Page 34October 10, 1990
trene,a defendanlcould be given credit for ayailableunder existinglaw（rcadingthc statutedifferentlyfrom theNinth Cireuit construction),provldesless flexibility for thecourtandwouldundermine theobjcetive of provlding a perlod of post-imprlson. mentsupervision fordefendants.
Under thismlddle.groundproposala dc. fendantwlfullfillbis supervisedrelease requirementbyeithersatisfactorllyserving theperiodofsupervislon(asltmaybeextended,orimposedfollowinginprisonmcnt serving in prison the maximuniperlodal. prisonsanetionavailableupon revocatlon lowed by law.The proposal,therefore,cn. bodies adeolining balance'approach to the satisfaetlon ofa supervlsed release obll. gatfonunderwhlchboththemaximum andthemaximumperiodofadditionalsu. pervislon thatmaybemandated following imprisonmentare progressivelyreduced by anyperiodofadditionalimprisonmentthe defendant is orderedto serveuponrevoca. tlon. Speelfleally.the Commission recommendstencing Reform Aet.It speciflcallyrefer. followingrevocatlon.'This optlon,perhapstaining to revocation ofprobation,and toI8Issued bytheCommisslonunder 18 U.S.C. U.S.C.s3653,pertaining to faclors to he s994ta)3) to remove any dobt. that these pronouncements-not thoseappllcable1o rsentence,Thoclarlfymglanguagewillpro.inllialsentencingdeeislons-aretheappra. The Commissionrecommendscongrcstionproposal,as well as theproposals on su slonalenaetmentofthlsprobationrevocn anyImpllcatlonincurrentstatutorylan-peryisedreleaserevoeationprevlously trans. If1 canprovideanyadditional informa. tlonwithrespectto any oftheseproposals. please do notheshtate to contact me,or have your staff contactJohn Stcer,the Commlssion's Gcneral Counsel at826-8500. Sincerely. considered_bycourts in theimpositionof yldethatrevocationdeclsionsaretobeprlatereferenceforrevocatlonpurposes, based upon sentencingguldelines and poltcy stnteinents Issued by the Conimisslon spccif. lcally for that purpose,thereby negating guagethat the guldelinesapplicable tothemitted,at the earllcstopportunity. initialsentencingofdefendantsalsoapply toprobation revocatlon decislons.
Since the Coinmlsslon is Instructedunder bation and supervised relense,webelleye Congress cleariy intended thatthese gulde. ines or policy statements,rather than lhose appllcable toinitialsentencing,be used by 28 U.S.C.994(a)(3)toIssue guidelines or policy statcments for therevocation ofpro. courts when sanctioning probation (or su. perviscdrelease)violators.However.onJuly 31,1990,the U.S,Courl of Appeals for the Eleventh Circuit,without any discussion of this express directive to the Commission, held in United Statcsy.Smith,No.89-8226, that{heguldelinerangeapplicabletothe initial sentencing decislonalso constraims thecourtwhen itrevokesprobatlon.Inpar. ticular,the court held thatthe provislon of 3583(g),pertaining to inandatory rcvoca.18 U.S.C.s3665(a(2) authorlzing a courl any other sentence thatwas available...at thetime of the initial sentenclng'does not cationrequirementbutwouldeliminatetheencompassanyothersentenceauthorizcd by slatute but,rathcr,encompasses only a senlenceauthorizedbystatutethatis withinthe guldeline range applleableatthe defendant'sinitial 1sentencingdecision. bltrarilybases the sanctionon thelength ofMoreover,thc courtinterpreted thestatute (hetermofsupervlsedreleasetowhich thetoprecludeacourtfromconslderingthe defendant is subject,rather than on the se.probatlon vlolation ltself as abusis for sen. tencingabove theoriginalguidelinerange applicable athe defendant's Initlal sentene. Ing. WILLIAM W.WILKINS,Jr., Chairnan.
EXPLANATION OPAMENDMENT ONREVOCATION FORDRUGPOSSESSION PROBATIONREVOCATIONPROPOSAI. Sec.1.(n)Subsccllon(a)2)ofsection3585 of title 18,United States Code,Isamended by striking"inpose anyother sentence that Wasavaliableunder subchapterAatthc timeofthe initialsenteneing'andinserting Inlieu thereof"resentence the defendant undertheprovislonsofsubchapterAofthis chapter".
The Commlsslonaisorecommends an ad. ditional,wrealatedamendmcnt to 8U.S.C. have possessed acontrolled substance.The proposalwouldrelainthe mandatoryrevo. requirementthatthedefendantbeordered toserveInprisonatleastone.thlrdofthc term ofsupervisedrelease.
(b）Subsection （a)(4）of sectlon 3553 of title 18,United Stntes Code,Is amended by inserting"(A)"after "estabHished for”and bylnserlingattheendpriortothesemi colon",or（B)inthe case ofaviolation of probatlon or superviscd release,the applica. ble guldelines or polley slatementsissued by theSentencingCommisslonpursuantto28 U.S.C.994(a)(3)",
The exlsting"onc-thlrd’requirement ar. rlousness oftheviolatlonandIsunnecessary lnasysteminwhiclcourtrevocatlon decl. slonsare structuredbysentencingguldelines.In determinimg the length of an inprisonmentsanctlontobeimposeduponin theEleyenth Circultwhlbe constrained revocatlon on a defendantfound inuniaw.by aguideline rangethat,nour view,wll ful posscsslon ofacontrolled substance,the courtisrequiredtoconsider anyapplicable guldelinesorpollcystatementsIssuedby theSentencingCoinmisslon.TheseCommis.whlchthedefendantwassentencedtopro. slon pronouncements.In order tobe consist.bation withacondition of jail confinement ent with the statute,necessarlly must require revocatlon ofsuperylsedreleasefor il.subject tolittleornoinprisonmentsanc. legnldrugpossession and canbetter ensure conslstency andproportlonnlity ofpunish. mentfor suchvlolatlons.
2.Note:Conforming changes also to be adein 18 U.S.C.3565（a)and（b),taking into accountpendingcrlnebiliprovislons. 月3565.Revocntlon andprobatlon
Asaresult ofthe court's holding.courts beinadequatetosanctlonprobationyiolaetlonsapproprlatelyinmanycases.Additlon.andafterconsideringthefactorssctforth ally.in some cases（for cxample,those in foraperlodoftine）adefendantwlllbe tionevenwhere therewasaseriousbrcach ofprobation conditlons.Nevertheless,while webellevetheElevcnthCircuitdecisionIs plainlycontrarytosoundpollcyandcongresslonal intent,we cannot say it is an m. plausibtereadingofthestatuteorthat other courtsmaynotcono to a simiiar con. cluslon, (a)Continuation or revocatlon.-Ifthe defendantviolatesaconditlonofprobationat anytlmepriortotheexpirationortermina tlon of theterrm ofprobation,the court ofthe Pederal Rulesof CrlmlnalProccdure, may,after ahearlngpursuant to Rule 32.1 1insectlon 3553(a)to theextend thatthey areapplicablc-
(1）continue him onprobation,with or withoutextending the termof:modifying orenlargingthe condltions;or
Notwithstanding any otherprovlslon of thls section,Ifadefendantis found bythe courttobeinpossession ofacontrolledsubstance,therebyvlolatingtheconditlonlmposed by sectlon 3566(a)3),the court.shall revokethe sentenceofprobationandsen. tencethedefendanttonotlesstlianonethlrd oftheoriginal sentence.
Additionally,the new language substitutes theterm"revoke'for the exlsting term "termlnate”and Inserts the word "unlaw. ful'before"possesslon"in order to clarify theIntentoftheprovislon.
Furthermore,totheextentthisvlewof thelawis sustained,itwilllmpedeCommis slonplans tolmplementasystemofpolicy statcments for revocation dccislons,prepar. ntoryto lssuingguidelinesforrevocatlon at afuture date.Toward thisend,the Commls. slon hasjust approveda setof poliey state. mentstoguldecourtsnmakingdecisions supervisedreleaseand plans todistribute regarding the revocation ofprobation and them in the nextseveraiweeks.TheEley. inthatclrcuitfronusingthesepolicystatementsforprobationrevocatlondeclslons, appear,howcver,effectively toblockcourts enth CircuitdecisloninSmithwould 93553.Impoxlton of n mentence
U.S.SENTENCING COMMISSION, Washington,DC,August 24,1990. SenatOr STROMTHURMOND,
Rankiny Menber,Commtlteeon theJudtct. ary,Washington,DC. (a)FACTORS TO BECONSIDERED INIMPOSINO A SeNTENcE.The court shal impose n sentence sufficlent,butnotgreater thannecessary.to complywith thopurposes setforth fnparagraph (2)of this subsccllon,Thc courtIndeterminingthepartlcularsentence tobeimposedshallconslder
DEAR SENATOR THURMOND: On July 26. 1990.I transmlttedtoyou two technical and clarifylnglegislative proposalsrelatingto therevocation ofsupervlsedrelease that theSentencingCommlssionrecommendsfor asCongress lntended.Subsequent eyents those proposals with the attached proposed leasecomponentofsentenceswili function haveledthe Commlssion to supplement promptenactmentsothatthe supervisedreclarificationofthestatuteonrevocationof probationtocnsurethissanctionalsowlll be npplied consistent wlth Congresslonal intent. (1）the nature and circumstances ofthe offenseandthehistoryandcharacteristics ofthe defendant;
fense,topromoterespectforthelaw,and to provideJustpunishmentfortheoffense; (A)to reflect the scrlousness of the of. (2)the need forthe sentenceimposed(B)to afford adequate deterrence toerimlnal conduct;
The attachedproposedlcgislative change fmodiflesthestatutorylanguageuponwhich 1tleEleventhCircultrestcditsdecislonto promote anInterpretation that Is consistent withCongressionalintentundertheSen- So n orlginnl.Probably should be"or”,Page 35 (C）lo protectthe publicfrom further ing and directing the Commisslon to pro.two lcvels based on hisacceptance of re. crlmes of the defendant;and (D）toprovlieihedefendantwlthnceded mosteffective manner: care,toother correctionaltreatmentinthe
(4) the kinds ofsentence and the sentenc. (3）thekindsof sentenccs available; ingrange establlshed for(A) the applicabie tencing Commisslon pursuant to 28 U.S.C. the defendantIs sentenced,or (B)In the polcy statcmentsissued by the Sentencing vised release,thc applfcable guldelincs or Commisslonpursuantto28 U.S.C.994(a)(3); bytheSentencingCommissionpursuantto 28 U.S.C.994(a)(2) that is in effcct on the datethedefendantIssentenced; (6)the needtoavoldunwarranted sen. tence disparitles among defendantswlth similarrecordswhobave bcen found guilty victims of the offense. ofsimllar conduct;and (7)the need toproviderestltution toany mulgate guldelincs or polcy statemcnts for sponsibillty.see id.3Ei.1(a),for a lotal of therevocationofprobationandsupervlsed educationalor vocatlonaltralning,medicalrelcasc.Thus,under currentlaw，although theCommissionisdirectedloissuesuch pronouncements,thereIs no analogous di. slderationofthescparticular guldelinesor rectiveinsection3653requiringcourtconpollcyslatements.Theproposedamend. categoryofoffense committedbythe appll.mentcorrectsthisomission andincorpo. cable category ofdefendant,assetforthInratescourtconslderatlon ofCommission tho guidelines that nre issued by thc Sen-guldelines or pollcy statements for revocatondecislonsntothesentencingseheineof 994(a)(1)and that.are ineffecton the datethis chapter oftheSentencingReformAct. Concurrentwlththeaboveproposed case ofavlolation ofprobatlonor super.umendments,conforinlng changes shouid be madeIn thelastscntence of18 U.S.C. 3565(a)and in 18 U.S.C.3665(b),Thes0 (5）anypertinentpolicy statementIssuednated wlthpendlngamendmentstothese ：conformingchangeswilineedtobecoordi subsectionscontainedinSenateandHouse verslonsoftheComprchensiveCrimeControlActof1990. 1fenselcvelof9.'Theprobationofficer placedSmith in CrimlnalHistoryCategory 1.The applicable sentencing range,thicre fore,was from four toten monthsofImpris. onment,see id,ch,5,pt.A senteneing tbl.& commentary.Because the minlmum term of Imprlsonmentspeclfiedbythe sentenoing tablewasbetwecnoneand slxmonths, Smithwasellgibleforprobationprovided heservedalermofcommunity confine. ment.Seeid.§5B1.1，5C2.1(c)2), 5C2.1(e)2).On November 21,1988,the dis. trlctcourtlmplieitlyadoptedthcprobatlon four'monthstobespentatacommunity sentence ofthrec years'proballon,with offlcer'sguidelineapplcationandimposeda treatment center,ontho conditlon that, inter alla,Smith[*3]remam drug-free.
UNITEDSTATES OFAMERICA,PLAINTIFF·APPEL APPELLANT LEE,V.PHILDERTRAYSMITH,DEPENDANT [No.89-8226Non-ArgumcntCalendar] ELEVENTH CIRCUIT 1990U.S.App.LEXIS12850 JULY31,1990.
3565(a)2)bydeletinglanguageInstructing Subsection (a) ancnds 18U.S.C. acourt.uponrevoeationof probationto "mpose any other sentence that was avail. ableundersubchapterAatthetmeofthe Initial sentencing."In lieu of this language, tencethedefendantundertheprovlsionsof subchapter Aofthischapter."T'hephrase oftheinitialsentencing'recently wascrro. "availableunder subchapter A atthe time neouslyconstruedbytheCourtofAppeals fortheEleventhCircuitInUnitedStalesv. Smith,No.89-8226(July 31,1990) to mean a sentenceInaccordance withthe sentenclng guidelinesapplicable atInitia!sentencingof languagewouldpermitcourts toresentence the dcfendant.In contrast,the substitute adefendantwhose probation sentence Is rc. vokedtoanotherstatutorilyauthorlzedsentence-ie.,a sentence authorizedunder sec. tlons3551-3559oftitle 18. PRIORJISTORY:['1)
AppcalfrotntheUnitedStatesDistrict CourtortheSouthernDlstrlctofGeorgi8. No.CR488-76:Vinlng.Judge. Counsel:W.Douglas Adams,Brunswlck, Georgla,Ior Defendant-Appellant.Knthryn M.Aldridge,AUSA,Savannah,Georgia,for Plaintiff-Appcllee. cuit Judge,and Hendcrson,Senlor Circuit Judges:Tjoflat,Chief Judge,Clark,Cir. Judge.
Totaloffenselevelfortheoffense ofcon. vletlon:9, Baseoffenselevelfortheconductthat vlolatedprobation:"44. Adjustments:+/--0,
Total:13, Criminal History Catcgory:1. Applicable Guldeline, Range:12-18months.
courtcorrectlynotedthattheguldelinesdo hearingandrevokedSmith'sprobatlon.The SentenceRecommendation:18months. OnMarch6,1989,the distrlct.courthcld a notspeclfyhowncourtIsto proceedafter see id.ch.7,then slated:"[r]here being no revokingakuldelinesentence ofprobation, thestatutorymaximumfortheunderlying tlon revocatlon).the Court then revertsto ['5]guidelines(onresentencingafterproba offense,In this case possession ofcounterfeltbilis.The maxinun punishment pre. scrlbed bystatuteforthatisflfteenyears. The court thcnimpllcitlyadoptedtheprobatlonofflcer'sreconmendationandim. loexceedthreeycars. posedaprisontermofeighteenmonthsfollowedbyaperiodofsuperviscdreleasenot
ofincarceration.Wevacate Smith's sen. hlsprobatlonandsentencinghim toaterm fromanorderofthedistrictcourtrevoking Opinlon:Philbert Ray Smith appenls tenceandremandthecasetothedlstrict court ofresentencing.
Althoughthesubstltutelanguagedeletes Constitutlon nevertheless wouldpreventa defendantwhoseprobation Isrevokedfrom faclngagreater statutorypenaltythan au"resentence"In the substltute proposal ls thorizedunderstatutesIneffectwhenthe originaloffense wns committed.The term approprlate because,under the Sentencing Reform Act,probation Is a sentence;therefore,when a probation sentence is revoked, the defendant must be"resentenced." aninformation charginghimwithposses. On August.15,1988,Smlthpled gulity to thephrase"atthetime oftheinitialsen-sionofcounterfelt Unlted Statescurrency lencing,"the expostfactoclauseoftheinvlolation of18U.S.C.§472（198.for whiclthemaximumstatutorytermofinprlsoninentis fifteen years.Because the of. fense occurredafter November 1,l987, Smlth'ssentencewasgovernedbyTheSen473,08 Stat.1987(codified,asamended,In tenclng Reform Actof1984,Pub.L.No.98scattered sections of i8and 18 U.S.C.),and thesenteneing guldelines promulgated thereunder,sce Unitcd States Sentencing Commlssion,GuldelinesManual(West Noy. 198o)(herelnafter Sentenclng Guidellnes). Under theguidelines,(*21 thebnsc offense levelforoffensesinvolvlngcounterfeitcurreference to Scntencing Commissiongulde.rency is 9.See id.§2B5.i(a).In hlspresen. cation decislons,The proposed amendment party objected,the probation officcr ndjusl. tenceinvestlgationreport,towhlehneither makesItclearthatltistheguldelinesoredthcoffenselevelupwardbytwolevels thetwo.personschemetopasscounterfeit basedondefendant'sroteasanorganizerof bllls,see fd.3B1.1(c),and downward by muntyTrentmcntCenter inDecember1988. TwodrugtestsadministercdwhileSmithn Smlthentcred theChathamCountyCom wasattheCenterrevealedthepresenceof the Center after the secondtest,and his probatlon officcr petitioned the courtfor drugs mhis urine,Smith was expelled from revocation ofSmlthsprobation.The proba tlonofficerappcndediothepetitlona reportonSmith'sconductwbileonprobationandrecommendedanewsentenceof Thereconmendcdsentencewascalculated atwo.year term{*4}ofsupervisedrclease. clghteenmonths'imprlsonmentfollowed by by applying the sentenclngguidelines as fol. lows:
Inthlscaseoffirstimpressionforthe courts of appeals,Smith argues that the districtcourl erred （l)inholdlng that the guldelines donotapplytoprobation revocation proceedings and (2)Inimposing a
Subsectlon(b)ofthe proposalamends18 U.S.C,3553(a)4)-factors tobeconsldered Inlmposingsentencetoprovideadirect Hines orpollcy statements appilcable to revo. policyslatementsIssuedspeciflcaliyto gulde revocation declslons,and not the guldellnesnndpollcystatementsapplicable at Inltlal sentencing,thatgovern court decl. slonswhenconsideringvlolatlons ofprobatlon or supervlsedrelease.Currentstatutory languageinsection3553containsnoreferencetoguidelinesor policystatements Issuedby the Commlsslon pursuantto 28 U.S.C.904(a)(3),thc paragraphauthorlz.bythe Conimisslon undero94(ex2).
stances notcovered specifically by other subsee. oflenselevelof4forpossesslonofcontrolledsubSeeSentencingGuldellnes2D2.l（ax3）(bnse (fon).
Page 36October 10,1990
prison sentenca(elghtecn months)that cx.lng facts orlginally before tlhe court rathcr method used to catch the tuna,and ceedstheoneorlginallyavailableunderthe guldeiinesatthe time ofmitlalsentencing (four to ten months).Wengree, thanonthe conduet thatconstituted thefor other purposes. probntlonviolation, S.2111
This Is not. to say that post·sentencing conductlslrrelevantto probatlon revocation procccdlngs.Where revocation is notnames of the Senator from Indiana mandalory.thedistrletcourt·may cortain.[Mr.CoArs],theSenatorfromMon nation ofthetermofprobatlon,thecourtit,either[9]on thesameordifferent ：whether torevokeprobation or tocontlnue lyconsider suchconductwhendeeidlng tcrms,see id.§3563(c),3505(a)(1).Furthermore,after revoking probatlon,the distrlct courthasdiscretlontoimposeauewsen. tence withintihe applicablerangeprescrlbed by law,l.e,statute and guideiines,at the time ofinitial sentenclng--In this case. withinarangeoftourtotenmonthis. Common sonse suggests (hat the court oughttobeabletoconsidertheconduct giving rise to revocatlon (i.c.,post-sentencIngconduct)indecldlng whatsentenceto selectwithintheguidelinerangeoreven whether totopart from the guldelines,pro. pre-sentencing conductuponwhich depar. ture could haveoriginalybeenbnsed)was broughttothe court'sattentlonat the Inl videdtheconductJustlfyingdeparture(l.e., la!sentencing hearing.Similarly,where a term ofsupervisedreleaeIsdiscretionary. seeSentencing Guidelines 5D1,1(b),thc batlonvlolationndecldingwhetherto Impose such a term,And whether super. courtoughttobeabietoconsiderthepro. seefd.5Di.1(a).thecourtshouldbeable conditlons,and within the range prescrlbed toconsidertheviolationIndeterminingthe visedreleasels discretionaryormandatory. [*io] by law,thcduration ofthe term,see id.5D1.2 (a）Contlnuation or Reyocation.-If the atanytlne prlor to the oxpiration or termt. defendantviolatesaconditlonofprobation may,after ahearlngpursuanttoRule32.1 oftheFederal Rules ofCrlminalProcedaro, and after conslderatingthefactors setforth In[6}[18U.S.C.]scctlon3553（a）to tho cxtentthattheyare appllcable-. （1）continue hin on probatlon,with or wlthoutextendingthe tern[or]modifylng orenlargingthe conditlons:or (2）revoke thc sentence ofprobation and impose anyothcr sentence that was avnll able undersubchapter A[18 U.S.C.35513559]atthetlmcofthoinitialsentencing. The statute governing probation revoca. tionprovidesinrclevantpart:. At the request of Mr.Simon, thc Colorado[Mr.ArMsTroNa],the Sena tana [Mr.BuRNs],the Senator from tor from Wisconsin IMr.KAsTen1,and theSenatorfromMinnesotafMr. BoscHwirz]wereaddedas cosponsors of S. 2l11,a bill designating the monthiofMayas"Aslan/Pacific AmerlcanHerltage Month" S,2637 At the request of Mr.Rein,thc namesoftheSenatorfromPennsylvania {Mr.Hernz]and theSenator from Vermont{Mr.JEFForns]wereaddedas cosponsors of S.2637.a bil1 to amend theToxicSubstancesActtoreduce Lhelevelsof lead intheenvironmcnt, and for otherpurposes.
18U.S.C.§3565(1988)(emphasisnddcd).a Atthe lineof Smith'sInital senteneing, thedistrictcourtwasrequired toapplythc thestatutorymaximunfortheoffense Df guidelines.‘Thus,the guidelines,as well ns convletion,determined what sentenccswere "avallable'at that timu,[7] Before the distrletcourtcouldlmposeaproper sentence under the guidelincs,t has tomakc flnd. didbyadoptingthe findings in theproba. IngsoffactconcernlngSmith'stotaloffense level and eriminalhistory category,which it tonofflcer's orlginalreportwlthoutobjec. tion from clther party.Naturally,thc facts establishedatthetimeofinitalsentencing couldinclude only conduct thathad already occurred,Because the conduct thatconstitutedaprobatlonvlolationhadnotyetoc. curred,noupward adjustment In Smith's totaioffenselevelcouldhavebeenbasedon that conduct,and the longer sentence ofIm prlsonmentresultingfrom such anadjustment was therefore not "avallable."Thus, pursuantto section3565,the guidelines con. troltheImpositionofanewsentenceafter probationrevocatlonIn thesensethat the orlginal determlnntionsoftotaloffense level and criminalhistory category.based uponrelevantfacts established atthe time ofsentencing,delimit the sentences that werethen avallable.Theprobation officer's use of the guldelines-adding thebase of. fenselevelforthepost-sentencing_conduct thatviolatedprobatlontothetotaloffense levelfortheoffense[*8]ofconviction-was clearlyincorrectinHightofsection3565. 8.2729
Atthc request of Mr.CHAFEE,the namesoftheSenatorfromCalifornia Massachusetts IMr. KENNEnyl, and thc Senator fromHawaii{Mr.AxAkA] [Mr.CRANsToN].tho Senatorfrom sources Act,and for other purposes. bill to amend the CoastalBarrferRewere added as cosponsors of S.2729，a
At the request of Mr. BiDEN,thc {Mr. Fowlen] was added as a cospon. nameoftheSenatorfromGeorgia sorofS.2754,abilltocombatviolence andcrimesagainstwomenonthe streets and inhomes.
impositionofa threc-yeartermofsuper. Inthe case at hand,the distrlct court's lencing range for a Ctass C feiony.Sce id. visedreleasefellwlthinthcapplicablesen 6D1.2(b)2)（offense isClnss Cfclonyf statutorytcrmisfromtentotwenty-fivc years).Supcrvlsed release is mandatory. however,only ifa prlson sentence ofmore In sueh casesas theoneathand,wherethe appllcableprisonsentenceIslessthanone than one yearls Imposed,seeid.g5D1.1(a); year,the court. has dllscretlon wlth respecl to supervlsed release,sce id.5D1.1(b）.In vlewofthe court'serroneous imposhtlon of a sentence exceeding one year,we cannot knowwhetherthecourtwouldhaveimposeda term of supervised rclcasehad it cx. forc,onremand,districtcourt should declde ercised Its dlscretion n the matter.rhere. notonlywheretosentenceSinithwithln thefour-to ten-monthrangebutalsowhcth cr[*1i]tolmposoatermofsupervisedre. lease,and,if thc court so decldes,fts dura tion.For thcse purposes,the court may con. slderSmith'sconductonprobatfon. III. S.2796
Atthe request of Mr.CoHEN,the nameoftheSenatorfromConnecticut [Mr.LiEBERMAN] waS added aS a co. sponsor of S.2796,abill to amend title IVoftheHigherEducationAetof 1965toallowresidentphyslclansto deferrepaymentof theirtitleIVstudentloanswhilecompletlngaresldent trainingprogramaccreditedbytheAccreditatlonCouncllforGraduateMedlcalEducatlonortheAccreditingCommitteeoftheAmericanOsteopathlc Assoclatlon.
Therelevantfactsbefore thecourtat the time ofinitialsentencingalso determine whetherandtowhiatextentthedistrict courtmaydepartfronthe guidelinesafter probation revocation,Ifat that tlme thc courthadbeforeitinformatlonthatwould have justified a departure,the court may rc. vlslt those facts and,based upon them,nay sentence.In such a case,the sentence de. choosetodepartwhenimposingthenew partingfrom the guidelines wasnvailableat the tine of initlal sentencing,although the courtdidnotatthattimechoosetodepart oreventtoldentifytheinformationihat supported a possible depnrturc. Thc proper extentofthcdeparture(subjectto the statutorlly prescribed sentencing range)de. pends,ofcourse,upon the relevantscntenc-
S.2813 At thc request ofMr.GRAHAM,the sorof S.2813,abil1toauthorizethe namcoftheSenatorfromAlabama [Mr.SHELBy] was added as a cosponminting of commemorative colns to supportthetrainingofAmericanathletesparticlpatinginthe1992Olymplc Games,
Smith's sentence andremand the case to For the foregolng reasons,we vacate the dlstrict courtforresentencingconsistentwlththisopinlon. Vacated andremanded.
ADDITIONALCOSPONSORS S.2964
S,2044 At the request of Mr.BiDEN, the nameoftheSenatorfromGeorgla [Mr.Nunn]was added asa cosporsor of S.2044,a bill to require tuna prodctstobelabeledrespectingthe At the request of Mr.Dopp,the namesoftheSenatorfromDelaware [Mr.BiDEN],the Senator from Massachusetis[Mr.KeNNEDy],theSenator from Nebraska{Mr,KERREY],theSenator from Nevada [Mr.BrxAN],the Senator from Maryland IMs.MikULsk1],andtheSenatorfromNewYork [Mr.MoYNiHAN] were added as cosponsors of S. 2954, a bill to place re-
1 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 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.” Id. § 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).
3 United States v. Booker , 543 U.S. 220, 226–27 (2005); Gall v. United States , 552 U.S. 38, 46 (2007).
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 I .
5 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 II , 96 F.4th at 1301.
6 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).
7 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.
8 Moon Seals's argument gets loose here. He explicitly briefs how the district court’s not employing Moore I 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 I 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.
9 Though Moon Seals says that no court has ever employed a two-step framework as Moore I 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 (5th Cir. 2020) (per curiam); United States v. Buckholt , 799 F. App’x 252, 253 (5th 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 )
v. Garfinkle , 162 F.3d 1174 (10th Cir. 1998) (unpublished table opinion). None thoroughly discuss the legislative history that we considered in Moore I . 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 (5th 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).
1 Superseded by statute as recognized in United States v. Cook , 291 F.3d 1297, 1300 n.3 (11th Cir. 2002).
2 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. Id.
3 The Sentencing Reform Act of 1984 had bipartisan backing. Senate cosponsors 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 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).
6 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. Id. 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.
7 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.
8 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.
S.3180.A bll1 to amend provlslons of tltle 18.United States Code,relating toterins ofImprisonmentandsupervisedreleasefollowingrevocationofn termofsupervisedrelease:tothe Committee on the Juduciary.
Mr.THURMOND.Mr.President, todayIrisetointroducelegislation whlchwililmplementvarioustechnical and clarifyingproposals related to therevocationofsupervlsedrelease and probatlon.This importantmeasureIscosponsoredbySenator BiDEN and Senator KENNEDy.These proposals were suggesled to me by the U.S. SentencingCommission withthe desirethattheymightbepromptly enactedsothatthe supervisedrelease componentofsentenceswlllfunction as Congressintended.
Regarding the history ofthe U.S. Sentencing Commission,In 1984,I workedwith Senator BiDEN,Senator KENNeDx,and other colleagues ou the Judiciary Committee and In the SenatetoformulatetheSentencing ReformActwhichwasenactedInto lawaspartoftheComprehensive Crime ControlAclof 1984,The SentencingReform Actfocusedon two major problemsinthoFederalcrinlnaljustice system:First,the disparity insentencesimposedonIndlvidualsprinted inthe RecoRD. conyictedofsinilarcrimes;and second,theactualtimeservedbywere ordered tobeprlntedinthe thoseconvlctedofcrimeswhichwasRecorn,as follows:
Anexceptlon to thisrulewould occurif,pursu. ant to 3583（ey(2）,thecourt had exlended the term ofsupervlsedrelease beyond the orlglnnl term imposed.ln thts case,currcntlawwouldallow
1Parakraph（4)ofsectlon 3553(a)rcquires courts toconsider guldejines forInltialsentencingdecl. slons issued by the Conmisslon under 28 U.8.c. 994（a)(1).Paragraph （5)ofsectlon 3553（n)re3qulrescourts to constderpolleystatcmenlslssued
Under the Comprehensive Crime Control Aet of 1984,probatlon ls a type ofsentence in and of tself.See 18 U.S.C.358l （1988);S.Rep.No.225, 98th Cong.,2d Sess.88,reprinted In 1984 U.S.Code Cong.&Admin,News 3182.3271,Under prlor law, the courtwouldeither（1)suspend thelmpostlon ofsentence and putthe defendant onprobatlon,or 92)lmpose aprison sentence,suspend ts executlon, andputthe defendanton proballon.See18 U.8.C. 3051(1982)(rcpealcd1986).
See,e.g.,supra note 3:Sentencing Ouldellnes 7AI.2（a).
Sectlon3585,as amended In1988,requlresrevo. caltonwhen adefendantonprobatlogisfound tobe j0possesslon ofa controlled substance.Sce18 U.S.C.3665(a).The terms ofthe amendment applyonlytopersonswhose probatlonsbeganafter December 31,1988,however.and therefore do not apply to thiscase.See Pub.L.100-000,title V11, 7303(d),102 Stat,4181,4464.