291 F.3d 1297

UNITED STATES of America, Plaintiff-Appellee, v. Sandra COOK, Defendant-Appellant.

No. 01-15881

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

May 21, 2002.

*1298Thomas Jake Waldrop, Federal Defender Program, Inc., Atlanta, GA, for Defendant-Appellant.

Teresa Hoyt, Atlanta, GA, for Plaintiff-Appellee.

Before TJOFLAT, BIRCH and HULL, Circuit Judges.

PER CURIAM:

The defendant Sandra Cook appeals her sentence of twenty-four months in prison, which was imposed pursuant to 18 U.S.C. § 3565(a)(2) upon the revocation of her probation. After review, we affirm.

I. BACKGROUND

A. Original Sentence

On January 24, 2001, Cook pled guilty to one count of interstate transportation of stolen checks, for which the statutory maximum penalty is ten years in prison. See 18 U.S.C. § 2314. At her sentencing hearing on April 12, 2001, the district court calculated Cook’s base offense level to be 7, with a criminal history category of III, and an applicable guideline range of four to ten months under the United States Sentencing Guidelines. The district court sentenced Cook to a term of three years on probation, plus payment of a special assessment and restitution. The district court stated that it was imposing a modest sentence because it felt that Cook deserved a final opportunity to “get her life straightened out.” Thus, among the conditions of probation, Cook was required (1) to serve four months in a half-way house, (2) to participate in a drug and alcohol treatment program as directed by the probation office, and (3) to refrain from any unlawful use of a controlled substance and submit to drug tests as directed by the probation office. The district court warned Cook that she would receive the “maximum jail time” if she violated the terms and conditions of her probation. On May 30, 2001, Cook entered a half-way house.

B. Modification of Probation

In July 2001, Cook was discharged from the half-way house because she had violated numerous rules. Shortly thereafter, Cook’s probation officer petitioned the court to issue a warrant and order for Cook to show cause why her probation should not be revoked. At a hearing on August 24, 2001, Cook admitted that she had violated her probation. The district court modified Cook’s probation by requiring (1) her placement on a electronic monitoring system for four months and (2) her participation in a mental health aftercare program. The district court also repeated its warning to Cook that she would face *1299the maximum time the court could impose if she violated her probation.

C. Revocation of Probation

Cook continued to have problems complying with the terms and conditions of her probation. On September 4, 2001, Cook’s probation officer again petitioned the court to issue a warrant and order Cook to show cause why her probation should not be revoked. The allegations in this probation revocation petition stated that Cook had tested positive for cocaine use on May 30th and August 24th of that year. Subsequently, this petition was amended to allege additionally that Cook had failed twice to report to random drug screenings and had failed once to report to the probation office.

At a hearing on September 24, 2001, Cook admitted that she had tested positive for drugs on the two occasions alleged in the revocation petition.1 The district court determined that Cook had violated the conditions of her probation and sentenced Cook to twenty-four months in prison with no supervised release to follow. In so doing, the district court explained that Cook had a history of noncompliance with the terms and conditions of her probation, including her termination from the halfway house, her drag usage, and her failure to report as required by the probation office. Moreover, recognizing Cook’s drug problem, the district court specifically requested that Cook receive 500 hours of drug treatment while she was incarcerated.

After the district court imposed the twenty-four month sentence, Cook objected that the sentence exceeded both (1) the four to ten month guideline range available at her initial sentencing and (2) the five to eleven month sentencing range in Chapter Seven of the Sentencing Guidelines. Cook also raises these issues on appeal, which we address in turn.2

II. DISCUSSION

A. Section 3565

Courts have authority to sentence defendants after probation revocations pursuant to 18 U.S.C. § 3565. Under the pre-1994 amendment version of § 3565, district courts were not permitted to impose a greater sentence after revocation of probation than was originally available based on the relevant facts established at the time of the initial sentencing. See United States v. Smith, 907 F.2d 133, 135 (11th Cir.1990). Thus, post-sentencing conduct was relevant to probation revocation proceedings only in terms of influencing the court’s decision to revoke probation and its selection of a sentence within the guideline range available at the initial sentencing. *1300 Id. at 136. Specifically, this prior version of § 3565 required a district court upon revoking a defendant’s probation to “impose any other sentence that was available under subchapter A at the time of the initial sentencing.” 18 U.S.C. § 3565(a)(2) (1988).

In September 1994, Congress amended § 3565(a)(2) by removing the limitation of the sentence to that available at the time of initial sentencing and replacing it with only the requirement that a district court “resentence the defendant under subchapter A.” 18 U.S.C. § 3565(a)(2) (2000). Several other circuits have expressly interpreted the 1994 amendment to § 3565 as empowering the district court to resentence a defendant following revocation of probation without being limited to the sentencing range available at the time of original sentencing. See, e.g., United States v. Hudson, 207 F.3d 852, 853 (6th Cir.2000); United States v. Pena, 125 F.3d 285, 287 (5th Cir.1997); United States v. Schaefer, 120 F.3d 505, 507 (4th Cir.1997) (noting that the amended § 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”).3 We agree that under the plain language of § 3565(a)(2), as amended, a court is authorized to resen-tence a defendant without being restricted to the guideline range applicable at the time of the initial sentencing hearing; instead, a court must only comply with sub-chapter A in sentencing the defendant. See 18 U.S.C. § 3565(a)(2).

The defendant Cook asserts that this Court should follow the Eighth and Ninth Circuits in holding that the district court’s sentencing discretion upon probation revocation continues to be limited to the guideline range available at the time of initial sentencing, even after the 1994 amendment to § 3565. See United States v. Plunkett, 94 F.3d 517, 519 (9th Cir.1996); United States v. Iversen, 90 F.3d 1340, 1345 & n. 6 (8th Cir.1996). A closer examination of the cases cited by Cook, however, reveals that they do not hold that a district court must sentence a probation violator to a sentence available at the time of the initial sentencing hearing, but rather that a district court may sentence a probation violator within the range that was available at the time of the initial sentencing.4

B. Policy Statements in Chapter Seven

Alternatively, Cook argues that even if the sentencing range available at *1301the time of her initial sentencing does not control, the district court erred in imposing a twenty-four month sentence under subchapter A, which is 18 U.S.C. §§ 3551-3559. Subchapter A contains general provisions regarding the imposition, review, and implementation of sentences. Most significant for purposes of this appeal, § 3553(a) lists the factors the district court shall consider in determining the particular sentence to impose. For example, a district court “shall consider ... the need for the sentence imposed ... to provide the defendant with ... medical care, or other correctional treatment.” 18 U.S.C. § 3553(a)(2)(D). In addition, a district court “shall consider ... the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code.” 18 U.S.C. § 3553(a)(4)(B) (emphasis added).5

The Sentencing Commission has not yet promulgated any binding probation revocation guidelines; instead, the Sentencing Commission has opted for the flexibility of advisory policy statements, which are nonbinding on the courts. See U.S.S.G. ch. 7, pt. A(l), (3)(a); United States v. Hofierka, 83 F.3d 357, 361 (11th Cir.1996); United States v. Milano, 32 F.3d 1499, 1503 (11th Cir.1994). One of the policy statements in Chapter Seven of the Sentencing Guidelines contains a table with terms of imprisonment for defendants whose probation periods have been revoked. The .terms of imprisonment in this table are based on the grade of the probation violation and the defendant’s criminal history category at the time of the original sentencing hearing. See U.S.S.G. § 7B1.4; Milano, 32 F.3d at 1501.

Although conceding that the Chapter Seven policy statements and sentencing ranges are not binding, see, e.g., Milano, 32 F.3d at 1503, Cook' argues that the district court erred in sentencing her to twenty-four months in prison because that sentence • is well above the recommended imprisonment range of five to' eleven months that would apply to her under the table in Chapter Seven of the Sentencing Guidelines. See U.S.S.G. § 7B1.4.6 How;*1302ever, § 3558 requires a court only to consider the Chapter Seven policy statements in determining a defendant’s sentence. 18 U.S.C. § 3553(a)(4)(B).

In this case, a review of the transcript from the revocation hearing reveals that the district court determined that the sentence of two years in prison — a sentence beyond the recommended range in Chapter Seven — was necessary, in large part, for purposes of Cook’s drug rehabilitation and treatment.7 Among the factors outlined in § 3553(a) for a district court’s consideration in sentencing is the defendant’s need for correctional treatment. 18 U.S.C. § 3553(a)(2)(D); see United States v. Dunham, 240 F.3d 1328, 1330 (11th Cir.2001) (concluding that the district court did not abuse its discretion in considering the availability of drug treatment in imposing a sentence exceeding that which was recommended in Chapter Seven). Accordingly, we conclude that the district court did not err, nor did it abuse its discretion, in sentencing Cook beyond the Chapter Seven recommended range.

III. CONCLUSION

In summary, the district court did not err in ordering Cook to serve a sentence of twenty-four months in prison because the district court complied with the provisions of subchapter A. For the foregoing reasons, we affirm the district court’s order, dated September 24, 2001, which sentenced Cook to twenty-four months in prison.

AFFIRMED.

United States v. Cook
291 F.3d 1297

Case Details

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United States v. Cook
Decision Date
May 21, 2002
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291 F.3d 1297

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