UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-50900
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
HUMBERTO PENA,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
October 7, 1997
Before JONES, EMILIO M. GARZA and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Defendant-Appellant Humberto Pena (“Pena”) appeals his
sentence imposed after revocation of probation. We affirm
FACTS AND PROCEEDINGS BELOW
Pena pleaded guilty in April 1996 to one count of illegal
transportation of aliens. Pena’s total offense level of 9 and his
Category I criminal history score resulted in a guideline
imprisonment range of four to ten months. The district court
sentenced Pena to a five-year term of probation, with no prison
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time. On September 10, 1996, the Government moved to revoke Pena’s
probation, asserting that Pena, since his sentencing, had been
arrested for possession of drug paraphernalia and had twice tested
positive for marijuana, cocaine and morphine use. Pena pleaded
true to the charges. The district court found that the most
serious of the charges was a “grade C violation” under the
Sentencing Guidelines and that Pena’s guideline imprisonment range
upon revocation of probation was three to nine months. See
U.S.S.G. 1§ 7B1.1(a)(3), 7B1.4(a). The district court, however,
revoked Pena’s probation and sentenced him to two years in prison,
reasoning that “primarily what this man needs [is] to . . . clean
out his body for about two years and see if he can’t get the cure.”
DISCUSSION
Pena contends that the district court erred in not sentencing
him within the range set forth for probation revocation in Chapter
7 of the Sentencing Guidelines. This court “will uphold a sentence
unless it (1) was imposed in violation of law, (2) resulted from an
incorrect application of the guidelines, (3) was outside the
guideline range and is unreasonable, or (4) was imposed for an
offense for which there is no applicable sentencing guideline and
is plainly unreasonable.” United States v. Teran, 98 F.3d 831, 836
(5th Cir. 1996).
If a defendant violates a condition of probation, the district
court, after a hearing, may revoke the sentence of probation and
resentence the defendant under Subchapter A, the General Provisions
section which deals with sentences, found at 18 U.S.C. §§ 3551-
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3559. See 18 U.S.C. § 3565(c). Section 3553(a) lists, inter alia,
the following factors that the court “shall consider” in imposing
a sentence:
(2) the need for the sentence imposed . . .
(D) to provide the defendant with needed
education or vocational training, medical
care, or other correctional treatment in the
most effective manner;
(4) the kinds of sentences and the sentencing range
established for . . .
(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 section 994(a)(3) of
Title 28, United States Code;
(5) any pertinent policy statement issued by the
Sentencing Commission pursuant to 28 U.S.C. § 994(a)(2)
that is in effect on the date the defendant is
sentenced[.]
18 U.S.C. § 3553(a). Implicit consideration of the § 3553(a)
factors is sufficient. Teran, 98 F.3d at 836.
However, “[b]ecause there are no applicable guidelines for
sentencing after revocation of probation, see U.S.S.G., Ch. 7,
Pt.A.1 (‘At this time, the Commission has chosen to promulgate
policy statement only.’),” this court will uphold a resentencing
following probation revocation “unless it is in violation of law or
is plainly unreasonable.” Teran, 98 F.3d at 836 (citing United
States v. Mathena, 23 F.3d 87 (5th Cir. 1994)(involving revocation
of supervised release)); see also United States v. Escamilla, 70
F.3d 835, 835 (5th Cir. 1995)(policy statements in Chapter 7 of the
Sentencing Guidelines are not “binding”), cert. denied, 116 S. Ct.
1368 (1996). Pena’s arguments that his sentence is a departure
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from applicable Guidelines without proper notice and on an invalid
basis is foreclosed by Teran’s holding that there are no Guidelines
promulgated for probation revocation.
Pena argues that our holding in United States v. Williams, 961
F.2d 1185 (5th Cir. 1992) prohibits the sentence imposed in this
case. In Williams, this court held that “when a defendant is being
sentenced after the revocation of his probation, the district court
may not upward depart from the guidelines range based upon the
defendant’s conduct occurring after the original sentencing.” Id.
at 1187. The court stated that, although the district court may
depart upward from the guideline sentence, it “must do so on the
basis of information which was before the court and would have
justified a departure at the original sentencing.” Id. The
Williams holding is not instructive in the present case because it
was based on a previous version of 18 U.S.C. § 3565(a), which
provided that the district court may “impose any other sentence
that was available under subchapter A at the time of the initial
sentencing.” Id.; see § 3565(a)(2)(1984). The 1994 Amendments to
§ 3565 substituted “resentence the defendant under subchapter A”
for the statutory language under consideration in Williams. Pena
urges us to follow two of our sister circuits which have held that
the amended statute continues to give a district court the
authority to resentence a probation violator only within the range
of sentences available at the time of the initial sentence. See
United States v. Iversen, 90 F.3d 1340, 1345 & n.6 (8th Cir. 1996);
United States v. Plunkett, 94 F.3d 517, 519 (9th Cir. 1996). Teran
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and Mathena are at least instructive on the issue of whether this
circuit should adopt such a restrictive reading of the current
statute. Indeed, Teran and Mathena could reasonably be read to
even foreclose such a reading. We therefore decline to follow the
Eighth and Ninth Circuit authority. Because there are no
guidelines for sentencing on revocation of probation, and because
the district court was not limited to the sentencing range
available at the time of the initial sentence, we find no error in
the trial court’s failure to employ the analysis normally required
in departure case. See Koon v. United States, ___U.S.___, 116 S.
Ct. 2035, 135 L. Ed. 2d 392 (1996).
We must, however, determine whether the sentence imposed was
“plainly unreasonable.” See Teran, 98 F.3d at 836. Pena
characterizes the sentence as unreasonable because it was imposed
as a punishment for his status as a drug addict, which is
unconstitutional. See Robinson v. California, 370 U.S. 660, 667
(1962)(statute criminalizing status of drug addiction
unconstitutional). It is undisputed that Pena repeatedly violated
the conditions of his probation by using at least different
controlled substances. The sentence punishes the violation of the
terms of his probation, not his drug addict status. Further, it
was undisputed at the revocation hearing that Pena needed in-
patient treatment for his drug addiction. The probation officer
advised the district court that an intensive 500-hour drug
rehabilitation program would be available to Pena while he was
serving his sentence with the Bureau of Prisons. The district
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court specifically included the 500-hour program in its order
revoking Pena’s probation. Not only was Pena’s need for drug
rehabilitation an appropriate consideration, it falls within 18
U.S.C. § 3553(a)(2)(D)’s mandate that the court shall consider the
need for “medical care or other correctional treatment in the most
effective manner.” Finally, the twenty-four month term of
imprisonment was within the statutory range of punishment for
Pena’s offense of conviction and was thus clearly legal.
Concluding that Pena’s sentence was imposed for an offense for
which there is no applicable sentencing guideline and that it is
not plainly unreasonable, United States v. Teran, 98 F.3d 831, 836
(5th Cir. 1996), we affirm.
AFFIRM.
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