UNITED STATES COURT OF APPEALS
Filed 1/21/97
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-1192
(D.C. No. 93-CR-181-Z)
PATRICK DEAN VOGT, (D. Colo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY, EBEL, and HENRY, Circuit Judges. **
Defendant-Appellant Patrick Dean Vogt was convicted pursuant to 18
U.S.C. § 371 and 8 U.S.C. § 1325(b) of conspiracy to assist in a co-defendant’s
marriage for the purpose of evading the immigration laws on August 19, 1993.
* This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
** After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
Vogt was sentenced to three years probation, with the special condition of 90 days
home detention, a $250 fine, and 100 hours community service
In November 1995, the district court held a probation violation hearing
because of Vogt’s repeated positive drug test results, which indicated ongoing
marijuana use, and because of his failure to attend urinalysis testing and drug
abuse counseling in October 1995. After the hearing, the district court revoked
Vogt’s probation and sentenced him to four months in prison, followed by two
years supervised release. Vogt did not object to the new sentence at that time.
On March 26, 1996, Vogt filed a “Motion for Modification and/or
Clarification of Sentence” pursuant to 28 U.S.C. § 2255. Vogt challenged the
imposition of both supervised release and imprisonment, claiming that such
penalty was barred by the sentencing laws and our decision in United States v.
Rockwell, 984 F.2d 1112, cert. denied, 508 U.S. 966 (1993). In Rockwell, we
held that under 28 U.S.C. § 3583, a district court revoking supervised release may
impose as a sanction either imprisonment or extended supervised release, but not
both. Id. at 1117. Vogt also claimed that the length of the new sentence,
combined with the time he had already spent on probation, impermissibly
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exceeded the maximum sentence available when he was initially sentenced. 1 The
district court denied Vogt’s motion, and Vogt now appeals.
This case is distinguishable from Rockwell because Vogt had not
previously been sentenced to supervised release, but was instead sentenced to
probation, a punishment governed by a different provision of the sentencing laws
which explicitly allows the district court to “resentence” the defendant “to a
sentence that includes a term of imprisonment” upon the revocation of probation
based on a controlled substance violation. 18 U.S.C. § 3565(a)(2), (b).
Moreover, under the sentencing guidelines, time spent on probation is not credited
toward the length of punishment when probation is revoked and a new sentence is
imposed. U.S.S.G. (Policy Statement) § 7B1.5. Instead, when revoking probation
under 18 U.S.C. § 3565(a)(2), the district court may resentence the defendant to
any sentence available under subchapter A of the sentencing laws, which consists
of the general statutory provisions requiring the district courts to consider the
sentencing guidelines in formulating sentences. 18 U.S.C. § 3551-59.
Accordingly, we now affirm the district court’s order imposing imprisonment and
supervised release for Vogt’s violation of the terms of his probation.
1
The maximum statutory sentence available when Vogt was initially
sentenced was five years imprisonment and/or a $250,000 fine, 8 U.S.C. §
1325(b); 18 U.S.C. § 371. The applicable guideline range was 0-6 months
imprisonment, 0-3 years supervised release, and/or a $0-5,000 fine, or three years
probation. U.S.S.G. Ch. 5.
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Discussion
The statute governing revocation of probation provides that when a
defendant violates a condition of his probation, the district court may “revoke the
sentence of probation and resentence the defendant under subchapter A [the
general provisions of the sentencing laws, 18 U.S.C. § 3551-59].” 18 U.S.C. §
3565(a)(2). Where, as here, the violation occurs because the defendant is found
to have possessed a controlled substance during his probation period, “the court
shall revoke the sentence of probation and resentence the defendant under
subchapter A to a sentence that includes a term of imprisonment.” Id. § 3565(b)
(emphasis added). 2 Thus, when Vogt violated his conditions of probation through
2
The current language of 18 U.S.C. § 3565, which was enacted in
1994, differs from that in effect when Vogt was initially sentenced. The pre-1994
version provided that, upon a violation of the terms of probation, the district court
could “revoke the sentence of probation and impose any other sentence that was
available at the time of initial sentencing.” 18 U.S.C. § 3565(a)(2) (1988)
(emphasis added). Where the violation involved possession of a controlled
substance, the pre-1994 statute provided “the court shall revoke the sentence of
probation and sentence the defendant to not less than one third of the original
sentence.” Id. (emphasis added). We held that language required the district court
to resentence the defendant to a sentence including a prison term not less than one
third that available when he was initially sentenced to probation. United States v.
Diaz, 989 F.2d 391, 393 (10th Cir. 1993).
The current version of § 3565, which was in effect when Vogt was
resentenced, applies to this case for several reasons. First, the current version
instructs the district court to resentence the defendant pursuant to subchapter A of
the sentencing statutes, and the relevant provision of subchapter A, 18 U.S.C. §
3553, was effective as of September 13, 1994. Pub. L. 103-322 § 80001(c), 108
Stat. 1985 (1994). Second, the 1994 amendments to § 3565 were apparently
(continued...)
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his marijuana use, the district court was obligated to resentence him to a sentence
that included a prison term, and was permitted to impose any additional sentence
allowable under subchapter A.
The relevant provision in subchapter A is 18 U.S.C. § 3553(a), which
provides:
The court, in determining the particular sentence to be
imposed, shall consider--
(4) the kinds of sentence and the sentencing range established
for--
(A) the applicable category of offense committed by the
applicable category of defendant as set forth in the guidelines
issued by the Sentencing Commission pursuant to 994(a)(1) of
(...continued)
aimed at clarifying what one member of the Supreme Court that year described as
a “wretchedly drafted statute . . . ,” United States v. Granderson, 114 S. Ct. 1259,
1270 (1994) (Scalia, J., concurring), rather than creating substantially different
requirements. Third, when probation is revoked the defendant is “resentence[d].”
18 U.S.C. § 3565(a). In other contexts we have held that where resentencing
occurs the district court should apply the sentencing laws in effect on the date of
resentencing. See United States v. Ziegler, 39 F.3d 1058, 1063-64 n. 2 (10th Cir.
1994) (holding that where sentence is vacated on appeal, district court should on
remand apply sentencing guidelines in effect on the date of resentencing).
Fourth, the district court is to apply the sentencing laws in effect on the date of
sentencing unless application of those laws would violate the Ex Post Fact Clause
of the Constitution. United States v. Gerber, 24 F.3d 93, 96 (10th Cir. 1994)
(holding that Ex Post Facto clause is violated where guideline (1) is applied to
events occurring before its enactment, and (2) disadvantages the defendant).
There are no ex post facto problems here because the current version of § 3565,
which requires only a sentence that “includes” imprisonment, is less severe than
the previous version, which required a prison term of “at least one third of the
original sentence.”
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title 28, United States Code, and that are in effect on the date
the defendant is sentenced; or
(B) in the case of 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.
We believe that 18 U.S.C. § 3553(a)(4) requires the district court, in cases
involving revocation of probation or supervised release, to consider the guidelines
issued pursuant to 28 U.S.C. § 994(a)(3) in resentencing the defendant. That
provision authorizes the Sentencing Commission to issue guidelines or policy
statements “regarding the appropriate use of the provisions for revocation of
probation set forth in section 3565 of title 18, and the provisions for modification
of supervised release and revocation of supervised release set forth in section
3583(e) of title 18.” 28 U.S.C. § 994(a)(3). The Sentencing Commission has
issued policy statements concerning violations of probation and supervised
release, and those statements are contained in Chapter 7 of the Guidelines
Manual. U.S.S.G. Ch. 7. Accordingly, in resentencing a defendant after a
violation of the terms of probation or supervised release, the district court must
first consider the policy statements contained in Chapter 7.
We recognize that the Eighth and Ninth Circuits have concluded that 18
U.S.C. § 3553(a)(4) affords the district court discretion to consider either the
revocation and modification sentencing ranges contained in Chapter 7 or the
initial sentencing ranges contained in Chapter 5. United States v. Iverson, 90
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F.3d 1340, 1345 (8th Cir. 1996); United States v. Plunkett, 94 F.3d 517 (9th Cir.
1996). In reaching that conclusion, the Ninth Circuit relied on the use of the
disjunctive term “or” between 18 U.S.C. § 3553(a)(4)(A) and 18 U.S.C. §
3553(a)(4)(B). Plunkett, 94 F.3d at 519. We find that reasoning unpersuasive.
Congress’s use of the term “or” does not mean that the district court may rely on
either provision of § 3553(a)(4) in resentencing a defendant after a probation or
supervised release violation; instead, in context it simply means that the district
court should use § 3553(a)(4)(B) in the subset of sentencing cases involving
violation of probation or supervised release. Our interpretation follows from the
well-established canon of construction that specific provisions of statutes control
the general ones in cases where the specific provision is applicable. Crawford
Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987); In re Gledhill, 76
F.3d 1070, 1078 (10th Cir. 1996). It is doubtful that Congress could have more
clearly stated that, in formulating sentences, district courts are generally to
consider the guidelines promulgated pursuant to 28 U.S.C. § 994(a)(2), while in
cases concerning revocation of probation or supervised release they are to
consider the applicable guidelines or policy statements issued pursuant to §
994(a)(3). 3
3
We have previously held that the policy statements contained in
Chapter 7 are “‘advisory rather than mandatory in nature.’” United States v.
(continued...)
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Vogt’s sentence was within the range of sentences available under Chapter
7 upon revocation of his probation. The policy statements in Chapter 7 suggest a
term of 4-10 months imprisonment for a Grade C probation violation by a person
with a Category II Criminal History such as Vogt, U.S.S.G. (Policy Statement) §
7B1.4, 4 and note that imprisonment coupled with supervised release is a proper
sentence upon revocation of probation. Id. (Policy Statement) § 7B1.3(g)(1). The
four months imprisonment and two years supervised release imposed by the
district court is well within the allowable range. 5
Vogt contends that imposition of both imprisonment and supervised release
upon revocation of his probation was impermissible under our decision in
(...continued)
Hurst, 78 F.3d 482, 483 (10th Cir. 1996) (quoting United States v. Lee, 957 F.2d
770, 773 (10th Cir. 1992)). However, in reaching that conclusion we also held
that consideration of the Chapter 7 policy statements during resentencing upon
revocation of probation or supervised release is “mandatory.” Hurst, 78 F.3d at
483. Thus, Hurst and Lee are fully consistent with our conclusion here that
Chapter 7 provided the sentencing range applicable to Vogt upon revocation of
his probation.
4
The parties do not dispute that Vogt’s probation violation was a
Grade C violation.
5
Vogt’s sentence is consistent with both the initial guideline range
from Chapter 5 and the revocation range from Chapter 7, and the district court did
not state which chapter of the guidelines it relied on in calculating Vogt’s
sentence. However, any erroneous reliance on Chapter 5 was harmless in this
case because the actual sentence imposed was within the applicable Chapter 7
range, and the government has not cross-appealed the district court’s sentencing
determination.
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Rockwell, 984 F.2d at 1117. However, Rockwell is not on point. Supervised
release is a distinct punishment from probation, and the statutory provision which
governed revocation of supervised release at the time Rockwell was decided is
quite different from that which governs revocation of probation. The supervised
release statute at issue in Rockwell stated that, upon a violation of the terms of
supervised release, the district court could
(2) extend a term of supervised release . . . .;
(3) revoke a term of supervised release, and require the defendant to
serve in prison all or part of the term of supervised release
authorized by statute for the offense. . . .; or
(4) order the defendant to remain at his place of residence during
nonworking hours . . . .
18 U.S.C. § 3583(e) (1988) (emphasis added). 18 U.S.C. § 3583(g) further
provided that
If the defendant--
(1) possesses a controlled substance . . . .;
the court shall revoke the term of supervised release and require the
defendant to serve a term of imprisonment not to exceed the
maximum term of imprisonment authorized under subsection (e)(3).
18 U.S.C. § 3583(g) (1988). Thus, under that version of the statute, the
district court generally could either impose imprisonment or supervised
release for a violation of the conditions of supervised release, 18 U.S.C. §
3583(e)(2)-(3), and was required to impose imprisonment where the
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violation consisted of possession of a controlled substance. Id. § 3583(g);
Rockwell, 984 F.2d at 115-17 (discussing then-current version of 18 U.S.C.
§ 3583). 6 Because the alternatives available under § 3583(e) upon
revocation of supervised release were framed in the disjunctive, only prison
could be imposed when prison was required by § 3583(g). Rockwell, 984
F.2d at 115-17.
Conversely, the probation revocation statute does not limit the types
of sentences available to the district court, but instead provides that the
court may “revoke the sentence of probation and resentence the defendant
under subchapter A.” 18 U.S.C. § 3565(a)(2). Where, as here, the
violation occurs because the defendant is found to have possessed a
controlled substance during his probation period, “the court shall revoke
the sentence of probation and resentence the defendant under subchapter A
to a sentence that includes a term of imprisonment.” Id. § 3565(b)
(emphasis added). We have expressly recognized that the district court
retains flexibility upon revocation of probation under 18 U.S.C. §
3565(a)(2) “‘to structure a new sentence that may include probation,
6
Since Rockwell, Congress has amended 18 U.S.C. § 3583 to allow
precisely the practice we rejected in that case, i.e., the imposition of both
imprisonment and supervised release following a revocation of supervised release.
18 U.S.C. § 3583(h).
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incarceration, fines, and supervised release,’” in addition to a prison term.
United States v. Diaz, 989 F.2d 391, 392 (10th Cir. 1993) (quoting United
States v. Behnezhad, 967 F.2d 896, 899 (9th Cir. 1990)). Thus, the
probation revocation provision requires only that resentencing be conducted
according to subchapter A, and that the new sentence include a prison term
in cases involving a controlled substance violation. Those requirements
were met in this case.
Vogt further argues that the total length of his new sentence,
combined with the time he spent on probation prior to resentencing,
exceeds that which was available at the time he was initially sentenced, and
is thus impermissible. It is error for a court to apply a sentencing range
higher than that allowed by the sentencing guidelines and the statutory
provisions governing revocation. See United States v. Smith, 907 F.2d 133
(11th Cir. 1990) (finding error in consideration of statutory maximum
rather than guideline range in resentencing upon revocation of probation);
see also United States v. Maltais, 961 F.2d 1485, 1486 (10th Cir. 1992)
(finding initial guideline sentencing range, rather than higher U.S.S.G.
Chapter 7 revocation range, applicable where defendant was initially
sentenced before Chapter 7 was adopted). However, Vogt’s new sentence
does not exceed the range available under the sentencing guidelines. When
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probation is revoked, the district court is not permitted to give the
defendant credit for time spent on probation in calculating the length of the
new sentence imposed. U.S.S.G. (Policy Statement) § 7B1.5(a) (“Upon
revocation of probation, no credit shall be given . . . for any period of the
term of probation served prior to revocation.”). When the time spent on
probation is disregarded, Vogt’s sentence is well within the authorized
limits.
The sentence imposed by the district court was within the range
allowed by the relevant provisions of the sentencing laws. Accordingly, the
decision of the district court is AFFIRMED.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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