United States Court of Appeals,
Eleventh Circuit.
No. 95-4311
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Carlos Alberto HURTADO-GONZALEZ, Defendant-Appellant.
Feb. 12, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 87-386-CR-JWK), James W. Kehoe, District
Judge.
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Carlos Alberto Hurtado-Gonzalez ("Hurtado") appeals
his sentence imposed by the United States District Court for the
Southern District of Florida. For the reasons that follow, we
affirm.
I. BACKGROUND FACTS
A federal grand jury in the Southern District of Florida
indicted Hurtado in a three-count indictment charging: (1)
possession of counterfeit currency with the intent to defraud, in
violation of 18 U.S.C. §§ 472 and 2; (2) the importation of
counterfeit currency into the United States with the intent to
defraud, in violation of 18 U.S.C. §§ 472 and 2; and (3)
conspiracy to possess and to import into the United States
counterfeit currency with the intent to defraud, in violation of 18
U.S.C. § 371. The criminal conduct that formed the basis for the
indictment occurred prior to May 29, 1987.
Hurtado went to trial on the charges against him and was
convicted on all three counts. The district court sentenced
Hurtado to eighteen months of imprisonment for his conspiracy
conviction, ordered that he be deported upon completion of his term
of imprisonment, and suspended his sentence on the remaining two
counts of conviction for a probation period of five years following
his release from prison. During the probationary period, Hurtado
was required—among other things—to refrain from violating any law
of the United States or the several states and to reenter the
United States only with the written permission of the Attorney
General. The sentence Hurtado received was not imposed under the
then-newly enacted United States Sentencing Guidelines ("U.S.S.G."
or "the Guidelines"), because Hurtado's criminal conduct occurred
prior to the Guidelines' effective date of November 1, 1987. See
United States v. Burgess, 858 F.2d 1512, 1514 (11th Cir.1988)
(holding that the Guidelines are not applicable to criminal
offenses committed before November 1, 1987).
Hurtado was duly deported after his release from prison, but
he thereafter returned to the United States during his probationary
period and engaged in additional criminal conduct, namely, drug
trafficking. Hurtado eventually pled guilty to conspiracy to
possess cocaine with the intent to distribute, and he was sentenced
to another term of imprisonment by the United States District Court
for the Middle District of Florida. While serving that sentence,
Hurtado was brought back before the United States District Court
for the Southern District of Florida for a probation revocation
hearing based on his illegal reentry and subsequent commission of
a federal drug offense. The district court stated at the hearing
that it would not consider Hurtado's illegal reentry into the
United States "as far as his probation violation" was concerned,
but it nevertheless found that Hurtado had violated a condition of
his probation "by committing an additional [criminal] offense"
during his probationary period (R2:6).
Having found a violation sufficient to revoke Hurtado's
probation, the district court moved on to the sentencing stage of
the hearing. At that stage, Hurtado's counsel noted as "an
interesting factor" that Hurtado's sentencing range under the
Guidelines would have been ten to sixteen months, but next stated
that "[t]he important thing is ... the Court does have the
discretion to give [Hurtado] any sentence it wants" (R2:11). The
district court exercised its discretion and sentenced Hurtado to
five years of imprisonment on each of the two counts of conviction
for which sentence had originally been suspended in 1987. The
district court decided that these two sentences would run
concurrently with each other, but that they would run consecutively
to the sentence Hurtado had received for his cocaine conspiracy
conviction.
Hurtado objected to his sentence, again noting that under the
Guidelines his sentencing range would only have been ten to sixteen
months. Specifically, Hurtado's counsel stated:
[T]his is originally not a Guideline sentence, but because a
defendant who is facing this case would be under the
Guidelines today, since the law has changed to make it more
favorable for Mr. Hurtado, I think the court—it behooves me to
not [sic] request that the Court sentence Mr. Hurtado as he
would be if the Guidelines were in effect for his sentence and
that sentence would be substantially less than the five year
sentence he is receiving for the, as the court has just
imposed (R2:17).
The district court overruled Hurtado's objection, and this appeal
ensued.
II. ISSUE
Hurtado raises one issue on appeal: Whether a probation
violation for a pre-Guidelines offense is subject to the Sentencing
Guidelines where the conduct resulting in the probation violation
occurred after November 1, 1987.
III. STANDARD OF REVIEW
We review a pre-Guidelines sentence for an abuse of
discretion. United States v. Hall, 47 F.3d 1091, 1099 (11th Cir.),
cert. denied, --- U.S. ----, 116 S.Ct. 71, 133 L.Ed.2d 31 (1995).
IV. ANALYSIS
The question presented in this appeal is one of first
impression in this circuit. Persuasive authority from the Second
Circuit, however, holds that "where a defendant was originally
sentenced prior to the Guidelines, the Guidelines are inapplicable
to sentencing following revocation of probation." United States v.
Vogel, 54 F.3d 49, 51 (2d Cir.1995). The Second Circuit found that
the plain language of 18 U.S.C. § 3565(a), which controls probation
revocations, governed. Id. at 50. That section provides that when
a defendant violates a condition of probation, the court "may
revoke the sentence of probation and impose any other sentence that
was available ... at the time of the initial sentencing." 18
U.S.C. § 3565(a). The court thus concluded that § 3565(a) freed
the district court from having to apply the Guidelines when
imposing a prison sentence following revocation of pre-Guidelines
probation because the Guidelines "were not applicable to [Vogel's]
original criminal conduct and ... were therefore unavailable at the
time of his original sentencing." Vogel, 54 F.3d at 50.
The only basis Hurtado provides for rejecting the Second
Circuit's reasoning is that sentencing him under the Guidelines
would promote the Guidelines' goal of sentencing uniformity. This
claim fails on various grounds. First, "uniformity in sentencing"
appears not to be a goal of the Guidelines insofar as probation
revocations are concerned. The Sentencing Commission has expressly
decided to issue only "advisory policy statements" on probation
revocation rather than to promulgate mandatory guidelines in order
to "provid[e] greater flexibility to ... the courts," which of
course opens the door to less uniform sentencing. U.S.S.G., Ch. 7,
pt. A, p.s. 3(a). Second, ordering a district court to sentence
Hurtado as it would sentence a recently convicted counterfeiter
would not lead to uniform sentencing. To do so would ignore the
fact that Hurtado was given the opportunity to avoid imprisonment
altogether by obeying his probation conditions—an opportunity he
forfeited by committing additional crimes. Third, to adopt
Hurtado's approach would create serious ex post facto problems in
cases where the Guidelines call for a greater sentence than a
district court might otherwise impose.
Finally, and most importantly, this court has held that
defendants sentenced under the Guidelines must, upon the revocation
of their probation, be sentenced in accordance with the sentences
available at the time they were originally sentenced. See United
States v. Smith, 907 F.2d 133, 135 (11th Cir.1990); United States
v. Granderson, 969 F.2d 980, 984-85 (11th Cir.1992), cert. denied,
--- U.S. ----, 113 S.Ct. 3059, 125 L.Ed.2d 742 (1993); United
States v. Milano, 32 F.3d 1499, 1502 (11th Cir.1994). Thus, Smith,
Granderson, and Milano, like Vogel, rely on the premise that under
§ 3565(a) a district court is limited in sentencing a defendant
after probation revocation only by whatever limits existed when it
originally sentenced the defendant to probation. Because the
Guidelines did not apply when the district court initially
sentenced Hurtado to probation, the Guidelines cannot now limit the
district court in sentencing Hurtado for the probation violation.
See Vogel, 54 F.2d at 51. Accordingly, for the foregoing reasons,
we affirm Hurtado's sentence.
AFFIRMED.