[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 22, 2006
No. 05-12647
THOMAS K. KAHN
CLERK
D. C. Docket No. 02-80101 CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARY MITSVEN,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Florida
(June 22, 2006)
Before DUBINA, KRAVITCH and JOHN R. GIBSON*, Circuit Judges.
DUBINA, Circuit Judge:
__________________
*Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
Appellant, Gary Mitsven (“Mitsven”), appeals the district court’s imposition
of supervised release as part of Mitsven’s sentence following his probation
revocation. For the reasons that follow, we affirm.
I. BACKGROUND
A federal grand jury in the Southern District of Florida indicted Mitsven
with several drug related charges. Mitsven pled guilty to one count of the
indictment. The probation officer prepared a presentence investigation report
(“PSI”), which indicated a sentencing guideline range of 21 to 27 months
imprisonment. In March 2003, the district court sentenced Mitsven to a term of
five years probation, explaining at the later revocation hearing that it sentenced
Mitsven to probation in recognition of his efforts to assist the Government.
On July 13, 2004, Mitsven’s probation officer filed a petition to revoke
probation, informing the district court that Mitsven unlawfully used or possessed a
controlled substance, refused to submit to a drug test, failed to submit monthly
reports for May and June 2004, failed to notify his probation officer on three
occasions regarding changes in employment, twice failed to participate in an
approved treatment program, and violated the law based on his state arrest for
possession of various controlled substances and paraphernalia. Mitsven appeared
before a magistrate judge for an initial appearance on the alleged violations.
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Mitsven admitted the violations, and the magistrate judge recommended that the
district court find Mitsven guilty of violating the terms of his probation.
On April 22, 2005, the district court conducted a revocation hearing, noting
that the applicable guideline imprisonment range for the underlying offense was
21 to 27 months. After some discussion, the district court indicated that it would
sentence Mitsven to one year and one day imprisonment. However, when the
district court learned that Mitsven would only receive credit for time he served in
federal custody, it reduced the sentence from one year and one day to four months
imprisonment. The district court noted that the sentence would be followed by a
three year term of supervised release.
Mitsven filed a motion to correct sentence, requesting that the district court
strike his term of supervised release. Mitsven argued that when he was sentenced
on April 22, 2005, the district court sentenced him pursuant to 18 U.S.C. §
3565(b), which does not mandate that a term of supervised release be imposed.
Mitsven asserted that when a defendant is sentenced for a violation of probation,
he is sentenced for that violation and not for the offense for which he was placed
on probation. On the contrary, the Government claimed that the district court re-
sentenced Mitsven for his original offense, and because the court imposed a term
of imprisonment, it was statutorily required to impose a minimum three year term
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of supervised release, in accordance with 21 U.S.C. § 841(b)(1)(C). After
considering the arguments of Mitsven and the government, the district court
denied Mitsven’s motion to correct his sentence.
II. ISSUE
Whether the district court erred in concluding that it was required to impose
a term of supervised release following a sentence of imprisonment imposed for a
probation violation.
III. STANDARD OF REVIEW
“This court reviews de novo the legality of a sentence, including a sentence
imposed pursuant to revocation of a term of supervised release.” United States v.
Pla, 345 F.3d 1312, 1313 (11th Cir. 2003) (citation omitted). Moreover, this court
generally reviews a district court’s revocation of probation for an abuse of
discretion. See United States v. Frazier, 26 F.3d 110, 112 (11th Cir. 1994) (using
this standard of review for reviewing revocation of supervised release).1
IV. ANALYSIS
Mitsven’s principal argument in this appeal is that the district court erred in
concluding that it was required to impose a term of supervised release in addition
1
The analysis of the revocation proceedings relating to probation and supervised release are
“essentially the same.” See United States v. Almand, 992 F.2d 316, 318 n.5 (11th Cir. 1993).
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to a sentence of imprisonment for a probation violation. Although Mitsven
acknowledges that the governing statute, 18 U.S.C. § 3565(b), requires a term of
imprisonment be imposed after the revocation of probation, Mitsven asserts that it
does not require that a term of supervised release also be imposed. Mitsven claims
that nowhere in § 3565(b) or other relevant code sections, is supervised release
mandated. He contends that a term of supervised release would only be required if
his original sentence had included a term of imprisonment.
On the contrary, the Government responds that the district court did not
misinterpret the statutory scheme that governs the revocation of probation, and it
correctly sentenced Mitsven to a mandatory term of supervised release. The
Government notes that § 3565(b) requires that a sentence be imposed under
subchapter A to include a term of imprisonment. The Government contends that
subchapter A instructs the court to impose a term of imprisonment as authorized
by subchapter D, which states that a defendant be placed on supervised release if it
is required by statute. The Government also asserts that subchapter D requires the
court to look to the statute of the underlying offense of the conviction to determine
if supervised release is required. The Government argues that because the statute
governing Mitsven’s underlying conviction – 21 U.S.C. § 846 – in its applicable
penalty provision mandates a minimum term of three years of supervised release
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following a term of imprisonment, the court was required to impose a term of
supervised release. In sum, the Government contends that, pursuant to the
statutory scheme, Mitsven had to be sentenced to a term of imprisonment, which,
in turn, required that he be sentenced to a statutorily mandated term of supervised
release.
A district court has authority to sentence a defendant after a probation
revocation pursuant to 18 U.S.C. § 3565. United States v. Cook, 291 F.3d 1297,
1299 (11th Cir. 2002). The court is required to revoke a defendant’s probation if
the defendant: (1) possesses a controlled substance; (2) possesses a firearm; (3)
refuses to comply with drug testing; or (4) as part of the drug testing, tests positive
for illegal controlled substances more than three times over the course of one year.
18 U.S.C. § 3565(b). This section also mandates that, upon revocation of
probation, the court re-sentence the defendant under subchapter A to a sentence
that includes a term of imprisonment. Id. Subchapter A, which is 18 U.S.C. §§
3551-3559, contains general provisions regarding the imposition, review, and
implementation of sentences. Subchapter A, 18 U.S.C. § 3551(b)(3), instructs the
court to impose a term of imprisonment as authorized by subchapter D.
Subchapter D contains general provisions governing terms of imprisonment. See
18 U.S.C. §§ 3581-3586. Of particular relevance within subchapter D is 18 U.S.C.
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§ 3583, which governs the inclusion of a term of supervised release after
imprisonment and states that:
The court, in imposing a sentence to a term of imprisonment for a
felony or a misdemeanor, may include as a part of the sentence a
requirement that the defendant be placed on a term of supervised
release after imprisonment, except that the court shall include as a
part of the sentence a requirement that the defendant be placed on a
term of supervised release if such a term is required by statute . . . .
18 U.S.C. § 3583(a). In interpreting § 3583(a), we have held that “district courts
are authorized to impose a period of supervised release as a consequence of
probation revocation.” United States v. Hobbs, 981 F.2d 1198, 1199 (11th Cir.
1993).
In the present case, Mitsven admitted the allegations contained in the
petition to revoke probation, which included the allegations that he unlawfully
used or possessed a controlled substance and refused to submit to a drug test.
Because of Mitsven’s admissions, the district court was required to revoke his
probation and re-sentence him under subchapter A to a sentence that included a
term of imprisonment. See 18 U.S.C. § 3565(b)(1), (3). Subchapter A required
the district court to take into consideration the general provision of subchapter D,
which, as stated above, permits a court to impose a term of supervised release
following a sentence of imprisonment, except where the term of supervised release
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is required by statute, then the court is required to impose a term of supervised
release. Thus, the crux of Mitsven’s appeal is whether the term “statute,”
referenced in § 3583(a)’s requirement that a term of supervised release be imposed
where “required by statute,” includes the statute of the underlying conviction. We
conclude that it does.
In Mitsven’s case the statute of the underlying conviction is 21 U.S.C. § 846
and its applicable penalty provision, 21 U.S.C. § 841(b)(1)(C). This statute states,
in part, that “any sentence imposing a term of imprisonment under this paragraph
shall, in the absence of such a prior conviction, impose a term of supervised
release of at least 3 years in addition to such term of imprisonment.” 21 U.S.C. §
841(b)(1)(C). If the term “statute” includes the statute of the underlying
conviction, then the district court correctly interpreted the term and properly
sentenced Mitsven to a minimum three year term of supervised release.
We have not specifically addressed this question in our circuit. In Cook, we
held that a district court is authorized to re-sentence a defendant upon revocation
of probation without being restricted by the guidelines range applicable at the time
of the initial sentencing hearing. 291 F.3d at 1300. The court must only comply
with subchapter A of the Code when sentencing the defendant. Id. However, we
did not state that the district court could not look to the original statute of
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conviction when imposing a sentence for probation violation; we stated that the
district court was not confined by the original sentence of conviction. See id.
Another case from our circuit, Hobbs, 981 F.2d at 1199, gives district courts the
authority to impose a term of supervised release upon revocation of probation if
they so chose, but it does not resolve the instant issue of whether a court is
required to look to the statute of the underlying offense to determine if a term of
supervised release is “required by statute” as stated in subchapter D.
In United States v. Vasquez, 160 F.3d 1237, 1238 (9th Cir. 1998), the Ninth
Circuit found that the plain meaning of the language of 18 U.S.C. § 3583(a) is that
upon a revocation of probation, a court may impose a term of imprisonment
followed by a term of supervised release. The court also noted that, “it is settled
that a probation revocation resubjects the violator to resentencing for the
underlying crime; the sentence imposed is thus for the original criminal offense,
rather than for the conduct that led to the revocation.” Id. at 1239. We agree.
This court’s review of criminal sentences is limited by statute. Under 18
U.S.C. § 3742(a), this court may inquire only into whether the sentence was
“imposed in violation of law,” was “a result of an incorrect application of the
sentencing guidelines,” or was “plainly unreasonable.” Mitsven cannot show that
his sentence satisfies any of these inquiries. His sentence was not imposed in
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violation of the law because the revocation statute mandates a term of
imprisonment upon a finding of probation revocation. Although there is nothing
in this statute which requires the imposition of supervised release in addition to a
term of imprisonment, there is nothing in this statute which states that the district
court cannot impose supervised release upon revocation of probation.
Alternatively, the imposition of supervised release is required under § 3583(a) if it
is mandated in the statute that establishes the underlying conviction. Thus, we
conclude that Mitsven cannot show that the district court imposed supervised
release in violation of the law.
Additionally, Mitsven’s sentence was not the result of an incorrect
application of the sentencing guidelines because the revocation guidelines are
advisory, not binding. See U.S.S.G. Ch. 7, pt. A(1), (3)(a); Cook, 291 F.3d at
1301; United States v. Albright, 67 Fed. Appx. 751, 755-56 (3d Cir. 2003). Nor
can Mitsven show that his sentence was unreasonable. Mitsven’s probation
violations were classified as Grade A because they involved a controlled substance
offense. See U.S.S.G. § 7B1.1(a)(1). Upon finding a Grade A violation, the court
shall revoke probation. U.S.S.G. § 7B1.3(a)(1). Based on Mitsven’s criminal
history category of III, the guideline imprisonment range for a Grade A violation
is 18 to 24 months, pursuant to § 7B1.4(a). The revocation guidelines are
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advisory, and the court has discretion to impose any sentence within the statutory
term as long as it takes the guidelines into consideration. See Cook, 291 F.3d at
1301-02.
Mitsven was convicted of conspiracy to manufacture and to possess with
intent to distribute marijuana, in violation of 21 U.S.C. § 846. The applicable
penalty provision is 21 U.S.C. § 841(b)(1)(C), which provides that “any sentence
imposing a term of imprisonment under this paragraph shall, in the absence of
such a prior conviction, impose a term of supervised release of at least 3 years in
addition to such term of imprisonment.” When Mitsven was sentenced to a term
of probation, no term of supervised release was required by the statutory scheme.
However, when Mitsven was subject to the provisions of a mandatory revocation,
he had to receive a term of imprisonment. Thus, because of the language of the
underlying statute of conviction, the district court was required to impose a term of
supervised release because it was sentencing Mitsven to a term of imprisonment.
The court correctly looked to Mitsven’s original sentencing guideline range, as
calculated in the PSI, then allowed credit for time served and imposed a four-
month term of imprisonment. See United States v. Peterson, 394 F.3d 98, 103 (2d
Cir. 2005) (stating that under 18 U.S.C. § 3565, a person found to have violated
probation is subject to all the penalties available to the court at the time of his
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initial sentencing). See also U.S.S.G. Ch.7, pt. A(2)(a) (stating that the court may
revoke probation and impose any other sentence that initially could have been
imposed). We conclude that this sentence is neither in violation of the law nor
unreasonable.
V. CONCLUSION
For the above-stated reasons, we conclude that the district court did not err
in finding that it was required to sentence Mitsven to a term of supervised release
when it revoked his term of probation. Because revocation of Mitsven’s probation
was mandatory and required that he be sentenced to imprisonment, the district
court correctly imposed a minimum three year term of supervised release.
Moreover, because the district court did not err in interpreting the statutory
scheme, we affirm Mitsven’s sentence.
AFFIRMED.
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