dissenting.
In my view the majority opinion does not follow the teaching of United States v. Thomas, 68 F.3d 392 (10th Cir.1995). In Thomas, we, at the very outset of our opinion, posited that case as one arising “in the context of punishment for a misdemeanor when the state law and the federal sentencing guidelines treat home detention differently.” Although Thomas involved “home detention,” the four months which Horek completed in “community confinement” at a “halfway house” under the rationale of Thomas constitutes imprisonment under the guidelines to the end that, upon subsequent revocation of his probation, Horek could only be sentenced to a maximum term of six months imprisonment, where, as here, the maximum sentence under the applicable statutes and guidelines for the underlying crime is ten months. Ten months minus four months equals six months. In the instant case, the district court, upon revocation of Horek’s probation, sentenced him to imprisonment for nine months, which, under the rationale of Thomas is an “illegal” sentence by three months.
Accordingly, I would reverse and remand for resentencing to no more than six months imprisonment, and credit Horek with the time he has already served in the federal correctional institution in Forest City, Arkansas.