U.S. v. Maltais
| Decision Date | 15 April 1992 |
| Docket Number | No. 91-8060,91-8060 |
| Citation | 961 F.2d 1485 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Gordon Allen MALTAIS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Submitted on the Briefs: 1
Richard Stacy, U.S. Atty., and Lisa E. Leschuck, Asst. U.S. Atty., Cheyenne, Wyo., for plaintiff-appellee.
Daniel G. Blythe of Rogers, Blythe & Lewis, Cheyenne, Wyo., for defendant-appellant.
Before MOORE, TACHA and BRORBY, Circuit Judges.
Mr. Maltais violated his probation. The sentencing court sentenced him to a longer sentence than it could have originally imposed under the Sentencing Guidelines which were in effect at the time it placed him on probation. Mr. Maltais appeals the sentence. We reverse.
In 1988, Mr. Maltais, a convicted felon, fired approximately 100 rounds at rest rooms and garbage cans on Forest Service property. Mr. Maltais subsequently entered a guilty plea to the charge of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
Mr. Maltais appeared for sentencing in May 1990. His presentence report showed the statutory maximum imprisonment under 18 U.S.C. § 924(a)(1)(B) was five years. The Sentencing Guidelines calculations, after appropriate adjustments, yielded an offense level of three and a criminal history category of III resulting in a Guideline imprisonment range of zero to five months. The sentencing court announced it was delaying the imposition of sentence and placed Mr. Maltais on probation for three years. Conditions of that probation included that Mr. Maltais not commit any crimes, that he refrain from excessive use of alcohol, and that he not use any controlled substances.
In May 1991, the sentencing court received information indicating Mr. Maltais was violating his probation and sent Mr. Maltais a letter warning him that his conduct was jeopardizing the continuation of his probation status. This letter apparently had no effect, for in August of 1991 a urinalysis proved positive for Mr. Maltais' use of alcohol and illegal use of cocaine and marijuana. A petition for revocation of probation was filed charging Mr. Maltais with a conviction of DWUI, a conviction of driving while his driver's license was suspended, and the illegal use of cocaine and marijuana on two occasions. Mr. Maltais admitted his DWUI conviction as well as his illegal use of cocaine and marijuana at the probation revocation hearing.
Between the time Mr. Maltais was originally placed upon probation and the institution of the probation revocation proceeding, the Sentencing Guidelines were amended to create a new chapter dealing with violations of court ordered probation. 2 The new chapter specifically created a different, greater guideline range which takes into consideration defendant's conduct while on probation. Under the new Chapter 7 the sentencing calculus yielded a Guideline range, after appropriate adjustments, of 5 to 11 months. See Sentencing Guidelines § 7B1.4(a).
Not surprisingly, the controversy at the sentencing hearing centered about which Guideline range the sentencing judge should apply: the one in effect when Mr. Maltais was placed on probation or the one then in effect. The sentencing judge applied the Guideline range currently contained in Chapter 7 and on August 27, 1991, sentenced Mr. Maltais to a term of imprisonment of seven months, two more than the guideline maximum as it existed on the day Mr. Maltais was sentenced to probation.
We review de novo the district court's legal interpretation and application of the Sentencing Guidelines. United States v. Norman, 951 F.2d 1182 (10th Cir.1991); United States v. Agbai, 930 F.2d 1447 (10th Cir.1991).
Mr. Maltais argues that revocation of probation is governed by 18 U.S.C. § 3565 () and 18 U.S.C. § 3553(a)(4) (). He argues the plain language of these sections requires use of the sentences available as of the date of the original sentencing when Mr. Maltais was placed on probation.
The government argues Mr. Maltais was not sentenced in 1989 asserting the sentencing court could have departed either up or down. The government contends the sentencing occurred at the revocation hearing when Mr. Maltais was actually sentenced to seven months.
The Sentencing Reform Act and the Sentencing Guidelines both clearly contemplate that a sentencing court must determine the particular sentence to be imposed with reference to the law and Guidelines that are in effect at the time of sentencing. 3 We are persuaded that the plain language of § 3565 in conjunction with § 3553 require a sentencing court to impose only sentences which are available at the time of initial sentencing which, in the case before us, was the date of imposition of probation.
The question we must resolve is when sentencing occurs. Is it when the Defendant is placed upon probation or at the time probation is revoked and the sentencing court both defines and imposes sentence?
The answer is found in 18 U.S.C. § 3551(b). This statute commands that when an individual is found guilty of an offense, the sentencing court shall sentence the individual by imposing a term of probation, a fine, or a term of imprisonment. Congress has dictated, by the use of clear and unequivocal language, that the imposition of a term of probation is the imposition of a sentence. Stated somewhat differently, when a sentencing court imposes probation, it has imposed a sentence. The fact the sentencing court stated it was delaying the imposition of a sentence is irrelevant in the context of this discussion. The sentencing court's comments can only be read as the delay of a sentence of confinement.
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