U.S. v. Pena

• Decision Date: 07 October 1997
• Docket Number: No. 96-50900,96-50900
• Citation: 125 F.3d 285
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Humberto PENA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 285

125 F.3d 285

UNITED STATES of America, Plaintiff-Appellee, v. Humberto PENA, Defendant-Appellant.

No. 96-50900.

United States Court of Appeals Fifth Circuit.

Oct. 7, 1997.

Richard L. Durbin, Jr., Asst. U.S. Attorney, Joseph H. Gay, Jr., Asst. U.S. Atty., San Antonio, TX, for Plaintiff-Appellee.

Kurt Juergen Mayer, Del Rio, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before JONES, EMILIO M. GARZA and PARKER, Circuit Judges.

PARKER, Circuit Judge:

Defendant-Appellant Humberto Pena ("Pena") appeals his sentence imposed after revocation of probation. We affirm.

FACTS AND PROCEEDINGS BELOW

Pena pleaded guilty in April 1996 to one count of illegal transportation of aliens. Pena's total offense level of 9 and his Category I criminal history score resulted in a guideline imprisonment range of four to ten months. The district court sentenced Pena to a five-year term of probation, with no prison time. On September 10, 1996, the Government moved to revoke Pena's probation, asserting that Pena, since his sentencing, had been arrested for possession of drug paraphernalia and had twice tested positive for marijuana, cocaine and morphine use. Pena pleaded true to the charges. The district court found that the most serious of the charges was a "grade C violation" under the Sentencing Guidelines and that Pena's guideline imprisonment range upon revocation of probation was three to nine months. See U.S.S.G. §§ 7B1.1(a)(3), 7B1.4(a). The district court, however, revoked Pena's probation and sentenced him to two years in prison, reasoning that "primarily what this man needs [is] to ... clean out his body for about two years and see if he can't get the cure."

DISCUSSION

Pena contends that the district court erred in not sentencing him within the range set forth for probation revocation in Chapter 7 of the Sentencing Guidelines. This court "will uphold a sentence unless it (1) was imposed in violation of law, (2) resulted from an incorrect application of the guidelines, (3) was outside the guideline range and is unreasonable, or (4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable." United States v. Teran, 98 F.3d 831, 836 (5th Cir.1996).

If a defendant violates a condition of probation, the district court, after a hearing, may revoke the sentence of probation and resentence the defendant under Subchapter A, the General Provisions section which deals with sentences, found at 18 U.S.C. §§ 3551- 3559. See 18 U.S.C. § 3565(c). Section 3553(a) lists, inter alia, the following factors that the court "shall consider" in imposing a sentence:

(2) the need for the sentence imposed ...

(D) to provide the defendant with needed education or vocational training, medical care, or other correctional treatment in the most effective manner;

(4) the kinds of sentences and the sentencing range established for ...

(B) in the case of a 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;

(5) any pertinent policy statement issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a)(2) that is in effect on the date the defendant is sentenced[.]

18 U.S.C. § 3553(a). Implicit consideration of the § 3553(a) factors is sufficient. Teran, 98 F.3d at 836.

However, "[b]ecause there are no applicable guidelines for sentencing after revocation of probation, see U.S.S.G., Ch. 7, Pt.A.1 ('At this time, the Commission has chosen to promulgate policy statement only.')," this court will uphold a resentencing following probation revocation "unless it is in violation of law or is plainly unreasonable." Teran, 98 F.3d at 836 (citing United States v. Mathena, 23 F.3d 87 (5th Cir.1994) (involving revocation of supervised release)); see also United States v. Escamilla, 70 F.3d 835, 835 (5th Cir.1995) (policy statements in Chapter 7 of the Sentencing Guidelines are not "binding"), cert. denied, 517 U.S. 1127, 116 S.Ct. 1368, 134 L.Ed.2d 533 (1996). Pena's arguments that his sentence is a departure from applicable Guidelines without proper notice and on an invalid basis is foreclosed by Teran's holding that there are no Guidelines promulgated for probation revocation.

Pena argues that our holding in United States v. Williams, 961 F.2d 1185 (5th Cir.1992) prohibits the sentence imposed in this case. In Williams, this court held that "when a defendant is being sentenced after the revocation of his probation, the district court may not upward depart from the guidelines range based upon the defendant's conduct occurring after the original sentencing." Id. at 1187. The court stated that, although the district court may depart upward from the guideline sentence, it "must do so on the basis of information which was before the court and would have justified a departure at the original sentencing." Id. The Williams holding is not instructive in the present case because it was based on a previous version of 18 U.S.C. § 3565(a), which provided that the district court may "impose any other sentence that was available under subchapter A at the time of the initial sentencing." Id.; see § 3565(a)(2) (1984). The 1994 Amendments to § 3565 substituted "resentence the defendant under subchapter A" for the statutory language under consideration in Williams. Pena urges us to follow two of our sister circuits which have held that the amended statute continues to give a district court the authority to resentence a probation violator only within the range of sentences available at the time of the initial sentence. See United States v. Iversen, 90 F.3d 1340, 1345 & n. 6 (8th Cir.1996); United States v. Plunkett, 94 F.3d 517, 519 (9th Cir.1996). Teran and Mathena are at least instructive on the issue of whether this circuit should adopt such a restrictive reading of the current st...