United States of America v. Steven Hudson

4 United States v. Hudson No. 99-1035
the court to consider the relevant policy statements issued by
the Sentencing Commission, the Commission having not seen
fit to issue guidelines under § 994(a)(3). See, e.g., United
States v. Lowenstein, 108 F.3d 80, 84-5 (6th Cir. 1997);
United States v. West, 59 F.3d 32, 35 (6th Cir. 1995). There
is no indication that the district court failed to do so in this
case.
In holding that Hudson’s nine-month sentence was proper
under the applicable statutes, we recognize that there is
something of a split among the circuits on this issue. In
reaching the result we do here, we are persuaded to follow the
approach taken by the Fifth Circuit in United States v. Pena,
125 F.3d 285 (5th Cir. 1997), cert. denied, 118 S.Ct. 1527
(1998), as the better reasoned one, and thus to reject that of
the Eighth Circuit in United States v. Iversen, 90 F.3d 1340
(8th Cir. 1996). Iversen appears to rest on a misinterpretation
of a Ninth Circuit opinion, United States v. Plunkett, 94 F.3d
517 (9th Cir. 1996), which, contrary to the defendant’s
insistence on appeal, does not hold that the sentence imposed
for a probation violation cannot exceed the sentence originally
available.
For the reasons set out above, we AFFIRM the judgment of
the district court.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0113P (6th Cir.)
File Name: 00a0113p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
S TEVEN HUDSON ,
Defendant-Appellant.
;>

1
No. 99-1035
Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
No. 96-90043—George C. Steeh, District Judge.
Argued: February 4, 2000
Decided and Filed: March 30, 2000
Before: WELLFORD, BATCHELDER, and
DAUGHTREY, Circuit Judges.
_________________
COUNSEL
ARGUED: David C. Tholen, FEDERAL PUBLIC
DEFENDERS OFFICE, Detroit, Michigan, for Appellant.
Mark W. Osler, ASSISTANT UNITED STATES
ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF:
David C. Tholen, FEDERAL PUBLIC DEFENDERS
OFFICE, Detroit, Michigan, for Appellant. Mark W. Osler,

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2 United States v. Hudson No. 99-1035
ASSISTANT UNITED STATES ATTORNEY, Detroit,
Michigan, for Appellee.
_________________
OPINION
_________________
MARTHA CRAIG DAUGHTREY, Circuit Judge. The
defendant, Steven Hudson, appeals his sentence, imposed
upon revocation of his probation, alleging that the district
court erred in sentencing him to a term of incarceration in
excess of the range applicable on the original charge. For the
reasons set out below, we affirm the district court’s judgment.
In 1997, Hudson pleaded guilty to a charge of theft of
government property and was sentenced to a term of two
years’ probation, plus payment of a special assessment and
restitution. He was subsequently charged with two separate
violations of his conditions of probation. After his second
probation violation hearing, the district court revoked
Hudson’s probation and sentenced him to a term of nine
months in custody, recommending placement in a community
treatment center. Hudson appeals this order, and he appeals
the order denying his motion to correct sentence, pursuant to
F.R.Cr.P. 35(c). Because the district court did not rule on the
motion to correct sentence within the time limits set by Rule
35(c), we have no jurisdiction to review that determination.
We note, moreover, that the gist of the defendant’s complaint
does not fall within the ambit of Rule 35(c), because the
sentence in this case clearly was not “imposed as a result of
arithmetical, technical or other clear error,” as required by
Rule 35(c).
Instead, the substantive question raised on appeal is
whether the district court correctly applied §7B1.4 of the
sentencing guidelines, in light of the legislative mandates of
18 U.S.C. § 3565 and 18 U.S.C. § 3553. We review this
question de novo.
No. 99-1035 United States v. Hudson 3
1This amendment was in place at all times pertinent to the conviction
and sentencing of the defendant in this case.
The defendant insists that because the sentencing range for
the underlying offense was 0-6 months, the district court
could not impose a sentence greater than six months for
violation of probation, despite the fact that the policy
statement in Guideline § 7B1.4(a), which applies specifically
to probation violations, provides for a sentencing range of 3-9
months. At one time, this argument apparently would have
had merit, because 18 U.S.C. § 3565(a)(2) formerly provided
that in sentencing for a probation violation, the district court
was authorized to impose any sentence that was available “at
the time of the initial sentencing.” However, § 3565 was
amended in 1994 to delete the phrase “at the time of initial
sentencing.” Hence, the statute now authorizes the court to
“revoke the sentence of probation and resentence the
defendant under subchapter A.”1
As a result, when assessing the penalty for a probation
violation, the district court is not restricted to the range
applicable at the time of the initial sentencing. Instead, the
sentence need only be consistent with the provisions of
subchapter A, the general provisions for sentencing set out at
18 U.S.C. §§ 3553 et seq. The specific provision of
subchapter A that addresses sentencing for a probation
violation is § 3553(a)(4)(B):
The court, in determining the particular sentence to be
imposed, shall consider . . . 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.
Section 994(a)(3), however, deals only with the promulgation
of guidelines and policy statements and in no way restricts the
sentencing court to imposition of a sentence no greater than
that originally applicable to the defendant. Moreover, as we
have frequently pointed out, § 3553(a)(4)(B) merely directs

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