PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5854

MICHAEL P. SCHAEFER,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CR-93-6, CR-91-223)

Argued: June 3, 1997

Decided: August 13, 1997

Before WILKINS, NIEMEYER, and HAMILTON, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Wilkins wrote the opinion, in
which Judge Niemeyer and Judge Hamilton joined.

_________________________________________________________________

COUNSEL

ARGUED: Lyle Joseph Yurko, YURKO & OWENS, P.A., Charlotte,
North Carolina, for Appellant. Robert James Conrad, Jr., Assistant
United States Attorney, Charlotte, North Carolina, for Appellee. ON
BRIEF: N. Todd Owens, YURKO & OWENS, P.A., Charlotte,
North Carolina, for Appellant. Mark T. Calloway, United States
Attorney, William A. Brafford, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.

_________________________________________________________________
OPINION

WILKINS, Circuit Judge:

Following a hearing during which Michael P. Schaefer admitted to
having committed probation violations, the district court determined
that it was "constrained" to impose a sentence within the guideline
range of 46-57 months imprisonment applicable when Schaefer ini-
tially was sentenced. J.A. 108. Schaefer appeals the 46-month sen-
tence subsequently imposed, arguing that the district court erred in
concluding that it lacked discretion to depart downward from the
guideline range. We affirm.

I.

From 1990 to 1992, Schaefer participated in several conspiracies
to defraud investors, ultimately bilking his victims of more than
$800,000. In January 1993, Schaefer pled guilty to conspiring to com-
mit offenses against the United States, see 18 U.S.C. § 371 (1988);
mail fraud, see 18 U.S.C. § 1341 (Supp. V 1994); and wire fraud, see
18 U.S.C. § 1343 (Supp. V 1994). It is undisputed that the guideline
range applicable to Schaefer's sentencing on these charges was 46-57
months imprisonment. But, because Schaefer had assisted law
enforcement authorities in the investigation of his coconspirators, the
Government moved for a downward departure to reward Schaefer for
his substantial assistance. See U.S. Sentencing Guidelines Manual,
§ 5K1.1, p.s. (1993). Rejecting the Government's recommendation of
an active term of imprisonment, the district court drastically departed
from the applicable guideline range and imposed a sentence of five
years probation.

Unbeknownst to the Government, even before his sentencing hear-
ing, Schaefer had resumed his criminal activities while free on bond.
From late 1993 through May 1994, Schaefer conducted a fraudulent
home improvement scheme in Arizona, swindling victims of more
than $90,000. And, several months after his sentencing hearing,
Schaefer moved to Nebraska and continued his criminal conduct,
defrauding victims of at least $288,000. In early 1995, the probation
office filed a petition seeking the revocation of Schaefer's probation

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and the issuance of an arrest warrant. Schaefer absconded and
remained a fugitive until his arrest in May 1995.

In October 1995, the district court conducted a probation violation
hearing. Schaefer admitted committing seven violations of his proba-
tion, including making false representations to his probation officer
concerning his financial information and address and failing to abide
by conditions of his probation that required him to pay restitution, to
refrain from possessing a firearm, and to avoid the commission of any
further state or federal offenses. At the conclusion of the evidentiary
hearing, the district court ruled that Schaefer's probation should be
revoked.

Turning to the question of the appropriate sentence to impose, the
district court accepted the Government's position that the version of
18 U.S.C. § 3565(a)(2) in effect prior to September 1994--the time
during which most of the conduct underlying Schaefer's probation
violations occurred--required that Schaefer be sentenced within the
46-57 month guideline range applicable at his initial sentencing. Con-
sequently, the district court sentenced Schaefer to 46 months impris-
onment. Schaefer now appeals, contending that the district court erred
in concluding that the version of § 3565(a)(2) in effect prior to Sep-
tember 13, 1994 governed his resentencing and, alternatively, that
even if the prior version of the statute was applicable, the district
court was not prohibited from considering a downward departure
from the applicable guideline range.

II.

Before turning to address Schaefer's arguments, it is necessary to
frame them with an understanding of the background of § 3565(a)(2).
Prior to September 1994, if a district court revoked a defendant's pro-
bation, § 3565(a)(2) required that the district court "impose any other
sentence that was available under subchapter A at the time of the ini-
tial sentencing." 18 U.S.C. § 3565(a)(2) (1988). In United States v.
Alli, 929 F.2d 995, 997 (4th Cir. 1991), this court construed
§ 3565(a)(2) to require that "[w]hen probation given under a guideline
sentence is revoked, the court is limited at resentencing to a sentence
that was available at the time of the original sentence." Noting that
"[a]ll of the circuits which have considered this issue have concluded

                    3
that the clear language of § 3565(a)(2) controls, and that upon resen-
tencing, following revocation of probation, the court is limited to a
sentence within the guidelines available at the time of the initial sen-
tence," id. at 998, we rejected the Government's argument that con-
duct giving rise to the probation revocation could provide an
appropriate basis for an upward departure from the guideline range
applicable at the original sentencing, see id. at 998-99. Instead,
although recognizing that consideration of post-sentencing conduct
was appropriate, this court adopted the position taken by the other
courts of appeals and held that a departure from the guideline range
calculated at the initial sentencing would be appropriate only if based
upon a pre-sentencing factor that was brought to the attention of the
district court at the initial sentencing hearing and that would have pro-
vided a proper basis for departure at that time. See id. at 998.

Thereafter, effective in September 1994, § 3565(a)(2) was
amended to require a district court to "resentence the defendant under
subchapter A" if it chose to revoke a sentence of probation. 18
U.S.C.A. § 3565(a)(2) (West Supp. 1997). This amended provision
plainly permits a district court to begin the sentencing process anew
and to impose any sentence appropriate under the provisions of sub-
chapter A, i.e., one that satisfies statutory and guideline requirements.
See 18 U.S.C.A. §§ 3551-3559 (West 1985 & Supp. 1997).

A.

Interestingly, the principal point of contention with respect to
§ 3565(a)(2) has been whether it was appropriate for a district court
to base a departure from the guideline range on a defendant's post-
sentencing conduct. See, e.g., Alli, 929 F.2d at 998. By virtue of the
fact that this question arises in connection with a probation revocation
based on the defendant's post-sentencing misconduct, defendants typ-
ically have taken the position that post-sentencing circumstances may
not appropriately be considered by the district court. See, e.g., id. at
996. Apparently confident, however, that the lenient treatment he had
been accorded previously by the district court would continue, Schae-
fer first contends that the district court erred in applying the version
of § 3565(a)(2) in effect prior to September 1994 and that application
of the amended version of that provision would have permitted the
district court to consider a departure from the applicable guideline

                     4
range based on factors that were not presented during the original sen-
tencing hearing.1

We do not agree that the district court applied the incorrect version
of the statute.2 As a general matter, the law in effect at the time gov-
erns sentencing. See Hughey v. United States, 495 U.S. 411, 413 n.1
(1990); United States v. Diamond, 969 F.2d 961, 967 n.10 (10th Cir.
1992).3 However, 1 U.S.C.A. § 109 (West 1985) provides in pertinent
part:

           The repeal of any statute shall not have the effect to
          release or extinguish any penalty, forfeiture, or liability
          incurred under such statute, unless the repealing Act shall so
          expressly provide, and such statute shall be treated as still
          remaining in force for the purpose of sustaining any proper
          action or prosecution for the enforcement of such penalty,
          forfeiture, or liability.

In United States v. Cook, 890 F.2d 672, 675 (4th Cir. 1989), a
defendant argued that the reclassification of her offense from a Class
B at the time of the offense to a Class C at the time of sentencing ren-
dered her eligible for a sentence of probation. We disagreed, reason-
_________________________________________________________________
1 The Government asserts that we may affirm the decision of the dis-
trict court even if we conclude that Schaefer is correct that the district
court was not "constrained" to sentence him within the original guideline
range. This is so, it maintains, because Schaefer failed to present any
grounds to the district court warranting departure. We disagree that we
could affirm on this record. The sentencing colloquy makes plain that
Schaefer declined to present argument and evidence in support of his
position that a downward departure was appropriate in view of the
announced legal conclusion of the district court that it was bound to sen-
tence him within the original guideline range.
2 Schaefer does not maintain that the district court could have imposed
a departure sentence simply because a portion of the misconduct support-
ing the probation revocation occurred after September 1994.
3 Of course, this general rule--that the law in effect at the time of sen-
tencing applies--is subject to the further exception prohibiting ex post
facto laws. See U.S. Const. art. I, § 10, cl. 1; United States v. Arnold, 947
F.2d 1236, 1237 n.1 (5th Cir. 1991) (per curiam).

                    5
ing that because at the time Cook committed her offense, probation,
by statute, was not a penalty that the district court could impose, and
that since the amending provision did not expressly provide to the
contrary, § 109 foreclosed "a statutory change in offense classification
that occurs between the time of the violation and subsequent sentenc-
ing from making probation an available penalty at sentencing." Id. at
676. This reasoning compels a similar result here. Prior to the Sep-
tember 1994 amendment to § 3565(a)(2), a district court could not
consider post-sentencing conduct as a basis for departure, and thus
was required to impose a sentence within the applicable guideline
range unless a ground supporting departure had been brought to the
attention of the district court during the initial sentencing hearing.
Following the amendment to § 3565(a)(2), the district court was per-
mitted to consider post-sentencing factors as a basis for departure, a
situation that Schaefer acknowledges may lead to a less severe sen-
tence than the one that otherwise would be required. Accordingly,4
§ 109 prevents the district court from applying the amended provi-
sions of § 3565(a)(2) to impose a sentence lower than that allowed
under the former version of § 3565(a)(2).

B.

Schaefer alternatively contends that even if the pre-September
1994 version of § 3565(a)(2) is applicable, the district court neverthe-
less erred in refusing to consider a downward departure from the orig-
inal guideline range. He stresses that our Alli decision indicated that
upon resentencing following a probation revocation, the district court
could correctly consider any "sentence that was available at the time
of the original sentence." Alli, 929 F.2d at 997. Because a downward
departure based on the Government's substantial assistance motion
was available at the time of his original sentencing, Schaefer main-
tains that the district court was not "constrained" to impose a sentence
within the applicable guideline range, and instead could have consid-
ered a downward departure.

Although Schaefer's reasoning is correct as a general matter, under
the specific facts presented here, his argument must fail. In Alli, we
_________________________________________________________________
4 We note that the amendment to§ 3565(a)(2) does not expressly pro-
vide to the contrary.

                    6
did indicate that if circumstances had been presented to the district
court authorizing departure at the initial sentencing hearing, the dis-
trict court could consider those circumstances as a basis for departure
at resentencing on the probation revocation. See id. at 998. However,
we were not called upon in Alli to address the significance of a depar-
ture for substantial assistance under U.S.S.G. § 5K1.1, p.s. Address-
ing that specific issue, we conclude that a departure under § 5K1.1,
p.s. is different from the typical basis for departure, and this differ-
ence dictates a different result. Unlike all other grounds for departure,
in order for a district court to base a departure upon a defendant's
substantial assistance to law enforcement authorities, the Government
must first move the district court to do so. See Wade v. United States,
504 U.S. 181, 184-85 (1992); United States v. Wallace, 22 F.3d 84,
87 (4th Cir. 1994); 18 U.S.C.A. § 3553(e) (West Supp. 1997);
U.S.S.G. § 5K1.1, p.s. Thus, although a sentence based on substantial
assistance may have been available at the initial sentencing based on
the Government's motion, it cannot be considered to be available at
resentencing following a probation revocation absent a renewed
motion by the Government. See United States v. Denard, 24 F.3d 599,
601-02 (4th Cir. 1994) (ignoring downward departure based on sub-
stantial assistance in setting forth initial guideline range for resentenc-
ing on probation revocation); see generally United States v. Redmond,
69 F.3d 979, 981 (9th Cir. 1995). There is no dispute that the Govern-
ment did not renew its prior departure motion, nor does Schaefer
advance any argument that the Government was bound to do so. See
Wallace, 22 F.2d at 87. Accordingly, at the sentencing hearing fol-
lowing the probation revocation, because the Government did not
move for a departure based on substantial assistance, and because the
parties agree that there was no other proper basis for departure
brought to the attention of the court during the initial sentencing hear-
ing, the district court properly concluded that it was constrained to
sentence Schaefer within the applicable guideline range. We therefore
affirm.

AFFIRMED

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