                  REVISED, JULY 14, 1997

                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit



                              No. 96-50733



                       UNITED STATES OF AMERICA,

                                                     Plaintiff - Appellee,


                                  VERSUS


                              TERESA BYRD

                                                 Defendant - Appellant.



           Appeal from the United States District Court
                 For the Western District of Texas
                           June 23, 1997


Before JOLLY, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

DUHÉ, Circuit Judge:

     Appellant Teresa Byrd challenges her sentence imposed upon
revocation of her probation.       For reasons that follow, we affirm.

                                     I

     In   1994,   Teresa   Byrd   pleaded   guilty    to   distribution    of

methamphetamine, in violation of 21 U.S.C. § 841(a)(1).                   The

probation officer calculated her net offense level as 25 and her

criminal history score as 0 (“zero”), resulting in an imprisonment

range of 57-71 months under the Sentencing Guidelines. Pursuant to
U.S.S.G. § 5K1.1, however, the Government moved the district court

to depart downward from this range because of Byrd’s cooperation in

a related investigation. The court granted the motion and departed

downward to an offense level of 6, which yields an imprisonment

range of 0-6 months.       In lieu of imprisonment, the court sentenced

Byrd to 5 years of probation.        As part of the standard conditions

of probation, Byrd was prohibited from using controlled substances

and forbidden from associating with convicted felons.

       In 1996, Byrd’s probation officer petitioned the court to

revoke Byrd’s probation, asserting that her urine specimens had

tested    positive   for    controlled     substances      and   that    she   had

associated with convicted felons.          After conducting a hearing, the

district court revoked Byrd’s probation, and pursuant to 18 U.S.C.

§ 3565 (West Supp. 1997)--the relevant statute governing sentencing

upon   revocation    of    probation--sentenced      her    to   57   months    of

imprisonment.    The court based Byrd’s sentence on the pre-downward

departure guidelines range of 57-71 months, overruling Byrd’s

request to be sentenced within the post-departure range of 0-6

months.

       Byrd   appeals     the   district   court’s    sentencing        decision,

contending that the court erred in its decision to sentence her

within the pre-departure range of 57-71 months instead of the post-

departure range of 0-6 months. Byrd asserts first that application

of the current version of 18 U.S.C. § 3565, as amended in September

1994, to her resentencing violates the Ex Post Facto Clause. Under

the former version of § 3565, she insists, the court would have


                                       2
been compelled to base her sentence upon the 0-6 month range.

Alternatively, Byrd maintains that, even if application of the

current version of § 3565 does not violate the Ex Post Facto

Clause, the sentence imposed upon probation revocation must still

be within the 0-6 month range under the amended statute.

                                       II

      The application of a criminal law violates the Ex Post Facto

clause only if:    (1) the law is retrospective, i.e., it applies to

events   occurring    before     its       enactment,    and      (2)    the    law

disadvantages the offender affected by it. See Miller v. Florida,

482 U.S. 423, 430 (1987).       A law is retrospective if it “changes

the legal consequences of acts completed before its effective

date.”   Weaver v. Graham, 450 U.S. 24, 31 (1981).                 Because Byrd

failed to raise her Ex Post Facto contention in the district court,

and under Fed. R. Crim. P. 52(b), we may address her claim only if

(1) there is an error, (2) the error is plain, and (3) the error

affects substantial rights.       See United States v. Olano, 507 U.S.

725, 732 (1993); United States v. Calverley, 37 F.3d 160, 162-64

(5th Cir. 1994) (en banc).      If all three conditions are satisfied,

we may exercise our discretion to correct the error, but only if it

“seriously affect[s] the fairness, integrity or public reputation

of   judicial   proceedings.”     Olano,      507     U.S.   at   732   (internal

quotation marks omitted; alteration in original).

      Assuming,   arguendo,     that    the    1994    amendment    to    §    3565

disadvantages Byrd, we must determine whether Byrd’s acts were

completed before the effective date of the September 1994 amendment


                                       3
to § 3565.    This issue is somewhat complicated, for the conduct

underlying Byrd’s conviction was completed in 1993 (well before the

effective date of the 1994 amendments) but the conduct underlying

the probation revocation did not occur until 1996 (substantially

after the effective date).         If the 57-month sentence imposed upon

Byrd’s probation revocation (pursuant to the amended § 3565)

constitutes the continuing legal consequence of Byrd’s original

conviction, then the Ex Post Facto Clause is implicated because the

acts   underlying   the    conviction         did   indeed    occur    before      the

statute’s    effective    date.     If,       however,      the   punishment      upon

revocation serves as an independent legal consequence of Byrd’s

probation    violation,    then    the       Ex   Post   Facto      Clause   is    not

implicated because the acts underlying the revocation occurred

after the effective date.     See United States v. Beals, 87 F.3d 854,

858 (7th Cir. 1996); United States v. Reese, 71 F.3d 582, 588 (6th

Cir. 1995), cert. denied, 116 S. Ct. 2529 (1996).

       We are aware of only one circuit court opinion focusing on the

Ex Post Facto ramifications of an amendment to a statute governing

probation revocation.      See United States v. Female Juvenile, 103

F.3d 14, 17 n.7 (5th Cir. 1996).             In Female Juvenile, as here, the

defendant committed the underlying crime before the 1994 amendment

to § 3565 but violated her probation after such amendment.                          We

stated, albeit in dicta and without explanation, that application

of § 3565, as amended in 1994, does not violate the Ex Post Facto

Clause    because   the    “acts    which         exposed     the    defendant      to

resentencing under § 3565 [i.e., the acts underlying the probation


                                         4
revocation] occurred after the amendment” to that statute.   Id. at

17 n.7.   Because the only court to face the instant issue has

concluded that there is no Ex Post Facto violation, we conclude

that, if there was error, it was not “clear,”        “obvious,” or

“readily apparent.” See Calverley, 37 F.3d at 163; see also Olano,

507 U.S. at 734.1

                               III

     Having concluded that the district court did not commit plain

error by resentencing Byrd under the amended version of 18 U.S.C.


     1
       Although Byrd recognizes that, aside from Female Juvenile,
there is no case law regarding this precise issue, she asserts that
the district court committed plain error because it failed to
analogize this case to similar situations involving amendments to
statutes governing revocation of parole and supervised release. It
is true, as Byrd asserts, that a significant majority of the
circuits have held that application of amended statutes governing
revocation of parole or supervised release violates the Ex Post
Facto clause when the conduct underlying the conviction occurred
before amendments to those statutes but the conduct underlying the
revocation occurred after the amendments.      For cases involving
parole revocation, see, e.g., Greenfield v. Scafati, 277 F. Supp.
644 (D. Mass.) (three-judge court), aff’d mem., 390 U.S. 713
(1967); Beebe v. Phelps, 650 F.2d 774 (5th Cir. 1981). For cases
involving supervised release, governed by 18 U.S.C. § 3583, see
United States v. Beals, 87 F.3d 854 (7th Cir. 1996); United States
v. Meeks, 25 F.3d 1117 (2d Cir. 1994); United States v. Paskow, 11
F.3d 873 (9th Cir. 1993); United States v. Parriett, 974 F.2d 523
(4th Cir. 1992). But see United States v. Reese, 71 F.3d 582 (6th
Cir. 1995) (finding no Ex Post Facto problem in applying the
amended § 3583).      The policy statements of the Sentencing
Guidelines also suggest that violations of probation should be
treated as punishment for the initial offense and not the conduct
for which probation was revoked. See U.S.S.G., Ch. 7, Pt. A(3)(b).
   Despite the foregoing, we decline to hold that the district
court’s error was plain.     While revocation of probation may be
closely analogous to revocation of parole or supervised release, we
cannot say that any possible error in failing to make such analogy
was so conspicuous that “the trial judge and prosecutor were
derelict in countenancing it, even absent the defendant’s timely
assistance in detecting it.” United States v. Frady, 456 U.S. 152,
163 (1982), quoted in Calverley, 37 F.2d at 163.

                                5
§   3565,   we    now    address   whether      the    district      court     erred    in

sentencing Byrd pursuant to the pre-downward departure range of 57-

71 months.       We review the legality of a criminal sentence de novo.

United States v. Fonts, 95 F.3d 372, 373 (5th Cir. 1996).

      When a defendant violates the conditions of probation by

possessing a controlled substance, the sentencing court is required

to “revoke the sentence of probation and resentence the defendant

under   subchapter        A   to   a   sentence       that   includes      a   term     of

imprisonment.”          18 U.S.C. § 3565(b)(1) (West Supp. 1997).                      The

relevant section in subchapter A directs the court to consider “the

sentencing range established for . . . the applicable guidelines or

policy statements.”           18 U.S.C. § 3553(a)(4)(B) (West Supp. 1997).

Byrd contends that it is unclear whether “the sentencing range

established for . . . the applicable guidelines” refers to the

guidelines range established before the downward departure or

whether the       phrase      refers   to   the   range      after   the     departure.

Because of the alleged ambiguity, Byrd asserts that the “rule of

lenity” requires imposition of the shorter sentence, i.e., that

based upon the post-downward departure range.

      Byrd draws support for her rule-of-lenity argument from United

States v. Granderson, 114 S. Ct. 1259 (1994).                   In Granderson, the

Supreme Court analyzed the resentencing options available under the

pre-1994 version of § 3565, which provided that a defendant who

violates probation by possessing a controlled substance shall be

resentenced “to not less than one-third of the original sentence.”

18 U.S.C. § 3565 (Westlaw 1993).                   The dispute in Granderson


                                            6
concerned    the    proper    interpretation         of    the    phrase   “original

sentence.”    The Government argued that it referred to the term of

probation originally imposed upon the defendant (a period of 5

years), whereas the defendant maintained that it referred to the

guidelines imprisonment range that could have been imposed upon

conviction   (a    range     of   0-6    months).         The    Court   adopted    the

defendant’s position, reasoning that “where text, structure, and

history   fail     to   establish       that   the   Government’s        position   is

unambiguously correct[,] we apply the rule of lenity and resolve

the ambiguity in [the defendant’s] favor.                  Id. at 1267.

     In the last footnote of the opinion, the Court also discussed,

in dicta, application of the rule of lenity to a situation in which

the district court had departed downward from the guidelines to

impose a sentence of probation--a situation very similar to that

which we face today.          The Court noted that in such a situation,

upon revocation of probation, the proper sentence would be “the

maximum of a Guidelines range permitting a sentence of probation.”

Id. at 1269 n.15.         Based on this footnote, Byrd argues that in the

instant   case,     the    guidelines      range     permitting     a    sentence   of

probation is a range of 0-6 months, i.e., her sentencing range

imposed by the court after the downward departure. Although § 3565

has since been amended, Byrd urges us to apply the rule of lenity

because she believes that the current phrasing, “the applicable

guidelines,” is just as ambiguous as the former term, “original

sentence.”    We disagree.

     The textual difference between the current and former statutes


                                           7
is significant.      The former act was retrospective in that it

referred the sentencing court to a particular sentence actually and

previously imposed, i.e., the “original sentence” received by the

defendant.    By contrast, the current act does not refer to a past

sentencing decision; rather, it directs the court to undertake a

new     sentencing   determination        based        upon     the     “applicable

guidelines.”    This difference is critical, for the retrospective

aspect of the former statute was ambiguous insofar as there were

two different sentences that could be termed “original”:                    (1) the

potential    guidelines   imprisonment         range    and    (2)    the   term   of

probation actually imposed.     See Granderson, 114 S. Ct. 1261-62,

1267.     In 1994, however, Congress rectified the ambiguity by

eliminating the retrospectivity, and there is nothing ambiguous

about the directive to resentence a defendant pursuant to the

“applicable guidelines.”       The dispute about whether the term

“applicable    guidelines”   refers       to    the    pre-    or     post-downward

departure range is irrelevant, for it refers to neither such range.

Instead, the term refers to the sentencing guidelines themselves,

which are found in the U.S. Sentencing Commission Guidelines

Manual.    The “applicable guidelines” include, but are not limited

to, those listed in:      Chapter Two, dealing with the particular

offense conduct; Chapter Three, concerning adjustments for the

defendant’s role in the offense; Chapter Four, regarding the

defendant’s    criminal   history;    and,       of    course,       Chapter   Five,

concerning upward and downward departures.                    If the “applicable

guidelines” permit it--as they seem to in the instant case--the


                                      8
sentencing    court   has   discretion,   upon   resentencing   following

revocation of probation, either to depart downward or not to depart

at all.     In no way, however, do the applicable guidelines compel

the court to depart downward.

     This interpretation is perfectly reasonable and does not

suffer from the “linguistic anomalies” that prompted the Supreme

Court to apply the rule of lenity in Granderson.       See 114 S. Ct. at

1264-65.    When undertaking the initial sentencing determination, a

district court has discretion whether to grant or overrule the

government’s motion for downward departure.           A district court

should have the same discretion upon revocation of probation,

especially when confronted with a defendant who has failed to abide

by the conditions of probation.2

                                    IV

     For the foregoing reasons, we AFFIRM Byrd’s sentence.

AFFIRMED.




     2
        Finally, our conclusion is supported by the legislative
history, sparse though it may be. Even before the Supreme Court
decided Granderson, some members of Congress sought to amend § 3565
because the amended statute would make:
   consistent the punishment for unlawful possession of a
   controlled substance . . . by requiring consideration of the
   nature and seriousness of the violation, and other relevant
   considerations, instead of arbitrarily varying the sanction
   according to the length of the initially imposed term of
   probation.
139 Cong. Rec. S2151 (daily ed. Feb. 25, 1993) (statement of Sen.
Thurmond). This statement supports our holding in that it directs
a court to reevaluate the length of punishment based upon factors
relevant to the crime, instead of looking retrospectively to the
length of the original sentence.

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