                                                                           RECOMMENDED FOR FULL-TEXT PUBLICATION
4    United States v. Hudson                      No. 99-1035                   Pursuant to Sixth Circuit Rule 206
                                                                       ELECTRONIC CITATION: 2000 FED App. 0113P (6th Cir.)
                                                                                   File Name: 00a0113p.06
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 COURT OF APPEALS
United States v. West, 59 F.3d 32, 35 (6th Cir. 1995). There                      FOR THE SIXTH CIRCUIT
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           UNITED STATES OF AMERICA,
                                                                                                      
something of a split among the circuits on this issue. In                    Plaintiff-Appellee,
                                                                                                      
reaching the result we do here, we are persuaded to follow the

                                                                                                      
approach taken by the Fifth Circuit in United States v. Pena,                                            No. 99-1035
125 F.3d 285 (5th Cir. 1997), cert. denied, 118 S.Ct. 1527                     v.
                                                                                                      
(1998), as the better reasoned one, and thus to reject that of                                         >
the Eighth Circuit in United States v. Iversen, 90 F.3d 1340        STEVEN HUDSON,                    
(8th Cir. 1996). Iversen appears to rest on a misinterpretation             Defendant-Appellant. 
of a Ninth Circuit opinion, United States v. Plunkett, 94 F.3d                                       1
517 (9th Cir. 1996), which, contrary to the defendant’s
insistence on appeal, does not hold that the sentence imposed             Appeal from the United States District Court
for a probation violation cannot exceed the sentence originally        for the Eastern District of Michigan at Ann Arbor.
available.                                                              No. 96-90043—George C. Steeh, District Judge.

  For the reasons set out above, we AFFIRM the judgment of                        Argued: February 4, 2000
the district court.
                                                                              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,


                                                                                               1
2    United States v. Hudson                     No. 99-1035      No. 99-1035                         United States v. Hudson            3

ASSISTANT UNITED STATES ATTORNEY, Detroit,                           The defendant insists that because the sentencing range for
Michigan, for Appellee.                                           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
                        OPINION                                   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
  MARTHA CRAIG DAUGHTREY, Circuit Judge. The                      that in sentencing for a probation violation, the district court
defendant, Steven Hudson, appeals his sentence, imposed           was authorized to impose any sentence that was available “at
upon revocation of his probation, alleging that the district      the time of the initial sentencing.” However, § 3565 was
court erred in sentencing him to a term of incarceration in       amended in 1994 to delete the phrase “at the time of initial
excess of the range applicable on the original charge. For the    sentencing.” Hence, the statute now authorizes the court to
reasons set out below, we affirm the district court’s judgment.   “revoke the sentence of probation         and resentence the
                                                                  defendant under subchapter A.”1
   In 1997, Hudson pleaded guilty to a charge of theft of
government property and was sentenced to a term of two              As a result, when assessing the penalty for a probation
years’ probation, plus payment of a special assessment and        violation, the district court is not restricted to the range
restitution. He was subsequently charged with two separate        applicable at the time of the initial sentencing. Instead, the
violations of his conditions of probation. After his second       sentence need only be consistent with the provisions of
probation violation hearing, the district court revoked           subchapter A, the general provisions for sentencing set out at
Hudson’s probation and sentenced him to a term of nine            18 U.S.C. §§ 3553 et seq. The specific provision of
months in custody, recommending placement in a community          subchapter A that addresses sentencing for a probation
treatment center. Hudson appeals this order, and he appeals       violation is § 3553(a)(4)(B):
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     The court, in determining the particular sentence to be
motion to correct sentence within the time limits set by Rule       imposed, shall consider . . . in the case of a violation of
35(c), we have no jurisdiction to review that determination.        probation or supervised release, the applicable guidelines
We note, moreover, that the gist of the defendant’s complaint       or policy statements issued by the Sentencing
does not fall within the ambit of Rule 35(c), because the           Commission pursuant to section 994(a)(3) of title 28,
sentence in this case clearly was not “imposed as a result of       United States Code.
arithmetical, technical or other clear error,” as required by
Rule 35(c).                                                       Section 994(a)(3), however, deals only with the promulgation
                                                                  of guidelines and policy statements and in no way restricts the
  Instead, the substantive question raised on appeal is           sentencing court to imposition of a sentence no greater than
whether the district court correctly applied §7B1.4 of the        that originally applicable to the defendant. Moreover, as we
sentencing guidelines, in light of the legislative mandates of    have frequently pointed out, § 3553(a)(4)(B) merely directs
18 U.S.C. § 3565 and 18 U.S.C. § 3553. We review this
question de novo.
                                                                      1
                                                                       This amendment was in place at all times pertinent to the conviction
                                                                  and sentencing of the defendant in this case.
