                   UNITED STATES COURT OF APPEALS
Filed 1/21/97
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
 v.                                                     No. 96-1192
                                                  (D.C. No. 93-CR-181-Z)
 PATRICK DEAN VOGT,                                      (D. Colo.)

       Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before BRORBY, EBEL, and HENRY, Circuit Judges. **


      Defendant-Appellant Patrick Dean Vogt was convicted pursuant to 18

U.S.C. § 371 and 8 U.S.C. § 1325(b) of conspiracy to assist in a co-defendant’s

marriage for the purpose of evading the immigration laws on August 19, 1993.




      * This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

       ** After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
Vogt was sentenced to three years probation, with the special condition of 90 days

home detention, a $250 fine, and 100 hours community service

      In November 1995, the district court held a probation violation hearing

because of Vogt’s repeated positive drug test results, which indicated ongoing

marijuana use, and because of his failure to attend urinalysis testing and drug

abuse counseling in October 1995. After the hearing, the district court revoked

Vogt’s probation and sentenced him to four months in prison, followed by two

years supervised release. Vogt did not object to the new sentence at that time.

      On March 26, 1996, Vogt filed a “Motion for Modification and/or

Clarification of Sentence” pursuant to 28 U.S.C. § 2255. Vogt challenged the

imposition of both supervised release and imprisonment, claiming that such

penalty was barred by the sentencing laws and our decision in United States v.

Rockwell, 984 F.2d 1112, cert. denied, 508 U.S. 966 (1993). In Rockwell, we

held that under 28 U.S.C. § 3583, a district court revoking supervised release may

impose as a sanction either imprisonment or extended supervised release, but not

both. Id. at 1117. Vogt also claimed that the length of the new sentence,

combined with the time he had already spent on probation, impermissibly




                                        -2-
exceeded the maximum sentence available when he was initially sentenced. 1 The

district court denied Vogt’s motion, and Vogt now appeals.

      This case is distinguishable from Rockwell because Vogt had not

previously been sentenced to supervised release, but was instead sentenced to

probation, a punishment governed by a different provision of the sentencing laws

which explicitly allows the district court to “resentence” the defendant “to a

sentence that includes a term of imprisonment” upon the revocation of probation

based on a controlled substance violation. 18 U.S.C. § 3565(a)(2), (b).

Moreover, under the sentencing guidelines, time spent on probation is not credited

toward the length of punishment when probation is revoked and a new sentence is

imposed. U.S.S.G. (Policy Statement) § 7B1.5. Instead, when revoking probation

under 18 U.S.C. § 3565(a)(2), the district court may resentence the defendant to

any sentence available under subchapter A of the sentencing laws, which consists

of the general statutory provisions requiring the district courts to consider the

sentencing guidelines in formulating sentences. 18 U.S.C. § 3551-59.

Accordingly, we now affirm the district court’s order imposing imprisonment and

supervised release for Vogt’s violation of the terms of his probation.


      1
            The maximum statutory sentence available when Vogt was initially
sentenced was five years imprisonment and/or a $250,000 fine, 8 U.S.C. §
1325(b); 18 U.S.C. § 371. The applicable guideline range was 0-6 months
imprisonment, 0-3 years supervised release, and/or a $0-5,000 fine, or three years
probation. U.S.S.G. Ch. 5.

                                         -3-
                                     Discussion

      The statute governing revocation of probation provides that when a

defendant violates a condition of his probation, the district court may “revoke the

sentence of probation and resentence the defendant under subchapter A [the

general provisions of the sentencing laws, 18 U.S.C. § 3551-59].” 18 U.S.C. §

3565(a)(2). Where, as here, the violation occurs because the defendant is found

to have possessed a controlled substance during his probation period, “the court

shall revoke the sentence of probation and resentence the defendant under

subchapter A to a sentence that includes a term of imprisonment.” Id. § 3565(b)

(emphasis added). 2 Thus, when Vogt violated his conditions of probation through


      2
              The current language of 18 U.S.C. § 3565, which was enacted in
1994, differs from that in effect when Vogt was initially sentenced. The pre-1994
version provided that, upon a violation of the terms of probation, the district court
could “revoke the sentence of probation and impose any other sentence that was
available at the time of initial sentencing.” 18 U.S.C. § 3565(a)(2) (1988)
(emphasis added). Where the violation involved possession of a controlled
substance, the pre-1994 statute provided “the court shall revoke the sentence of
probation and sentence the defendant to not less than one third of the original
sentence.” Id. (emphasis added). We held that language required the district court
to resentence the defendant to a sentence including a prison term not less than one
third that available when he was initially sentenced to probation. United States v.
Diaz, 989 F.2d 391, 393 (10th Cir. 1993).
       The current version of § 3565, which was in effect when Vogt was
resentenced, applies to this case for several reasons. First, the current version
instructs the district court to resentence the defendant pursuant to subchapter A of
the sentencing statutes, and the relevant provision of subchapter A, 18 U.S.C. §
3553, was effective as of September 13, 1994. Pub. L. 103-322 § 80001(c), 108
Stat. 1985 (1994). Second, the 1994 amendments to § 3565 were apparently
                                                                        (continued...)

                                        -4-
his marijuana use, the district court was obligated to resentence him to a sentence

that included a prison term, and was permitted to impose any additional sentence

allowable under subchapter A.

      The relevant provision in subchapter A is 18 U.S.C. § 3553(a), which

provides:

             The court, in determining the particular sentence to be

      imposed, shall consider--

             (4) the kinds of sentence and the sentencing range established
             for--
                (A) the applicable category of offense committed by the
             applicable category of defendant as set forth in the guidelines
             issued by the Sentencing Commission pursuant to 994(a)(1) of



             (...continued)
aimed at clarifying what one member of the Supreme Court that year described as
a “wretchedly drafted statute . . . ,” United States v. Granderson, 114 S. Ct. 1259,
1270 (1994) (Scalia, J., concurring), rather than creating substantially different
requirements. Third, when probation is revoked the defendant is “resentence[d].”
18 U.S.C. § 3565(a). In other contexts we have held that where resentencing
occurs the district court should apply the sentencing laws in effect on the date of
resentencing. See United States v. Ziegler, 39 F.3d 1058, 1063-64 n. 2 (10th Cir.
1994) (holding that where sentence is vacated on appeal, district court should on
remand apply sentencing guidelines in effect on the date of resentencing).
Fourth, the district court is to apply the sentencing laws in effect on the date of
sentencing unless application of those laws would violate the Ex Post Fact Clause
of the Constitution. United States v. Gerber, 24 F.3d 93, 96 (10th Cir. 1994)
(holding that Ex Post Facto clause is violated where guideline (1) is applied to
events occurring before its enactment, and (2) disadvantages the defendant).
There are no ex post facto problems here because the current version of § 3565,
which requires only a sentence that “includes” imprisonment, is less severe than
the previous version, which required a prison term of “at least one third of the
original sentence.”

                                        -5-
             title 28, United States Code, and that are in effect on the date
             the defendant is sentenced; or
                (B) in the case of 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.

      We believe that 18 U.S.C. § 3553(a)(4) requires the district court, in cases

involving revocation of probation or supervised release, to consider the guidelines

issued pursuant to 28 U.S.C. § 994(a)(3) in resentencing the defendant. That

provision authorizes the Sentencing Commission to issue guidelines or policy

statements “regarding the appropriate use of the provisions for revocation of

probation set forth in section 3565 of title 18, and the provisions for modification

of supervised release and revocation of supervised release set forth in section

3583(e) of title 18.” 28 U.S.C. § 994(a)(3). The Sentencing Commission has

issued policy statements concerning violations of probation and supervised

release, and those statements are contained in Chapter 7 of the Guidelines

Manual. U.S.S.G. Ch. 7. Accordingly, in resentencing a defendant after a

violation of the terms of probation or supervised release, the district court must

first consider the policy statements contained in Chapter 7.

      We recognize that the Eighth and Ninth Circuits have concluded that 18

U.S.C. § 3553(a)(4) affords the district court discretion to consider either the

revocation and modification sentencing ranges contained in Chapter 7 or the

initial sentencing ranges contained in Chapter 5. United States v. Iverson, 90

                                         -6-
F.3d 1340, 1345 (8th Cir. 1996); United States v. Plunkett, 94 F.3d 517 (9th Cir.

1996). In reaching that conclusion, the Ninth Circuit relied on the use of the

disjunctive term “or” between 18 U.S.C. § 3553(a)(4)(A) and 18 U.S.C. §

3553(a)(4)(B). Plunkett, 94 F.3d at 519. We find that reasoning unpersuasive.

Congress’s use of the term “or” does not mean that the district court may rely on

either provision of § 3553(a)(4) in resentencing a defendant after a probation or

supervised release violation; instead, in context it simply means that the district

court should use § 3553(a)(4)(B) in the subset of sentencing cases involving

violation of probation or supervised release. Our interpretation follows from the

well-established canon of construction that specific provisions of statutes control

the general ones in cases where the specific provision is applicable. Crawford

Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987); In re Gledhill, 76

F.3d 1070, 1078 (10th Cir. 1996). It is doubtful that Congress could have more

clearly stated that, in formulating sentences, district courts are generally to

consider the guidelines promulgated pursuant to 28 U.S.C. § 994(a)(2), while in

cases concerning revocation of probation or supervised release they are to

consider the applicable guidelines or policy statements issued pursuant to §

994(a)(3). 3


       3
            We have previously held that the policy statements contained in
Chapter 7 are “‘advisory rather than mandatory in nature.’” United States v.
                                                                    (continued...)

                                         -7-
      Vogt’s sentence was within the range of sentences available under Chapter

7 upon revocation of his probation. The policy statements in Chapter 7 suggest a

term of 4-10 months imprisonment for a Grade C probation violation by a person

with a Category II Criminal History such as Vogt, U.S.S.G. (Policy Statement) §

7B1.4, 4 and note that imprisonment coupled with supervised release is a proper

sentence upon revocation of probation. Id. (Policy Statement) § 7B1.3(g)(1). The

four months imprisonment and two years supervised release imposed by the

district court is well within the allowable range. 5

      Vogt contends that imposition of both imprisonment and supervised release

upon revocation of his probation was impermissible under our decision in



       (...continued)
Hurst, 78 F.3d 482, 483 (10th Cir. 1996) (quoting United States v. Lee, 957 F.2d
770, 773 (10th Cir. 1992)). However, in reaching that conclusion we also held
that consideration of the Chapter 7 policy statements during resentencing upon
revocation of probation or supervised release is “mandatory.” Hurst, 78 F.3d at
483. Thus, Hurst and Lee are fully consistent with our conclusion here that
Chapter 7 provided the sentencing range applicable to Vogt upon revocation of
his probation.
      4
            The parties do not dispute that Vogt’s probation violation was a
Grade C violation.
      5
             Vogt’s sentence is consistent with both the initial guideline range
from Chapter 5 and the revocation range from Chapter 7, and the district court did
not state which chapter of the guidelines it relied on in calculating Vogt’s
sentence. However, any erroneous reliance on Chapter 5 was harmless in this
case because the actual sentence imposed was within the applicable Chapter 7
range, and the government has not cross-appealed the district court’s sentencing
determination.

                                         -8-
Rockwell, 984 F.2d at 1117. However, Rockwell is not on point. Supervised

release is a distinct punishment from probation, and the statutory provision which

governed revocation of supervised release at the time Rockwell was decided is

quite different from that which governs revocation of probation. The supervised

release statute at issue in Rockwell stated that, upon a violation of the terms of

supervised release, the district court could

      (2) extend a term of supervised release . . . .;

      (3) revoke a term of supervised release, and require the defendant to
      serve in prison all or part of the term of supervised release
      authorized by statute for the offense. . . .; or

      (4) order the defendant to remain at his place of residence during
      nonworking hours . . . .

18 U.S.C. § 3583(e) (1988) (emphasis added). 18 U.S.C. § 3583(g) further

provided that

      If the defendant--

       (1) possesses a controlled substance . . . .;

      the court shall revoke the term of supervised release and require the
      defendant to serve a term of imprisonment not to exceed the
      maximum term of imprisonment authorized under subsection (e)(3).

18 U.S.C. § 3583(g) (1988). Thus, under that version of the statute, the

district court generally could either impose imprisonment or supervised

release for a violation of the conditions of supervised release, 18 U.S.C. §

3583(e)(2)-(3), and was required to impose imprisonment where the

                                      -9-
violation consisted of possession of a controlled substance. Id. § 3583(g);

Rockwell, 984 F.2d at 115-17 (discussing then-current version of 18 U.S.C.

§ 3583). 6 Because the alternatives available under § 3583(e) upon

revocation of supervised release were framed in the disjunctive, only prison

could be imposed when prison was required by § 3583(g). Rockwell, 984

F.2d at 115-17.

      Conversely, the probation revocation statute does not limit the types

of sentences available to the district court, but instead provides that the

court may “revoke the sentence of probation and resentence the defendant

under subchapter A.” 18 U.S.C. § 3565(a)(2). Where, as here, the

violation occurs because the defendant is found to have possessed a

controlled substance during his probation period, “the court shall revoke

the sentence of probation and resentence the defendant under subchapter A

to a sentence that includes a term of imprisonment.” Id. § 3565(b)

(emphasis added). We have expressly recognized that the district court

retains flexibility upon revocation of probation under 18 U.S.C. §

3565(a)(2) “‘to structure a new sentence that may include probation,



      6
             Since Rockwell, Congress has amended 18 U.S.C. § 3583 to allow
precisely the practice we rejected in that case, i.e., the imposition of both
imprisonment and supervised release following a revocation of supervised release.
18 U.S.C. § 3583(h).

                                     - 10 -
incarceration, fines, and supervised release,’” in addition to a prison term.

United States v. Diaz, 989 F.2d 391, 392 (10th Cir. 1993) (quoting United

States v. Behnezhad, 967 F.2d 896, 899 (9th Cir. 1990)). Thus, the

probation revocation provision requires only that resentencing be conducted

according to subchapter A, and that the new sentence include a prison term

in cases involving a controlled substance violation. Those requirements

were met in this case.

      Vogt further argues that the total length of his new sentence,

combined with the time he spent on probation prior to resentencing,

exceeds that which was available at the time he was initially sentenced, and

is thus impermissible. It is error for a court to apply a sentencing range

higher than that allowed by the sentencing guidelines and the statutory

provisions governing revocation. See United States v. Smith, 907 F.2d 133

(11th Cir. 1990) (finding error in consideration of statutory maximum

rather than guideline range in resentencing upon revocation of probation);

see also United States v. Maltais, 961 F.2d 1485, 1486 (10th Cir. 1992)

(finding initial guideline sentencing range, rather than higher U.S.S.G.

Chapter 7 revocation range, applicable where defendant was initially

sentenced before Chapter 7 was adopted). However, Vogt’s new sentence

does not exceed the range available under the sentencing guidelines. When


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probation is revoked, the district court is not permitted to give the

defendant credit for time spent on probation in calculating the length of the

new sentence imposed. U.S.S.G. (Policy Statement) § 7B1.5(a) (“Upon

revocation of probation, no credit shall be given . . . for any period of the

term of probation served prior to revocation.”). When the time spent on

probation is disregarded, Vogt’s sentence is well within the authorized

limits.

          The sentence imposed by the district court was within the range

allowed by the relevant provisions of the sentencing laws. Accordingly, the

decision of the district court is AFFIRMED.



                                          ENTERED FOR THE COURT


                                          David M. Ebel
                                          Circuit Judge




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