U.S. v. HOREK No. 97-2268.
137 F.3d 1226 (1998)
UNITED STATES of America, Plaintiff-Appellee, v. Mark A. HOREK, Defendant-Appellant.
United States Court of Appeals, Tenth Circuit.
March 3, 1998.
John V. Butcher, Assistant Federal Public Defender, Albuquerque, NM, for Defendant-Appellant.
Laura Fashing, Assistant United States Attorney (John J. Kelly, United States Attorney, with her on the brief), United States Attorney's Office, Albuquerque, NM, for Plaintiff-Appellee.
Before ANDERSON, McWILLIAMS, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
Horek appeals a nine-month sentence of imprisonment imposed upon revocation of his probation. Horek argues the sentence is illegal because the district court failed to deduct the four months he served in community confinement as a condition of probation from the maximum sentence available for his original offense. This court rejects Horek's argument that the time spent in community confinement as a condition of probation must be deducted from his maximum term of imprisonment and affirms.
The chronology of this case is not in dispute. In April 1994, Horek pleaded guilty to one count of obtaining bank funds by false pretenses, in violation of 18 U.S.C. § 2113(b). On January 20, 1995, the United States District Court for the Eastern District of Michigan sentenced Horek to three years probation, which included a condition that he serve four months home detention. The court also ordered Horek to make restitution in the amount of $14,949.62.
In sentencing Horek, the district court found, pursuant to the United States Sentencing Guidelines (U.S.S.G.), that Horek's offense level was seven and his criminal history category was III, resulting in a guideline imprisonment range of four to ten months. See U.S.S.G. ch. 5 pt. A. This four-to-ten-month imprisonment range is in Zone B of the Sentencing Table. See id. As indicated, however, the court did not impose a term of imprisonment. Instead, Horek was placed on probation pursuant to U.S.S.G. § 5C1.1(c)(3), which provides:
Subsection (e) allows one day of home detention to be substituted for one day of imprisonment. See id. § 5C1.1(e)(3). Similarly, one day of community confinement, which includes residence in a halfway house, may be substituted for one day of imprisonment. See id. § 5C1.1(e)(2).
On February 3, 1995, the district court amended its original sentence and ordered that Horek serve four months in a community corrections center rather than four months home detention. Horek subsequently served four months in a halfway house.
On March 6, 1997, the United States Probation Office filed a petition to revoke Horek's probation on the grounds that he violated five conditions of his probation. Horek admitted to violating four of the five probation conditions alleged in the Petition for Revocation of Probation. At a sentencing hearing, the district court found that the violations were Grade C violations under U.S.S.G. § 7B1.1(a)(3) (policy statement). Because Horek's original criminal history category was III, the court found that the applicable guideline imprisonment range upon revocation of Horek's probation was five to eleven months pursuant to U.S.S.G. § 7B1.4(a) (policy statement). Horek was sentenced to eleven months imprisonment.
Horek then filed a Motion to Reconsider and Correct an Illegal Sentence and to Reconsider Detention. At the hearing on this motion, the district court reduced Horek's term of imprisonment from eleven months to nine months, indicating that the sentence of eleven months might violate the Ex Post Facto Clause of the United States Constitution.
Horek appeals the district court's imposition of a nine-month sentence, arguing that the four months he served in community confinement must be deducted from the ten-month maximum sentence for his original offense, leaving six months as the maximum term of imprisonment which could lawfully be imposed upon revocation of his probation. This court reviews the district court's legal interpretation and application of the Sentencing Guidelines de novo. See United States v. Maltais,
Horek's argument rests on his contention that community confinement as a condition of his probation is "imprisonment" within the meaning of the Sentencing Guidelines and must be deducted from the maximum guideline term of imprisonment when resentencing a defendant whose probation has been revoked.
Under the Sentencing Guidelines, Horek's offense level was seven and his criminal history category was III, resulting in a guideline imprisonment range of four to ten months. See U.S.S.G. ch. 5 pt. A. Because this guideline range is in Zone B of the Sentencing Table, see id., the district court had three options for satisfying Horek's minimum four-month term of imprisonment, see id. § 5C1.1(c). Under U.S.S.G. § 5C1.1(c), the district court could have imposed (1) a sentence of imprisonment of at least four months; (2) a sentence of at least one-month imprisonment plus a term of supervised release, with a condition that Horek be placed in community confinement or home detention for at least the portion of the four-month minimum term not spent in actual imprisonment; or (3) a sentence of probation with a condition that Horek spend at least four months in intermittent confinement, community confinement, or home detention. See also id. § 5C1.1 Application Note 3.
The district court chose to forgo imposition of a sentence of actual imprisonment, instead sentencing Horek to a term of probation which included the condition that Horek spend four months in community confinement. The four months Horek spent in community confinement were clearly a "substitute" for imprisonment under § 5C1.1 of the Sentencing Guidelines. See id. § 5C1.1(e)(2) (allowing one day of community confinement to be substituted for one day of imprisonment). Horek contends that because the four months he spent in community confinement were a substitute for imprisonment,
Although the Guidelines permit community confinement to be "substituted" for imprisonment, it does not necessarily follow that the four months Horek spent in community confinement constituted "imprisonment" under the Guidelines. Instead, the four months Horek spent in community confinement are more properly viewed solely as a condition of probation. Section 5C1.1(c)(3) expressly provides that a court may impose "a sentence of probation that includes a condition or combination of conditions that substitute ... community confinement ... for imprisonment." Id. § 5C1.1(c)(3) (emphasis added); see also id. § 5B1.1(a)(2) (stating "probation is authorized if ... the applicable guideline range is in Zone B of the Sentencing Table and the court imposes a condition or combination of conditions requiring intermittent confinement, community confinement, or home detention as provided in subsection (c)(3) of § 5C1.1" (emphasis added)); id. § 5F1.1 ("Community confinement may be imposed as a condition of probation or supervised release." (emphasis added)).
The Sentencing Guidelines policy statements addressing revocation of probation
While this court acknowledges the distinction between credit against a new sentence imposed and deduction from the maximum guideline term, the Guidelines do not require time spent in community confinement to be treated differently in these two contexts. The intent of the policy statement concerning credit upon revocation of probation is clear. A defendant does not receive any credit against a sentence of imprisonment for any term of probation served. See id. Horek's proposed interpretation would circumvent the purpose of this provision by crediting the time against the maximum guideline term, thus severely limiting the maximum sentence a district court could impose upon revocation of a defendant's probation. Nothing in the Guidelines supports this differential treatment of community confinement depending on the context. A more plausible interpretation of the Guidelines is that community confinement, as a condition of probation, is not "imprisonment" within the meaning of the Guidelines and, therefore, should not be credited against either the sentence imposed on revocation of probation or the maximum guideline term.
This result is in accord with the Eighth Circuit's decision in United States v. Iversen,
Similarly, in an unpublished decision referenced by Horek, United States v. Vogt, No. 96-1192, 1997 WL 20125 (10th Cir.1997), this circuit upheld the legality of a sentence imposed upon revocation of probation even though the length of the new sentence, combined with the time spent previously on probation, exceeded the guideline range applicable for the defendant's original offense.
While the district court could have initially imposed a sentence of imprisonment, it granted Horek the benefit of the doubt and imposed probation with the condition that Horek spend four months in community confinement. Having violated his probation, Horek does not now receive credit against the maximum guideline term of imprisonment for
The judgment of the United States District Court for the District of New Mexico is
McWILLIAMS, Circuit Judge, dissenting.
In my view the majority opinion does not follow the teaching of United States v. Thomas,
Accordingly, I would reverse and remand for resentencing to no more than six months imprisonment, and credit Horek with the time he has already served in the federal correctional institution in Forest City, Arkansas.
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