United States v. Anderson ( 1998 )

Filed: June 24, 1998
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 97-4316
(CR-95-84-4)
United States of America,
Plaintiff - Appellee,
versus
Laura B. Anderson,
Defendant - Appellant.
O R D E R
The court amends its opinion filed February 23, 1998, as
follows:
On page 2, first full paragraph, line 7 -- the word “between”
is corrected to read “before.”
On page 3, first paragraph, line 5, and first full paragraph,
line 2 -- the word “parole” is corrected to read “probation.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4316
LAURA B. ANDERSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Shelby.
Lacy H. Thornburg, District Judge.
(CR-95-84-4)
Submitted: December 23, 1997
Decided: February 23, 1998
Before WILKINS, LUTTIG, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Robert C. Ervin, BYRD, BYRD, ERVIN, WHISNANT, MCMAHON
& ERVIN, P.A., Morganton, North Carolina, for Appellant. Mark T.
Calloway, United States Attorney, Brian L. Whisler, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Laura B. Anderson challenges her sentence to a twenty-four month
term of imprisonment, which exceeded the Sentencing Guidelines
range of four to ten months arising from the original offense. Ander-
son's sole issue on appeal is whether the sentence imposed after com-
mitting probation violations exceeded the maximum sentence
permitted under the applicable law. A change in the law occurred
before the time of Anderson's initial sentence and resentencing after
probation violations.
The controlling statute at issue, 18 U.S.C.A. § 3565 (West Supp.
1997), states:
(a) If the defendant violates a condition of probation at any
time prior to the expiration or termination of the term of
probation, the court may, after a hearing pursuant to
Rule 32.1 of the Federal Rules of Criminal Procedure, and
after considering the factors set forth in section 3553(a) to
the extent they are applicable--
(1) continue him on probation, with or without
extending the term or modifying or enlarging the
conditions; or
(2) revoke the sentence of probation and resen-
tence the defendant under subchapter A.
The current language of subsection (a)(2) was the result of a legis-
lative amendment effective September 13, 1994, in which Congress
altered the language from the original text. The prior version provided
that the district court could: "(2) revoke the sentence of probation and
impose any other sentence that was available under subchapter A at
the time of the initial sentencing."
For probation violations occurring prior to this Amendment in Sep-
tember 1994, this Circuit's law is clear: "[w]hen probation given
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under a guideline sentence is revoked [in pre-Amendment cases], the
court is limited at resentencing to a sentence that was available at the
time of the original sentence." See United States v. Alli, 929 F.2d 995,
997 (4th Cir. 1991). However, since the amendment, the district
court's options at sentencing after probation revocation have been
expanded.
Since the passage of the 1994 Amendment, this Court has
addressed the application of the amendment to probation revocation
cases. We have held that the "amended provision plainly permits a
district court to begin the sentencing process anew and to impose any
sentence appropriate under the provisions of subchapter A, i.e., one
that satisfies statutory and guideline requirements." United States v.
Schaefer, 120 F.3d 505, 507 (4th Cir. 1997). Anderson challenges her
sentence only on the basis that the twenty-four month sentence is
invalid under existing law. However, the sentence is within the statu-
tory maximum, see 18 U.S.C.A. § 1029(a)(2), (c) (West Supp. 1997),
and the guidelines range on probation revocation is merely advisory.
See United States v. Davis, 53 F.3d 638, 640-42 (4th Cir. 1995). We
therefore affirm the sentence.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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