The opinion of the court was delivered by: CHARLES R. RICHEY
After testing positive on a number of drug tests, failing to report for drug testing or counseling on other occasions, and missing appointments with his Probation Officer, the above-mentioned Defendant was brought before the Court on January 13, 1993, pursuant to a petition for probation revocation. The Court, after due consideration, found that the Defendant had been in possession of a controlled substance, namely cocaine, in violation of his conditions of probation and ordered the Defendant detained until re-sentencing, which was set for March 8, 1993.
The issue now before the Court is what sentence the Court must now impose as required by statute. The parties agree that the relevant statute requires the Court to sentence to at least one-third of the Defendant's "original sentence," but dispute whether the "original sentence" means the original sentence of probation or another possible sentence the Defendant might have received under the Sentencing Guidelines. The question appears to be one of first impression in this Circuit. After reviewing the memoranda of the parties, listening to allocution by the Defendant and his new attorney, the Assistant United States Attorney, the applicable statute, and the relevant case law as set forth by counsel, the Court must conclude that 18 U.S.C. § 3565(a)(2), the relevant statute in this case, requires the Defendant to be sentenced to not less than one-third of his original sentence of probation. Because the Defendant was originally sentenced to four years of probation, the new sentence must be at least sixteen months.
The Defendant is a 41 year old male who pled guilty on March 11, 1991, to Conspiracy to Distribute some 81.62 grams or more of cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(iii). Under the Sentencing Guidelines, the Defendant's Base Offense Level was level 32, and his Criminal History Category was Category I. The Defendant was given a two-level downward adjustment under the Guidelines for acceptance of responsibility, leaving an Adjusted Offense Level of 30 and a Guideline sentencing range of 97 to 121 months. The mandatory minimum prescribed by statute was ten years under 21 U.S.C. § 841(b)(1)(A)(iii).
Prior to the Defendant's Sentencing on May 4, 1992, the government moved this Court to depart downward from the Guideline range and mandatory minimum based upon the Defendant's substantial assistance in the prosecution of his fellow conspirators. 18 U.S.C. § 3553(e) permits, but does not require, a Court to depart downward from the mandatory minimum sentence upon the motion of the government "so as to reflect a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense." Likewise, § 5K1.1 of the Sentencing Guidelines provides that the Court "may" depart from the Guideline range "upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense . . . ." U.S.S.G. § 5K1.1, p.s. Pursuant to 18 U.S.C. § 3553(e) and § 5K1.1, the Court exercised its discretion and departed downward from the Guideline range and the mandatory minimum, and sentenced the Defendant on May 4, 1992, to four years probation.
The Defendant has admittedly failed to comply with the conditions of his probation. He tested positive for cocaine metabolite, benzoylegonine, on four separate occasions. He failed to report for further testing and drug counseling on eleven separate occasions. He also missed at least four appointments with his probation officer. Consequently, the Court held a hearing to determine whether to revoke the Defendant's sentence of probationary supervision. At the hearing, held on January 13, 1993, the Defendant admitted that he had used drugs five times over the period of his probation and did not contest the allegations of non-compliance with his conditions of probation. Based on the evidence presented at the hearing, the Court found that the Defendant had possessed
a controlled substance, namely cocaine, in violation of a direct condition of the special conditions of his Probationary Sentence. This is the same drug to which he pled guilty of Conspiracy to Distribute 81.62 grams of cocaine on March 11, 1991. The Court revoked the Defendant's Probationary Sentence and set March 8, 1993, for re-sentencing.
On March 8, 1993, the Court heard both sides prior to the imposition of sentence. The Defendant again admitted that he had used cocaine while on probation. The Court also heard testimony from William T. Conyers, Jr., the Defendant's Probation Officer, who stated that, in addition to the failed drug tests, missed appointments, and failure to cooperate, the Defendant had not yet provided adequate documentation to establish his residence. The Probation Officer also testified he had spoken with a woman who was the Defendant's wife and living at the claimed residence. The wife of the Defendant stated that the Defendant lived there only some of the time and that the Defendant has not been fulfilling his obligations of child support in a timely fashion. The Court must now decide what Sentence, within the requirements of statute and the Guidelines, is appropriate in this case.
III. BOTH THE WORDS AND STRUCTURE OF THE APPLICABLE STATUTE REQUIRE THE COURT TO IMPOSE A PERIOD OF IMPRISONMENT OF NOT LESS THAN ONE-THIRD OF THE ORIGINAL SENTENCE OF PROBATION.
Both the Defendant and the government agree that the applicable statute in this case is 18 U.S.C. § 3565 (a)(2), as amended by the Anti-Drug Abuse Act of 1988, which provides, in pertinent part:
Notwithstanding any other provision of this section, if a defendant is found by the court to be in possession of a controlled substance, thereby violating the condition imposed by section 3563(a)(3), the court shall revoke the sentence of probation and sentence the defendant to not less than one-third of the ORIGINAL SENTENCE. (emphasis added).
The government asserts that the phrase "original sentence" means the original period of probation, thus requiring the Court to impose a period of imprisonment for at least one-third of the original four-year probation sentence, or 16 months. The Court agrees, because this position is supported by both the words and structure of the statute and the best reasoning of the relevant case law on the subject to date.
First, both statutory and case law make it clear that a term of probation constitutes a "sentence" of the Court, and not a condition in lieu of sentence. 18 U.S.C. § 3551 provides that "an individual found guilty of an offense shall be sentenced. . . to (1) a term of probation. . . ," a fine, or a term of imprisonment. (emphasis added). Likewise, 18 U.S.C. § 3561(a) provides that, under certain circumstances, "[a] defendant may be sentenced to a term of probation. . . ," (emphasis added). The language of both statutes supports this Court's conclusion that probation is a "sentence." As other courts have recognized, "[probation] is no longer an alternative to sentencing; it is a sentence in and of itself. " United States v. Corpuz, 953 F.2d 526, 529 (9th Cir. 1992) (emphasis added); accord United States v. Maltais, 961 F.2d 1485, 1487 (10th Cir. 1992); United States v. Granderson, 969 F.2d 980, 982 (11th Cir. 1992). Consequently, the "original sentence" of the Court, a four-year term of probation, necessarily governs here.
The Court's conclusion that the words "original sentence" refer to the period of probation actually imposed by the Court is supported by the remaining parts of § 3565. § 3565(b), for example, provides that:
If the defendant is in actual possession of a firearm . . . at any time prior to the expiration or termination of the term of probation, the court shall . . . revoke the sentence of probation and impose any other sentence that was available under subchapter A at the time of the initial sentencing. (emphasis added).
This clear difference in the statutory language between § 3565(b) and the portion of § 3565(a)(2) applicable in this case suggests that Congress intended to distinguish between an "original sentence" of probation and "any other ...