Under the Sentencing Guidelines, her offense level was eight 1

and she had no criminal history. Her guidelines sentence was thus

zero to six months imprisonment and two to three years supervised

release--within Zone A of the Sentencing Table. 

___________

Nos. 95-2631, 95-2650, and 95-3869 

___________

United States of America, *

*

Plaintiff-Appellee/ *

Cross-Appellant, *

* Appeals from the United States

v. * District Court for the

* District of South Dakota.

Nancy Ruth Iversen, *

* 

Defendant-Appellant/ *

Cross-Appellee. *

___________

 Submitted: June 11, 1996

 Filed: July 25, 1996

___________

Before BOWMAN, LAY, and LOKEN, Circuit Judges.

___________

LAY, Circuit Judge.

Background

Nancy Ruth Iversen, a fee collection officer for the Badlands

National Park Service, was found guilty of theft and embezzlement of public

monies in violation of 18 U.S.C. § 641. The evidence at trial showed

Iversen took money she had collected as fees and later paid in cash for her

law school tuition. Iversen claimed the money was taken by a robber. The

district court, the Honorable Lawrence L. Piersol, sentenced Iversen to

four years probation, a $1,000 fine, a $50 special assessment, and

$9,695.50 in restitution to the Badlands National Park Service. The

district court denied the government's request for a two-level enhancement

for obstruction of justice. As special conditions of probation, the court 1

placed 
-2-

Iversen in home deten

and at the direction of the probation officer, the defendant shall undergo

Less than three weeks after sentencing, Iversen was issued a citation

 her with shoplifting at a grocery store. The probation officer

 directed Iversen to report to the U.S. Probation Office in Rapid

 South Dakota on September 5, 1995, for placement in a communit

corrections facility for formal psychological evaluation. Iversen failed

appear in Rapid City and later notified the district court she had move

to r

probation due to her shoplifting offense, her failure to appear as directed

Rapid City, and her departure to Michigan without permission. The cour

revoked her probation, sentencing her to six months imprisonment and three

 supervised release, the maximum penalty available for Iversen'

underlying theft and embezzlement offense. 

fines and restitution imposed in the court's initial judgment.

In No. 95-2631, Iversen appeals her 

probation. In No. 95-2650, the government cross-appeals Iversen'

sentence. r

probation. We have consolidated the appeals and affirm the district court.

Iversen contends her trial counsel was not effective because h

failed t f

Iversen's preserve Iversen's rights to

a speedy trial. We decline to address Iversen's 
 To the extent Iversen believes her trial counsel waived

2

certain arguments by failing to develop the record below, her

ability to bring that claim in a motion under 28 U.S.C. § 2255 is

not prejudiced by our decision.

-3-

ineffective assistance claim on direct appeal because no factual record has

been developed on her claims. Thus, we dismiss this claim without

prejudice to Iversen's right to bring a motion for relief under 28 U.S.C.

§ 2255. See United States v. Petty, 1 F.3d 695, 695-96 (8th Cir. 1993).

Government Agent at Counsel Table

Iversen contends she was prejudiced by the testimony of a government

agent who sat at the U.S. Attorney's counsel table and consulted with the

U.S. Attorney during the trial. Iversen asserts the district court would

have disallowed this testimony, or excluded the agent from the court during

the trial, if the court had known of the agent's allegedly false testimony

before the grand jury and an alleged incident of hostility by the U.S.

Attorney toward Iversen's brother during the trial. On the current record,

we find no abuse of discretion in the district court's decision to allow

the testimony and the agent's presence at the counsel table during the

trial. See Fed. R. Evid. 615(2); United States v. Sykes, 977 F.2d 1242,

1245 (8th Cir. 1992).2

Perjury

The government cross-appeals the district court's refusal to enhance

Iversen's sentence for obstruction of justice under the Sentencing

Guidelines. The government argues Iversen committed perjury by testifying

she had been robbed at the ranger station. Both the jury and the judge

rejected her testimony. Thus, the government urges, Iversen's sentence was

required to be enhanced. See U.S.S.G. § 3C1.1 & cmt. (n.3(b)) (Nov. 1994)

(obstruction of justice includes perjury by defendant). On the other hand,

Iversen
argues the district court's refusal to find perjury, under th

preponderance s

under the Sentencing 

convict h h

parties' arguments.

3C1.1 provides: "This provision

is not intended to punish a defendant for the ex

right. . . e

testim or statements by the defendant, such testimony or statements

 the defendant." U.S.S.G.

§ 3C1.1, cmt. (n.1). As this court has explaine

be t

could find the testimony true.'" v. Patel, 32 F.3d 340, 345

United States v. Willis, 940 F.2d 1136, 1140 (8th

 1991), , 507 U.S. 971 (1993)). The district court

e standards and found that although neither the jury

nor ourt believed Iversen in this case, a reasonable trier of fact

 have believed her testimony. Sent. Tr. at 10. Furthermore, the

 Court has emphasized the enhancement should be applied only when

 district court has made a "separate and clear finding" as to each

t of perjury, i.e., that the defendant "gives false testimon

concerning e

testimony, rather than as a result of confusion, mistake or faulty memory."

States v. Dunnigan See also d

Stat v. Patino-Rojas, 974 F.2d 94, 96 (8th Cir. 1992) (per curiam

(enhancement proper when district court makes 

based s

testimony" cert. denied, 507 

district court made no such findings 

required.

We also reject Iversen's contention that the district court's 
 Iversen argues that sentences for offenses within Zone A of 3

the Sentencing Table may not include home detention because

U.S.S.G. § 5B1.1(a)(2) provides for sentences of probation

including home detention only for Zone B offenses. Iversen

misreads this provision of the guidelines.

First, § 5B1.1(a)(1) authorizes sentences of probation for

Zone A offenses; it is silent as to whether home detention may be

a condition of probation for Zone A offenses. As we have noted,

however, Application Note 1 expressly provides for home detention

as a condition of probation for Zone A offenses. See U.S.S.G.

-5-

failure to find perjury entitles her to judgment as a matter of law. The

fact that a reasonable trier of fact could have believed Iversen's

testimony does not mean that other reasonable triers of fact, including the

jury and the judge in this case, were not free to disbelieve her. Further,

as Dunnigan makes clear, there are a number of reasons a trial court could

decline to impose the enhancement on a defendant whom the court nonetheless

disbelieves. Thus, we find the evidence is sufficient such that a

reasonable jury could disbelieve Iversen, and convict her, but does not

mandate the imposition of an enhancement for obstruction of justice under

the Sentencing Guidelines.

Conditions of Probation

Iversen argues the district court erred by imposing home detention

and by authorizing psychiatric or psychological treatment as special

conditions of her probation. Iversen did not object to these conditions

at the time of sentencing and thus we review for plain error or miscarriage

of justice. See United States v. Marsanico, 61 F.3d 666, 668 (8th Cir.

1995).

We find the imposition of home detention as a condition of probation

was not plain error. Contrary to Iversen's contentions, home detention is

expressly authorized for offenses within Zone A of the Sentencing Table by

the guidelines commentary. See U.S.S.G. § 5B1.1, cmt. (n.1(a)) ("Where the

applicable guideline range is in Zone A of the Sentencing Table . . . a

condition requiring a period of community confinement, home detention, or

intermittent confinement may be imposed but is not required." (emphasis

omitted)). Further, the fact that home detention may be imposed 3
in the Sentencing Guidelines are binding unless contradicted by the

See

v. United States, 508 U.S. 36, 37-38 (1993).

sentences of probation for Zone B offenses only if the probatio

includes home detention, community confinement, or intermitten

confinement. This provision requires eration

for t

whether sentences of probation

include home detention.

 April 1996 amendment, this provision appeared at 4

-6-

"only as for imprisonment[,]" U.S.S.G. § 5F1.2 (emphasis

adde see also (providing for home detention

"only as an alternative to incarceration"), 

is a form of ment which cannot be coupled with probation under 18

U.S.C. 3561(a)(3). Cf. Reno v. Koray, 115 S. Ct. 2021, 2025 (1995

(admission n

within meaning of 18 U.S.C. § 3585(b)); United States v. Blumberg d

787, 792 (8th Cir. 19

within the meaning of 18 U.S.C. 

in the imposition of home detention as a condition of Iversen's probation.

he district court's order giving

prob officers the authority to order psychiatric or psychological

ent as a special condition of probation. Iversen argues thi

condition e

and "the history and characteristics of

the defendant" under U.S.S.G. § 5B1.3(b)(1), nor

in acc e

Reform Act
 Prior to an April 1996 amendment, this provision appeared at 5

18 U.S.C. § 3563(b)(10).

-7-

of 1984, 18 U.S.C. §§ 4241-47. We disagree. 

The presentence report (PSR) said Iversen's family and friends had

expressed concerns as to the "emotional toll" on Iversen from various legal

disputes, including this prosecution, and Iversen is reported as saying

that the conviction felt "like the end of her life as she knows it." PSR

at 7. Furthermore, the procedural requirements of the Insanity Defense

Reform Act on which Iversen relies--such as the requirement of a hearing

under 18 U.S.C. § 4244(a) as to the present mental condition of a convicted

defendant if "there is reasonable cause to believe that the defendant may

presently be suffering from a mental disease or defect for the treatment

of which he is in need of custody for care or treatment in a suitable

facility"--apply to convicted persons committed to the custody of the

Bureau of Prisons, not persons placed on probation. See, e.g., 18 U.S.C.

§ 4244(d) (court may order defendant's hospitalization "in lieu of being

sentenced to imprisonment"). Conditions of probation are governed by 18

U.S.C. § 3563, which expressly authorizes "medical, psychiatric, or

psychological treatment" as a condition of probation if the "deprivations

of liberty or property" involved in such condition are "reasonably

necessary" to protect the public from future crimes by the defendant or to

provide the defendant with needed medical care. See 18 U.S.C.

§ 3563(b)(9); see also U.S.S.G. § 5B1.4(b)(24) ("If the court has reason 5

to believe that the defendant is in need of psychological or psychiatric

treatment, it is recommended that the court impose a condition requiring

that the defendant participate in a mental health program approved by the

United States Probation Office."). It was not plain error for the district

court to find that the deprivations of liberty involved in psychological

treatment, ordered at the probation officer's discretion, were reasonably

necessary to protect the public and to provide Iversen with needed medical

treatment under the 
-8-

circumstances of this case.

Revocation of Probation

Iversen contends the district court erred by revoking her probation

and by sentencing her to six months imprisonment upon the revocation of her

probation. Iversen first argues that her sentence of probation could not

be revoked, and that the district court lacked jurisdiction to revoke her

probation, because the sentence of probation was illegal in the first

place. Having already found that Iversen was properly sentenced to

probation, including home detention, we reject this argument.

Second, Iversen argues that the evidence on which the district court

relied in revoking her probation was uncorroborated and unreliable and that

the failure of the prosecution to produce the video tape of her shoplifting

offense effectively denied her the opportunity to challenge evidence

presented against her. We reject this argument. Iversen admitted

violating her probation by failing to appear for psychological evaluation

in Rapid City, as directed by the probation officer, and by moving to

Michigan without first obtaining the probation officer's approval. If

Iversen thought the probation officer's directive that she appear for

psychological evaluation violated her rights, as she now contends, it was

incumbent upon Iversen to seek judicial relief from that order rather than

flee from the probation officer's authority. Furthermore, a security

official from the grocery store testified in detail about Iversen's

shoplifting. Iversen's counsel had the opportunity to cross-examine this

witness. We find that Iversen's rights to defend herself were protected

in this process and that the evidence is more than sufficient to establish

Iversen's violations of her probation.

Third, Iversen contends she should have received credit from the

district court for the three months she spent in home 
 This statement is similar to an earlier statute governing

6

revocation of probations which empowered the district court to

"revoke the sentence of probation and impose any other sentence

that was available under subchapter A at the time of the initial

sentencing." See, e.g., 18 U.S.C. § 3565(a)(2) (1988). This

statute was amended in 1994 and now provides district courts with

the power to "revoke the sentence of probation and resentence the

defendant under subchapter A." See 18 U.S.C.A. § 3565(a)(2) (West

Supp. 1996). We agree with other courts which have recognized that

the amendment does not alter the district court's power to sentence

-9-

detention. We find, however, that the district court did not have the

authority under 18 U.S.C. § 3585(b) to credit Iversen for the time spent

in home detention for the prior sentence, and that this claim should have

been presented first to the Bureau of Prisons. See United States v.

Wilson, 503 U.S. 329, 333-34 (1992); United States v. Moore, 978 F.2d 1029,

1031 (8th Cir. 1992).

Fourth, Iversen contends that the maximum sentence for imprisonment

she could receive upon violating the terms of her probation was three

months imprisonment. Iversen's theory is that at the time of initial

sentencing, she could not have been sentenced to six months imprisonment

and three months home detention, and thus her sentence upon the revocation

of probation exceeds the maximum available at the time of initial

sentencing.

It appears to be true that at the original sentencing, if the

district court had decided to impose a period of incarceration as well as

three months home detention as a condition of supervised release, Iversen's

term of imprisonment would have been limited to three months. Cf. U.S.S.G.

§ 5C1.1(c)(2), (e) (calculating length of imprisonment term when home

detention is a condition of supervised release for Zone B offenses).

Nonetheless, after revoking Iversen's probation, the district court was

required to "resentence the defendant under subchapter A." See 18 U.S.C.

§ 3565(a)(2). Subchapter A, inter alia, generally requires the court to

sentence defendants in accordance with the Sentencing Guidelines. See 18

U.S.C. § 3553(b); United States v. Von Washington, 915 F.2d 390, 391 (8th

Cir. 1990) (per curiam). Chapter 7 of the Sentencing Guidelines states

that a court may "revoke probation and impose any other sentence that

initially could have been imposed." U.S.S.G. ch. 7, pt. A(2)(a).6
a probation violator within the range of sentences available at the

time of the initial sentence. See, e.g., United States v.

Plunkett, 74 F.3d 938, 940 (9th Cir. 1996).

-10-

Applying 
-11-

this principle to this case, we find that the sentence imposed after

Iversen violated her probation--six months imprisonment plus three years

supervised release--was within the range of sentences available at the time

of initial sentencing. The fact that she had already served three months

home detention as a condition of probation did not limit the maximum

sentence available to the district court in sentencing Iversen after

revocation of her probation. Cf. U.S.S.G. § 7B1.5(a), p.s. ("Upon

revocation of probation, no credit shall be given (toward any sentence of

imprisonment imposed) for any portion of the term of probation served prior

to revocation.").

Finally, Iversen argues the district court denied her right of

allocution at the time of sentencing upon revocation of her probation. See

Green v. United States, 365 U.S. 301 (1961); United States v. Walker, 896

F.2d 295, 300-01 (8th Cir. 1990); Fed. R. Crim. P. 32(c)(3)(C) (1995); see

also Hill v. United States, 368 U.S. 424, 428 (1962) (no constitutional

right to be advised by district court of right to speak). Whether Rule

32's right of allocution applies to sentencing upon the revocation of

probation is an unsettled question in this circuit. See generally United

States v. Carper, 24 F.3d 1157, 1158-62 (9th Cir. 1994) (discussing

conflicting authorities on the right of allocution after revocation of

probation or supervised release). Nonetheless, assuming Iversen had a

right of allocution at sentencing upon revocation of her probation, we find

that her right was satisfied. Iversen had previously been informed of her

right of allocution. At the sentencing hearing after the revocation of her

probation, the district court asked Iversen's counsel if she had any

evidence to 
-12-

present. Iversen testified extensively about the alleged violations of her

probation, her preference for imprisonment in lieu of continuing probation,

and her belief that the district court lacked jurisdiction to revoke her

probation. Sent. Tr. 17-46. Following this testimony, the district court

asked if "the defense" knew of any reason why a sentence should not be

imposed. Id. at 51. The district court was given and read an unsigned

five-page document entitled "Defendant's Written Statement For Supplemental

Report Concerning Violations of Probation" apparently written by Iversen.

Id. at 51-52. The district court did not prevent, harass, or hurry any

effort on the part of Iversen or her counsel to speak. Iversen's views on

sentencing were fully known. Although the district court should have made

clear that it was asking Iversen personally if she had anything further to

say on her own behalf or in mitigation of her sentence, we think it is

clear from the course of the hearing that Iversen "knew [she] had a right

to speak on any subject of [her] choosing prior to the imposition of

sentence[,]" and actually availed herself of that right. See United States

v. De Alba Pagan, 33 F.3d 125, 129 (1st Cir. 1994). Under the unique

circumstances of this case, we find that Iversen's right of allocution was

satisfied.

Iversen raises other arguments which we find to be without merit.

For the foregoing reasons, the judgments are AFFIRMED.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.