### Under the S entencing Guidelines, her offense level was eight 1 

### and she had no criminal histor y. 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 Badland s National Park Service, was found guilty of theft and embezzlement of publi c monies in violation of 18 U.S.C. § 641. The evidence at trial showe d Iversen took money she had collected as fees and later paid in cash for he r law school tuition. Iversen claimed the money w as taken by a robber. The distri ct court, the Honorable Lawrence L. Piersol, sentenced Iversen t o four yea rs probation, a $1,000 fine, a $50 special assessment, an d $9,6 95.50 in restitution to the Badlands National Park Service. Th e district court denied the government's request f or a two-level enhancement for obstruction of justice. As special conditions of probatio n, the court 1 placed

### -2-

Iversen in home deten and at the direction of the probation officer, t he defendant shall undergo

Less than three weeks after sentencing, Iversen was issued a ci tation her with shoplifting at a grocery store. The probation officer directed Iversen to report to the U.S. Probation Office in Rapi d Sout h 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 directe d Rapid City, and her departure to Michigan without permission. The cour revoked her probation, sentencing her to six mon ths imprisonment and three
s upervised 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 waive d 2 

### cer tain arguments by failing to develop the record below, he r 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 ha s bee n developed on her claims. Thus, we dismiss this claim withou t 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 durin g 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 t estimony and the agent's presence at the counsel table during th e 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 dis trict court's refusal to enhance Iversen's sentence for obstruction of justice under the Sentencin g Guidelines. The government argues Iversen commi tted perjury by testifying she h ad been robbed at the ranger station. Both the jury and the judg e rejected her testimony. Thus, the government urges, Iversen's sentence wa s 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 , Iversenargues 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 statement s 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 cour t

e standards and found that although neither the jury
nor ourt believed Iversen in this case, a reasonable trier of fac t have believed her testimony. Sent. Tr. at 10. Furthermore, th e Court has emphasized the enhancement should be applied only when district court has made a "separate and clear finding" as to eac h t of perjury, i.e., that the defendant "gives false testimon
concern ing 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 becaus e U.S.S.G. § 5B1.1(a)(2) provides for sentences of probatio n including home detention only for Zone B offenses. Iverse n misreads this provision of the guidelines. Firs t, § 5B1.1(a)(1) authorizes sentences of probation fo r Zone A offenses; it is silent as to whether home detention may be a cond ition 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 perju ry entitles her to judgment as a matter of law. The fact tha t a reasonable trier of fact could have believed Iversen' s testimony does not mean that other reasonable triers of fact, including th e jury and the judge in this case, were not free to disbelieve her. Further , as Dunnigan makes clear, there are a number of r easons a trial court could decline to impose the enhancement on a defendant whom the court nonetheles s dis believes. Thus, we find the evidence is sufficient such that a
rea sonable jury could disbelieve Iversen, and convict her, but does no t mandate the impositio n of an enhancement for obstruction of justice under the Sentencing Guidelines.

Conditions of Probation

Iversen argues the district court erred by imposing home detentio n
an d by authorizing psychiatric or psychological treatment as specia l conditions of her probation. Iversen did not object to these conditions at the time of sentencing and thus we review for plain error or miscarriag e of just ice. See United States v. Marsanico , 61 F.3d 666, 668 (8th Cir

. 1995).
We find the imposition of home deten tion as a condition of probation was not plain error. Contrary to Iversen's cont entions, 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 th e appli cable guideline range is in Zone A of the Sentencing Table . . . a condition requiring a period of community confinement, home detention, or interm ittent confinement may be imposed but is not required." (emphasi s 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 detentio n "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 (admis sion 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 conditi on of Iversen's probation.
he district court's order giving prob officers the authority to order psychiatric or psychologica l 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 ha d expressed concerns as to the "emotional toll" on Iversen from various lega l disput es, including this prosecution, and Iversen is reported as sayin g that the conviction f elt "like the end of her life as she knows it." PSR at 7. Furthermore, the procedural requirements of the Insanity Defens e ReformAct 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 convicte d defendant if "there i s 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 suitabl e facili ty"--apply to convicted persons committed to the custody of th e Bureau of Prisons, no t 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, o r psychological treatme nt" as a condition of probation if the "deprivations of lib erty or property" involved in such condition are "reasonabl y necessary" to protect the public from future cri mes by the defendant or to provid e 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 pa rticipate in a mental health program approved by the United States Probation Office."). It was not plain error for the distric t 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 I versen with needed medical treatment under the

### -8-

circumstances of this case.

Revocation of Probation

Iversen c ontends the district court erred by revoking her probation and by sentencing her to six months imprisonment upon the revocation of he r probation. Iversen f irst argues that her sentence of probation could not be revoked, and that the district court lacked jurisdiction to revoke her probati on, because the sentence of probation was illegal in the firs t place. Having already found that Iversen was properly sentenced t o probation, including home detention, we reject this argument.
Second, Iversen argues that the evid ence on which the district court relied in revoking her probation was uncorroborated and unreliable and tha t the failure of the prosecution to produce the video tape of her shopliftin g of fense effectively denied her the opportunity to challenge evidenc e presente d against her. We reject this argument. Iversen admitte d violating her probati on by failing to appear for psychological evaluation in Rapid City, as directed by the probation officer, and by moving t o Michig an without first obtaining the probation officer's approval. I f Iverse n thought the probation officer's directive that she appear fo r psychological evaluat ion violated her rights, as she now contends, it was incumbent upon Iversen to seek judicial relief f rom that order rather than flee f rom the probation officer's authority. Furthermore, a securit y offici al 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 th an sufficient to establish Iversen's violations of her probation.

Third, Iversen contends she should have received credit from th e district court for the three months she spent in home

### This statement is similar to an earlier statute governin g 6 

### re vocation of probations which empowered the district court t o "revok e the sentence of probation and impose any other sentenc e that was available under subchapter A at the time of the initia l 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 recogniz ed that the amendment does not alter the district court's power to s entence -9- detention. We find, however, that the district court did not have th e 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 p resented 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, I versen contends that the maximum sentence for imprisonment she could receive upon violating the terms of her probation was thre e months imp risonment. Iversen's theory is that at the time of initia l sentencing, she could not have been sentenced to six months imprisonment and three months home detention, and thus her se ntence upon the revocation of pr obation exceeds the maximum available at the time of initia l sentencing.

It appears to be true that at the original sentencing, if th e district court had de cided 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 hom e dete ntion is a condition of supervised release for Zone B offenses)

. Nonetheless, after revoking Iversen's probation, the district court wa s required to "resenten ce the defendant under subchapter A." See 18 U.S.C. § 3565(a)(2). Subchapter A, inter alia , generally requires the court to sentence defendants i n accordance with the Sentencing Guidelines. See 18 U.S.C. § 3553(b); Uni ted States v. Von Washington , 915 F.2d 390, 391 (8th Cir. 1990) (per curiam). Chapter 7 of the Sentencing Guidelines state s that a cou rt may "revoke probation and impose any other sentence tha t 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 afte r Iversen violated her probation--six months imprisonment plus three years supervised release--was within the range of sentences available at the tim e of initial sentencing . The fact that she had already served three months home detention as a condition of probation did not limit the maximu m senten ce available to the district court in sentencing Iversen afte r revocati on of her probation. Cf. U.S.S.G. § 7B1.5(a), p.s. ("Upo n revocation of probati on, no credit shall be given (toward any sentence of imprisonment imposed) for any portion of the term of probation served prio r to revocation.").
Finally, Iversen argues the district court denied her right o f allocution at the time of sentencing upon revocation of her probation. Se e Green v. United State s , 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 constitutiona l right t o be advised by district court of right to speak). Whether Rul e 32's ri ght of allocution applies to sentencing upon the revocation o f probation is an unset tled question in this circuit. See generally United States v. Carper , 24 F.3d 1157, 1158-62 (9th Cir. 1994) (discussin g confli cting authorities on the right of allocution after revocation o f probat ion or supervised release). Nonetheless, assuming Iversen had a right of allocution at sentencing upon revocation of her probation, we fin d that her right was satisfied. Iversen had previ ously been informed of her right of allocution. At the sentencing hearing after the revocation of he r prob ation, the district court asked Iversen's counsel if she had an y evidence to

### -12-

present. Iversen testified extensively about the alleged violations of he r 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 tes timony, the district court asked if "the defense" knew of any reason why a sentence should not b e impos ed. Id. at 51. The district court was given and read an unsigne d five-page document entitled "Defendant's Written Statement For Supplementa l Report Concerning Vio lations of Probation" apparently written by Iversen. Id. at 51-52. The district court did not prevent, harass, or hurry an y effort on the part of Iversen or her counsel to speak. Iversen's views on sentencing were fully known. Although the distr ict court should have made clear that it was asking Iversen personally if s he had anything further to say on her own behalf or in mitigation of her sentence, we think it i s clear from the course of the hearing that Iversen "knew [she] had a right to spe ak on any subject of [her] choosing prior to the imposition o f sentence[,]" and actually availed herself of that right. See United State s
v. De Alba Pagan , 33 F.3d 125, 129 (1st Cir. 1994). Under the uniqu e circumstances of this case, we find that Iversen 's right of allocution was satisfied.

Ivers en 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.