FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 16, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-15567

Non-Argument Calendar

________________________

D. C. Docket No. 02-20194-CR-AJ

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

MARIA LAMELAS-LINARES, 

a.k.a. Lauren Maria Fletcher, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(May 16, 2006)

Before TJOFLAT, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

Maria Lamelas-Linares appeals her sentence of 36 months’ imprisonment
2

imposed after she violated the conditions of her probation to which she was

sentenced after she pled guilty to one count of making a false statement to receive

Social Security benefits fraudulently, in violation of 42 U.S.C. § 408(a)(7)(A), and

two counts of theft of Social Security benefits, in violation of 18 U.S.C. § 641. On

appeal, she argues that the district court violated her Sixth Amendment rights and

abused its discretion in sentencing her outside the advisory sentencing range of 8 to

14 months’ imprisonment, as set forth in U.S.S.G. § 7B1.4. Specifically, she

argues that if the court refuses to adhere to the Chapter 7 advisory sentencing

range, it must resentence her within, or at least consider, the original Guideline

range for her underlying offense. 

In determining a defendant’s sentence following the revocation of probation,

a district court must consider the statutory requirements of 18 U.S.C. § 3565(a)(2),

as well as the policy statements contained in Chapter 7 of the Sentencing

Guidelines. United States v. Cook, 291 F.3d 1297, 1299-1301 (11th Cir. 2002). 

The district court has statutory authority under § 3565(a)(2) to revoke a sentence of

probation and resentence the defendant according to subchapter A, which includes

the sentencing factors enumerated in § 3553(a). See 18 U.S.C. §§ 3551-59. The

district court must also calculate an advisory sentencing range under Chapter 7 of

the Sentencing Guidelines. See U.S.S.G. § 7B1.4. Although the Chapter 7 policy
3

statements focus on a defendant’s violation of supervised release, “[the] chapter, to

the extent permitted by law, treats violations of the conditions of probation and

supervised release as functionally equivalent.” U.S.S.G. Ch. 7 pt. B, introductory

comment.

In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621,

the Supreme Court had no occasion to address the Sixth Amendment implications

of 18 U.S.C. § 3565(a)(2) or of Chapter 7 of the Sentencing Guidelines. Before

Booker, we held that following revocation of probation, “a court is authorized to

resentence a defendant without being restricted to the guideline range applicable at

the time of the initial sentencing hearing.” Cook, 291 F.3d at 1300. In Cook, we

also noted that the policy statements of Chapter 7 of the Sentencing Guidelines are

merely advisory in imposing a sentence upon the revocation of probation. Id. at

1301. Pre-Booker, the Supreme Court explained that the Sixth Amendment is not

applicable in revocation proceedings, and concluded that violations “need not be

criminal and need only be found by a judge under a preponderance of the evidence

standard.” See United States v. White, 416 F.3d 1313, 1318 (11th Cir. 2005)

(quoting Johnson v. United States, 529 U.S. 694, 700, 120 S.Ct. 1795, 1800, 146

L.Ed.2d 727 (2000) (addressing revocation of supervised release)). Sentencing

following the revocation of probation has always been advisory. Id. Like § 3565,
4

Booker also allows for advisory sentencing based on factors in 18 U.S.C. §

3553(a). 543 U.S. at 261, 125 S.Ct. at 766. 

Upon review of the record and the sentencing transcript, and upon

consideration of the briefs of the parties, we discern no reversible error. Despite the

lower advisory Guideline range, the record demonstrates that the district court

imposed Lamelas-Linares’s sentence of 36 months’ imprisonment after considering

a range of evidence, the Chapter 7 Guidelines imprisonment range of 8 to 14

months, the § 3553(a) sentencing factors, and the maximum statutory sentence for

each count of her original conviction. Pursuant to our decision in Cook, the district

court may exercise its discretion to resentence Lamelas-Linares outside the original

Guideline range. We find no error.

AFFIRMED.