FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 21, 2002

THOMAS K. KAHN

CLERK

 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

__________________________

No. 01-15881

Non-Argument Calender

_________________________

D.C. Docket No. 00-00279-CR-MHS-1-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SANDRA COOK,

 Defendant-Appellant.

__________________________

Appeal from the United States District Court for the

Northern District of Georgia

_________________________

(May 21, 2002)

Before TJOFLAT, BIRCH and HULL, Circuit Judges.

PER CURIAM:

The defendant Sandra Cook appeals her sentence of twenty-four months in

prison, which was imposed pursuant to 18 U.S.C. § 3565(a)(2) upon the revocation
2

of her probation. After review, we affirm.

I. BACKGROUND

A. Original Sentence

On January 24, 2001, Cook pled guilty to one count of interstate transportation

of stolen checks, for which the statutory maximum penalty is ten years in prison. See

18 U.S.C. § 2314. At her sentencing hearing on April 12, 2001, the district court

calculated Cook’s base offense level to be 7, with a criminal history category of III,

and an applicable guideline range of four to ten months under the United States

Sentencing Guidelines. The district court sentenced Cook to a term of three years on

probation, plus payment of a special assessment and restitution. The district court

stated that it was imposing a modest sentence because it felt that Cook deserved a final

opportunity to “get her life straightened out.” Thus, among the conditions of

probation, Cook was required (1) to serve four months in a half-way house, (2) to

participate in a drug and alcohol treatment program as directed by the probation

office, and (3) to refrain from any unlawful use of a controlled substance and submit

to drug tests as directed by the probation office. The district court warned Cook that

she would receive the “maximum jail time” if she violated the terms and conditions

of her probation. On May 30, 2001, Cook entered a half-way house. 

B. Modification of Probation
3

In July 2001, Cook was discharged from the half-way house because she had

violated numerous rules. Shortly thereafter, Cook’s probation officer petitioned the

court to issue a warrant and order for Cook to show cause why her probation should

not be revoked. At a hearing on August 24, 2001, Cook admitted that she had violated

her probation. The district court modified Cook’s probation by requiring (1) her

placement on a electronic monitoring system for four months and (2) her participation

in a mental health aftercare program. The district court also repeated its warning to

Cook that she would face the maximum time the court could impose if she violated

her probation.

C. Revocation of Probation

Cook continued to have problems complying with the terms and conditions of

her probation. On September 4, 2001, Cook’s probation officer again petitioned the

court to issue a warrant and order Cook to show cause why her probation should not

be revoked. The allegations in this probation revocation petition stated that Cook had

tested positive for cocaine use on May 30th and August 24th of that year.

Subsequently, this petition was amended to allege additionally that Cook had failed

twice to report to random drug screenings and had failed once to report to the

probation office. 

At a hearing on September 24, 2001, Cook admitted that she had tested positive
1

At the September 24th hearing, Cook argued that the positive results from drug tests

conducted on May 30th and August 24th should not be considered as grounds for revoking

probation because the drug use occurred before the August 24th hearing, in which the district

court had modified probation. However, the government indicated that Cook failed the drug test

on August 24th after the hearing had already been conducted on that day. Implicitly rejecting

Cook’s argument by considering Cook’s failed drug tests as one of the grounds for revocation,

the district court concluded that Cook violated the terms and conditions of her probation. 

Because on appeal Cook challenges only the length of her sentence and does not challenge the

district court’s finding that she actually violated her probation, we do not address whether the

timing of the failed drug tests was significant.

2

We review de novo the legality of a sentence. See United States v. Aimufa, 122 F.3d

1376, 1378 (11th Cir. 1997) (sentence imposed pursuant to revocation of a term of supervised

4

for drugs on the two occasions alleged in the revocation petition.1 The district court

determined that Cook had violated the conditions of her probation and sentenced Cook

to twenty-four months in prison with no supervised release to follow. In so doing, the

district court explained that Cook had a history of noncompliance with the terms and

conditions of her probation, including her termination from the half-way house, her

drug usage, and her failure to report as required by the probation office. Moreover,

recognizing Cook’s drug problem, the district court specifically requested that Cook

receive 500 hours of drug treatment while she was incarcerated. 

After the district court imposed the twenty-four month sentence, Cook objected

that the sentence exceeded both (1) the four to ten month guideline range available at

her initial sentencing and (2) the five to eleven month sentencing range in Chapter

Seven of the Sentencing Guidelines. Cook also raises these issues on appeal, which

we address in turn.2
release). A district court’s decision to depart from the Chapter Seven recommended sentencing

range is reviewed for an abuse of discretion. United States v. Dunham, 240 F.3d 1328, 1330

(11th Cir. 2001). 

5

 II. DISCUSSION

A. Section 3565

Courts have authority to sentence defendants after probation revocations

pursuant to 18 U.S.C. § 3565. Under the pre-1994 amendment version of § 3565,

district courts were not permitted to impose a greater sentence after revocation of

probation than was originally available based on the relevant facts established at the

time of the initial sentencing. See United States v. Smith, 907 F.2d 133, 135 (11th

Cir. 1990). Thus, post-sentencing conduct was relevant to probation revocation

proceedings only in terms of influencing the court’s decision to revoke probation and

its selection of a sentence within the guideline range available at the initial sentencing.

Id. at 136. Specifically, this prior version of § 3565 required a district court upon

revoking a defendant’s probation to “impose any other sentence that was available

under subchapter A at the time of the initial sentencing.” 

18 U.S.C. § 3565(a)(2) (1988).

In September 1994, Congress amended § 3565(a)(2) by removing the limitation

of the sentence to that available at the time of initial sentencing and replacing it with

only the requirement that a district court “resentence the defendant under subchapter
3

Although this Court has concluded previously that a district court cannot exceed the

original guideline range when resentencing a probationer, these cases do not apply in this case 

because they were decided under, and with specific reference to, the pre-1994 amendment

version of § 3565. See, e.g., United States v. Hurtado-Gonzalez, 74 F.3d 1147, 1150 (11th Cir.

1996); United States v. Milano, 32 F.3d 1499, 1502 (11th Cir. 1994); United States v.

Granderson, 969 F.2d 980, 984-85 (11th Cir. 1992), aff’d, 511 U.S. 39 (1994); Smith, 907 F.2d

at 135. 

6

A.” 18 U.S.C. § 3565(a)(2) (2000). Several other circuits have expressly interpreted

the 1994 amendment to § 3565 as empowering the district court to resentence a

defendant following revocation of probation without being limited to the sentencing

range available at the time of original sentencing. See, e.g., United States v. Hudson,

207 F.3d 852, 853 (6th Cir. 2000); United States v. Pena, 125 F.3d 285, 287 (5th Cir.

1997); United States v. Schaefer, 120 F.3d 505, 507 (4th Cir. 1997) (noting that the

amended § 3565(a)(2) “plainly permits a district court to begin the sentencing process

anew and to impose any sentence appropriate under the provisions of subchapter A”).3

We agree that under the plain language of § 3565(a)(2), as amended, a court is

authorized to resentence a defendant without being restricted to the guideline range

applicable at the time of the initial sentencing hearing; instead, a court must only

comply with subchapter A in sentencing the defendant. See 18 U.S.C.

§ 3565(a)(2). 

The defendant Cook asserts that this Court should follow the Eighth and Ninth

Circuits in holding that the district court’s sentencing discretion upon probation
4

In Iverson, the Eighth Circuit observed that the sentence the district court imposed after

the defendant’s probation revocation was within the range of sentences available at the time of

initial sentencing. 90 F.3d at 1345. The court further noted that “the [1994] amendment [to 

§ 3565] does not alter the district court’s power to sentence a probation violator within the range

of sentences available at the time of the initial sentence.” Id. at 1345 n.6. Thus, the Iverson

decision is not inconsistent with the holding that a court has the power to sentence a defendant

beyond that which was available at the time of her initial sentencing.

Similarly, in Plunkett, the Ninth Circuit held, in part, that § 3565 “give[s] the trial court

discretion to sentence a probation violator to the range of sentences available at the time of

original sentencing.” 94 F.3d at 519. In sentencing the probation violator in Plunkett, the district

court had determined that the proposed term of imprisonment in Chapter Seven of the

Sentencing Guidelines was “inadequate.” Id. at 518. Thus, the district court returned to the

original guideline range of 57 to 71 months, rather than applying the proposed term of 6 to 12

months in prison stated in Chapter Seven. Id. Thus, Plunkett, like Iverson, does not stand for

the proposition that a district court must sentence a probation violator to a sentence available at

the time of the initial sentencing, but rather that a district court may exercise its discretion to

sentence a defendant within the original range. 

7

revocation continues to be limited to the guideline range available at the time of initial

sentencing, even after the 1994 amendment to § 3565. See United States v. Plunkett,

94 F.3d 517, 519 (9th Cir. 1996); United States v. Iverson, 90 F.3d 1340, 1345 & n.6

(8th Cir. 1996). A closer examination of the cases cited by Cook, however, reveals

that they do not hold that a district court must sentence a probation violator to a

sentence available at the time of the initial sentencing hearing, but rather that a district

court may sentence a probation violator within the range that was available at the time

of the initial sentencing.4

B. Policy Statements in Chapter Seven

Alternatively, Cook argues that even if the sentencing range available at the

time of her initial sentencing does not control, the district court erred in imposing a
5

The reference to 28 U.S.C. § 994(a)(3) indicates that courts are directed to consider

guidelines or policy statements specifically relating to probation revocations. See 28 U.S.C.

§ 994(a)(3) (“The Commission . . . shall promulgate and distribute to all courts of the United

States and to the United States Probation System . . . guidelines or general policy statements

regarding the appropriate use of the provisions for revocation of probation set forth in section

3565 of Title 18 . . . .”).

8

twenty-four month sentence under subchapter A, which is 18 U.S.C. §§ 3551-3559.

Subchapter A contains general provisions regarding the imposition, review, and

implementation of sentences. Most significant for purposes of this appeal, § 3553(a)

lists the factors the district court shall consider in determining the particular sentence

to impose. For example, a district court “shall consider . . . the need for the sentence

imposed . . . to provide the defendant with . . . medical care, or other correctional

treatment.” 18 U.S.C. § 3553(a)(2)(D). In addition, a district court “shall consider

. . . the applicable guidelines or policy statements issued by the Sentencing

Commission pursuant to section 994(a)(3) of title 28, United States Code.” 18 U.S.C.

§ 3553(a)(4)(B) (emphasis added).5

 

The Sentencing Commission has not yet promulgated any binding probation

revocation guidelines; instead, the Sentencing Commission has opted for the

flexibility of advisory policy statements, which are nonbinding on the courts. See

U.S.S.G. ch. 7, pt. A (1), (3)(a); United States v. Hofierka, 83 F.3d 357, 361 (11th Cir.

1996); United States v. Milano, 32 F.3d 1499, 1503 (11th Cir. 1994). One of the

policy statements in Chapter Seven of the Sentencing Guidelines contains a table with
6

We note that Cook also contends that the introduction to the Chapter Seven policy

statements supports her first argument that the 1994 amendment to § 3565 did not broaden 

district courts’ authority to sentence probation violators above the guideline range available at

the initial sentencing hearing. Specifically, the introduction to Chapter Seven provides that “if

the court finds that a defendant violated a condition of probation, the 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). However, to the extent that the introduction in Part A of Chapter Seven could be

considered a part of the policy statements, which are contained in Part B, the policy statements

of the Sentencing Guidelines are advisory, not binding. See, e.g., Milano, 32 F.3d at 1503. 

9

terms of imprisonment for defendants whose probation periods have been revoked.

The terms of imprisonment in this table are based on the grade of the probation

violation and the defendant’s criminal history category at the time of the original

sentencing hearing. See U.S.S.G. § 7B1.4; Milano, 32 F.3d at 1501.

Although conceding that the Chapter Seven policy statements and sentencing

ranges are not binding, see, e.g., Milano, 32 F.3d at 1503, Cook argues that the district

court erred in sentencing her to twenty-four months in prison because that sentence

is well above the recommended imprisonment range of five to eleven months that

would apply to her under the table in Chapter Seven of the Sentencing Guidelines.

See U.S.S.G. § 7B1.4.6

 However, § 3553 requires a court only to consider the Chapter

Seven policy statements in determining a defendant’s sentence. 18 U.S.C. §

3553(a)(4)(B). 

In this case, a review of the transcript from the revocation hearing reveals that

the district court determined that the sentence of two years in prison – a sentence
7

Section 3553(c)(2) states that if a court imposes a sentence “outside the range, described

in subsection (a)(4), [the court must provide] the specific reason for the imposition of a sentence

different from that described.” 18 U.S.C. § 3553(c)(2). Here, the district court explained its

reasoning for sentencing Cook to two years in prison, stating, for example, as follows:

Well, some of these events might be beyond her control and maybe she

needs some long period of incarceration where she can, hopefully, receive

treatment; it’s not working with her on the outside.

. . . .

And the court has imposed a two-year sentence because of your history of

noncompliance with these conditions. And the court is aware that you have been

terminated from the halfway house previously, due mainly, I believe, to attitude

and your behavior there.

Of course, the court understands that you have a drug problem and that is

the reason why, in some cases, you fail to report, and in other cases, you report

positive for cocaine.

. . . .

The Court will ask that the sentence include some type of program that

would give you 500 hours of drug treatment while you are incarcerated, if it’s

available.

And, Ms. Cook, you’re still a relatively young woman, you can still get

your life straightened out; and maybe in a confined area and with discipline that’s

required with the treatment and with the treatment that’s available, you can make

a fresh start.

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beyond the recommended range in Chapter Seven – was necessary, in large part, for

purposes of Cook’s drug rehabilitation and treatment.7

 Among the factors outlined in

§ 3553(a) for a district court’s consideration in sentencing is the defendant’s need for

correctional treatment. 18 U.S.C. § 3553(a)(2)(D); see United States v. Dunham, 240

F.3d 1328, 1330 (11th Cir. 2001) (concluding that the district court did not abuse its

discretion in considering the availability of drug treatment in imposing a sentence

exceeding that which was recommended in Chapter Seven). Accordingly, we

conclude that the district court did not err, nor did it abuse its discretion, in sentencing
11

Cook beyond the Chapter Seven recommended range. 

III. CONCLUSION

In summary, the district court did not err in ordering Cook to serve a sentence

of twenty-four months in prison because the district court complied with the

provisions of subchapter A. For the foregoing reasons, we affirm the district court’s

order, dated September 24, 2001, which sentenced Cook to twenty-four months in

prison.

AFFIRMED.