IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-8407

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TERRY JAMES WILLIAMS,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

(May 20, 1992)

Before GOLDBERG, HIGGINBOTHAM, and DAVIS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

We answer whether a sentencing court may rely upon conduct

occurring after sentencing in departing upward in its sentence

after revoking probation. We conclude that 18 U.S.C. § 3565(a)

requires that the focus be upon the defendant's history and

conduct at the time the original sentence was imposed.

I.

Terry James William s pleaded guilty to assaulting a federal

o fficer. He was sentenced on April 29, 1991, to four years

probation, six months at a halfway house, 400 hours of community

service, a fine of $16,543.22, and a special assessment of $50.

His presentence report had calculated a base offense level of 6 and

a level III criminal history category resulting in a sentencing2

range of 2-8 months. The report also noted that an upward

departure might be warranted because Williams's criminal history

was more serious than that of most defendants in his criminal

history category.

In June 1991, the government moved to revok e Williams's

probation on the basis of his involvement in a barroom brawl and

his positive test for marijuana use. After deciding to revoke

Williams's probation on the basis of evidence presented by the

government supporting these claims, the court sentenced Williams to

16 months incarceration, an upward departure from the applicable

guideline range of 2-8 months. The district court gave the

following explanation for his upward departure:

It seems reasonable to me under the circumstances of this

case where Mr. Williams pled guilty to having the dirty

urine specimen, and in view of the fact that although it

wasn't part o f the motion for revocation, that he was

a ssociating with those that had been in trouble, an d

although it was not part of it that he was at a beer

joint consuming alcohol, there is no dispute of that. It

occurs to m e that the guideline if it is in fact eight

months, I will depart upward and impose a sentence of

sixteen months.

Williams appeals his sentence on the ground that the district

court improperly considered his conduct after the original

sen tencing hearing as the basis for an upward departure when

resentencing him under 18 U.S.C. §3565(a). Because we agree that

the upward departure by the district court was error, we need not

consider Williams's other grounds for appeal.

II.

The procedure for imposing sentence after revoking probation

is governed by 18 U.S.C. §3565(a), which provides that the district3

court may "impose any o ther sentence that was available under

subchapter A at the time of the initial sentencing." We have not

had occasion t o interpret this language in conjunction with the

sentencing guidelines, but other circuits have unan imously held

that upward departures based upon conduct occurring during

probation are not "available at t he time of the initial

sentencing." U nited States v. Alli

, 929 F.2d 995 (4th Cir. 1991);

United States v. Von Washington

, 915 F.2d 390 (8th Cir. 1990);

United States v. White

, 925 F.2d 284 (9th Cir. 1991); United States

v. Smith , 907 F.2d 133 (11th Cir. 1990).

We agree with these other circuits that when a defendant is

being sentenced after the revocation of his probation, the district

court may not upward depart from the guidelines range based upon

the defendant 's conduct occurring after the original sentencing.

The guidelines "control the imposition of a new sentence after

probation revocation in the sense that the original determinations

of total offense level and criminal history category, bas ed upon

relevant facts established at the time of sentencing, delimit the

sentences that were then available." S mith

, 907 F.2d at 135. The

court may upward depart from the guideline sentence, but must do so

on the ba sis of information which was before the court and would

have justified a departure at the original sentencing. Id . Once

t he district court has determined the appropriate guideline

sentencing range based upon the fac ts available at the original

sentencing, it may rely upon all relevant conduct, including4

probation-violating conduct, when determining the appropriate

sentence to impose within that range. White , 925 F.2d at 287.

The district court ex plicitly relied upon Williams's postsentencing conduct to support its upward departure. The government

asserts that because there were facts related to the severity of

Williams's criminal history on which the district court could have

based an upward departure, we should affirm the sentence on that

b asis. The appropriate standard for determining whether a

misapplication of the guidelines requires a remand is whether the

party defending the sentence "persuades the court of appeals that

the district court would have imposed the same sentence absent the

erroneous factor." W illiams v. United States

, 112 S.Ct. 1112, 1121

(1992). On this record, we cannot say that the district court

would have upward departed on the basis of Williams's criminal

history. The district court did not indicate that it was receptive

to the government's argument for departure on that basis and the

two grounds for departure are based upon quite different concerns.

We vacate Williams's sentence and remand for resentencing.

VACATED and REMANDED.