## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 3 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. MARK A. HOREK,

Defendant-Appellant. No. 97-2268

Appeal from the United States District Court for the District of New Mexico (D.C. No. 96-CR-694-JC)

John V. Butcher, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellant. Laura Fashing, Assistant United States Attorney (Jo hn J. Kelly, United States Attorney, with her on the brief), United States Att orney’s Office, Albuquerque, New Mexico, for Plaintiff-Appellee.

Before ANDERSON, McWILLIAMS, and MURPHY, Circuit Judges.

MURPHY , Circuit Judge.1 Horek’s unopposed motion to supplement the record o n appeal is granted. -2- Horek appeals a nine-month sentence of imprisonmentimposed upon revocation of his probation. Horek argues the sent ence is illegal because the district court failed to deduct the four months he served in community confinement as a condition of probation from the ma ximum sentence available for his original offense. This court rejects Horek’s argument that the time spent in community confinement as a condition of probation m ust be deducted from his maximum term of imprisonment and affirms. 1 Background The chronology of this case is not in dispute. In April 1994, Horek pleaded guilty to one count of obtaining bank funds by fals e pretenses, in violation of 18 U.S.C. § 2113(b). On January 20, 1995, the United States District Court for the Eastern District of Michigan sentenced Horek to thr ee years probation, which included a condition that he serve four months home detention. The court also ordered Horek to make restitution in the amount of $14,949.62. In sentencing Horek, the district court found, purs uant to the United States Sentencing Guidelines (U.S.S.G.), that Horek’s offe nse level was seven and his criminal history category was III, resulting in a g uideline imprisonment range of four to ten months. See U.S.S.G. ch. 5 pt. A. This four-to-ten-month imprisonment range is in Zone B of the Sentencing T able. See id . As indicated,-3-

however, the court did not impose a term of impriso nment. Instead, Horek was placed on probation pursuant to U.S.S.G. § 5C1.1(c) (3), which provides: If the applicable guideline range is in Zone B of t he Sentencing Table, the minimum term may be satisfied by . . . asentence of probation that includes a condition or combination of conditions that substitute intermittent confinement, community conf inement, or home detention for imprisonment according to the sc hedule in subsection (e). Subsection (e) allows one day of home detention to be substituted for one day of imprisonment. See id . § 5C1.1(e)(3). Similarly, one day of community confinement, which includes residence in a halfway house, may be substituted for one day of imprisonment. See id. § 5C1.1(e)(2). On February 3, 1995, the district court amended its original sentence and ordered that Horek serve four months in a communitycorrections center rather than four months home detention. Horek subsequentl y served four months in a halfway house. In December 1996, Horek’s probationwas transferred from the Eastern District of Michigan to the District of NewMexico. On March 6, 1997, the United States Probation Offic e filed a petition to revoke Horek’s probation on the grounds that he vio lated five conditions of his probation. Horek admitted to violating four of the five probation conditions alleged in the Petition for Revocation of Probation . At a sentencing hearing, the district court found that the violations were Grade C violations under U.S.S.G. § 7B1.1(a)(3) (policy statement). Because Horek’s original criminal history2Neither party has appealed the district court’s red uction of the sentence

from eleven months to nine months. -4- category was III, the court found that the applicab le guideline imprisonment range upon revocation of Horek’s probation was five to el even months pursuant to U.S.S.G. § 7B1.4(a) (policy statement). Horek was sentenced to eleven months imprisonment. Horek then filed a Motion to Reconsider and Correctan Illegal Sentence and to Reconsider Detention. At the hearing on thi s motion, the district court reduced Horek’s term of imprisonment from eleven mo nths to nine months, indicating that the sentence of eleven months mightviolate the Ex Post Facto Clause of the United States Constitution. 2 Horek argued that his sentence should be further decreased because he had already served four months in a halfway house as a condition of his probation. By Horek’s count, the two sentences when combined, i.e. , four months in the halfway house plus nine months imprisonment, were greater than his original guideline range of f our to ten months. The district court, however, did not further decrease Horek’s se ntence. Horek appeals the district court’s imposition of a nine-month sentence, arguing that the four months he served in communityconfinement must be deducted from the ten-month maximum sentence for hi s original offense, leaving six months as the maximum term of imprisonment whic h could lawfully be-5-

imposed upon revocation of his probation. This cou rt reviews the district court’s legal interpretation and application of the Sentenc ing Guidelines de novo

. See United States v. Maltais , 961 F.2d 1485, 1486 (10th Cir. 1992).
Discussion Horek’s argument rests on his contention that commu nity confinement as a condition of his probation is “imprisonment” withinthe meaning of the Sentencing Guidelines and must be deducted from the maximum guideline term of imprisonment when resentencing a defendant whose pr obation has been revoked. Under the Sentencing Guidelines, Horek’s offense le vel was seven and his criminal history category was III, resulting in a g uideline imprisonment range of four to ten months. See U.S.S.G. ch. 5 pt. A. Because this guideline rang e is in Zone B of the Sentencing Table, see id ., the district court had three options for satisfying Horek’s minimum four-month term of impri sonment, see id . § 5C1.1(c). Under U.S.S.G. § 5C1.1(c), the district court couldhave imposed (1) a sentence of imprisonment of at least four months; (2) a sent ence of at least one-month imprisonment plus a term of supervised release, with a condition that Horek be placed in community confinement or home detention f or at least the portion of the four-month minimum term not spent in actual impriso nment; or (3) a sentence of probation with a condition that Horek spend at leas t four months in intermittent3 Horek additionally argues in his reply brief that, “should this Court find

the district court’s sentence to be legal, . . . h e did not elect detention in a halfway house intelligently, i.e. , with comprehension that time in the halfway house, unlike time in prison, would yield no advant age toward a potential subsequent sentence for a parole violation.” Horekcontends that he was denied due process because he failed to receive notice that time spent in community confinement would not be considered time served tow ard his maximum term. While Horek made this argument at his hearing befor e the district court, he did not include it in his opening brief on appeal. Thi s court will not normally consider arguments raised on appeal for the first t ime in a reply brief. See United States v. Murray , 82 F.3d 361, 363 n.3 (10th Cir. 1996). Because H orek raised this issue on appeal only in his reply brief and be cause Horek has not offered any evidence that he would have declined probation if h e had received notice that time served in community confinement would not count against his maximum term, we do not address the merits of this argument

. -6- confinement, community confinement, or home detenti on. See also id . § 5C1.1 Application Note 3. The district court chose to forgo imposition of a s entence of actual imprisonment, instead sentencing Horek to a term of probation which included the condition that Horek spend four months in communityconfinement. The four months Horek spent in community confinement were cl early a “substitute” for imprisonment under § 5C1.1 of the Sentencing Guidel ines. See id . § 5C1.1(e)(2) (allowing one day of community confinement to be su bstituted for one day of imprisonment). Horek contends that because the fou r months he spent in community confinement were a substitute for impriso nment, thus satisfying his minimum period of imprisonment, they must be applie d against the maximum sentence he can now serve under the Sentencing Guid elines. 34 Chapter 7 of the Sentencing Guidelines, which addre sses revocation of

probation and supervised release, contains policy s tatements rather than actual guidelines. This court has held that the Chapter 7 policy statements are “advisory rather than mandatory in nature.” United States v. Hurst , 78 F.3d 482, 484 (10th Cir. 1996) (internal quotations omitted). -7- Although the Guidelines permit community confinement to be “substituted” for imprisonment, it does not necessarily follow th at the four months Horek spent in community confinement constituted “imprisonment” under the Guidelines. Instead, the four months Horek spent in community c onfinement are more properly viewed solely as a condition of probation. Section 5C1.1(c)(3) expressly provides that a court may impose “a sentence of pro bation that includes a condition or combination of conditions that substitute . . . community confinement . . . for imprisonment.” Id. § 5C1.1(c)(3) (emphasis added); s ee also id

. § 5B1.1(a)(2) (stating “probation is authorized if . . . the applicable guideline range is in Zone B of the Sentencing Table and the court imposes a condition or combination of conditions requiring intermittent confinement, community confinement, or home detention as provided in subse ction (c)(3) of § 5C1.1” (emphasis added)); id . § 5F1.1 (“Community confinement may be imposed as a condition of probation or supervised release.” (emphasis add ed)). The Sentencing Guidelines policy statements address ing revocation of probation 4 explicitly provide: “Upon revocation of probation , no credit shall be given (toward any sentence of imprisonment imposed) for any portion of the term-8-

of probation served prior to revocation.” See id . § 7B1.5(a) (policy statement). Horek concedes that, in accordance with this sectio n, he may not receive credit against the sentence imposed by the court for the f our-month period he spent in community confinement prior to revocation of his pr obation. He argues, however, that the four months must still be deducted from th e maximum ten-month sentence for his original offense, thus limiting the sentenc e which could lawfully be imposed to six months imprisonment. While this court acknowledges the distinction betwe en credit against a new sentence imposed and deduction from the maximum gui deline term, the Guidelines do not require time spent in community c onfinement to be treated differently in these two contexts. The intent of t he policy statement concerning credit upon revocation of probation is clear. A de fendant does not receive any credit against a sentence of imprisonment for any t erm of probation served. See id . Horek’s proposed interpretation would circumventthe purpose of this provision by crediting the time against the maximumguideline term, thus severely limiting the maximum sentence a district court coul d impose upon revocation of a defendant’s probation. Nothing in the Guidelines s upports this differential treatment of community confinement depending on the context. A more plausible interpretation of the Guidelines is that community confinement, as a condition of probation, is not “imprisonment” within the meaning of the Guidelines and,-9-

therefore, should not be credited against either th e sentence imposed on revocation of probation or the maximum guideline te rm. This result is in accord with the Eighth Circuit’s decision in United States
v. Iversen , 90 F.3d 1340 (8th Cir. 1996). Like Horek, the de fendant in Iversen appealed the legality of a sentence imposed upon re vocation of her probation. See id . at 1345. In Iversen , the defendant was originally sentenced to four ye ars probation with a condition that she spend three months in home detention. See id

. at 1341. Subsequently, her probation was revoked and she received the maximum sentence for her underlying offense, six months imp risonment and three years supervised release. See id . The defendant in Iversen appealed this sentence, arguing that because she had already served three m onths home detention, the maximum term of imprisonment she could legally rece ive was three months. See id . at 1345. In rejecting the defendant’s argument, the Eighth Circuit explicitly held that “[t]he fact that [the defendant] had alre ady served three months home detention as a condition of probation did not limitthe maximum sentence available to the district court in sentencing [the defendant] after revocation of her probation.” Id

. Similarly, in an unpublished decision referenced byHorek, United States v. Vogt , No. 96-1192, 1997 WL 20125 (10th Cir. 1997), this circuit upheld the legality of a sentence imposed upon revocation of p robation even though the5 Horek relies heavily on this court’s decision in United States v. Thomas ,

68 F.3d 392 (10th Cir. 1995). The Thomas decision, however, was based on Kansas law rather than the Federal Sentencing Guide lines. See id . at 394-95. In Thomas , the defendant was charged under the Assimilative Crimes Act (ACA) with driving under the influence of alcohol. See id . at 393. He pleaded guilty and was sentenced to probation, which was later extende d to include a six-month period of home detention. See id . Although the defendant successfully completed the six-month period of home detention, his probati on was subsequently revoked and he was sentenced to ninety days incarceration. See id . On appeal, the defendant argued the ninety-day sentence was illega l because he had already served the six-month statutory maximum permitted un der Kansas law through home detention. See id . He contended that the Federal Sentencing Guideli nes recognize home detention as incarceration. See id

. While this court noted in Thomas that “if [a] defendant has already served the statutory maximum term of incarceration under t he applicable sentencing scheme, additional incarceration would constitute a n illegal sentence,” id . at 393, it did not decide whether home detention constitute d incarceration under the Guidelines, see id . at 393-94. Instead, this court merely recited th e federal statutes and guidelines upon which the defendant re lied and then, without deciding whether these authorities were persuasive, determined they were inapposite because Kansas law was controlling underthe ACA. See id . Based on its analysis of Kansas law, this court upheld the l egality of the defendant’s sentence, concluding that under state law home dete ntion was not the same as imprisonment. See id . at 395. Horek’s reliance on Thomas is therefore misplaced. -10- length of the new sentence, combined with the time spent previously on probation, exceeded the guideline range applicable for the defendant’s original offense. 5 In Vogt , the defendant’s original guideline range was zero to six months imprisonment and zero to three years supervised rel ease. See id . at *1 n.1. The defendant was originally sentenced to three years p robation, with a condition requiring ninety days home detention. See id . at *1. Upon revocation of his probation, the court resentenced the defendant to f our months imprisonment-11-

followed by two years supervised release. See id. The defendant challenged his sentence, arguing that “the length of the new sente nce, combined with the time he had already spent on probation, impermissibly excee ded the maximum sentence available when he was initially sentenced.” Id. Relying on U.S.S.G. § 7B1.5(a) (policy statement), this court noted that “[w]hen p robation is revoked, the district court is not permitted to give the defendant creditfor time spent on probation in calculating the length of the new sentence imposed. ” Id . at *4. The court therefore upheld the defendant’s sentence because “ [w]hen the time spent on probation [was] disregarded, [the defendant’s] sent ence [was] well within the authorized limits.” Id. If this court disregards the time Horek has prev iously spent on probation, including the time spent in com munity confinement as a condition of that probation, his new sentence is cl early within his initial guideline
range. While the district court could have initially impos ed a sentence of imprisonment, it granted Horek the benefit of the d oubt and imposed probation with the condition that Horek spend four months in community confinement. Having violated his probation, Horek does not now r eceive credit against the maximum guideline term of imprisonment for the time that he served in community confinement. The nine-month sentence of imprisonment is therefore legal.-12-

The judgment of the United States District Court fo r the District of New Mexico is AFFIRMED

.No. 97-2268, United States v. Horek

McWilliams, J., dissents. In my view the majority opinion does not follow the teaching of United States v. Thomas, 68 F.3d 392 (10th Cir. 1995). In Thomas , we, at the very outset of our opinion, posited that case as one arising “i n the context of punishment for a misdemeanor when the state law and the federal sent encing guidelines treat home detention differently.” Although Thomas involved “home detention,” the four months which Horek completed in “community confinem ent” at a “halfway house” under the rationale of Thomas constitutes imprisonment under the guidelines to the end that, upon subsequent revocat ion of his probation, Horek could only be sentenced to a maximum term of six mo nths imprisonment, where, as here, the maximum sentence under the applicable statutes and guidelines for the underlying crime is ten months. Ten months min us four months equals six months. In the instant case, the district court, upon revocation of Horek’s probation, sentenced him to imprisonment for nine m onths, which, under the rationale of Thomas is an “illegal” sentence by three months. Accordingly, I would reverse and remand for resente ncing to no more than six months imprisonment, and credit Horek with the time he has already served in the federal correctional institution in Forest City , Arkansas.