United States Court of Appeals,

Eleventh Circuit.

No. 95-4311

Non-Argument Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

Carlos Alberto HURTADO-GONZALEZ, Defendant-Appellant.

Feb. 12, 1996.

Appeal from the United States District Court for the Southern

District of Florida. (No. 87-386-CR-JWK), James W. Kehoe, District

Judge.

Before ANDERSON, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

Appellant Carlos Alberto Hurtado-Gonzalez ("Hurtado") appeals

his sentence imposed by the United States District Court for the

Southern District of Florida. For the reasons that follow, we

affirm.

I. BACKGROUND FACTS

A federal grand jury in the Southern District of Florida

indicted Hurtado in a three-count indictment charging: (1)

possession of counterfeit currency with the intent to defraud, in

violation of 18 U.S.C. §§ 472 and 2; (2) the importation of

counterfeit currency into the United States with the intent to

defraud, in violation of 18 U.S.C. §§ 472 and 2; and (3)

conspiracy to possess and to import into the United States

counterfeit currency with the intent to defraud, in violation of 18

U.S.C. § 371. The criminal conduct that formed the basis for the

indictment occurred prior to May 29, 1987.
Hurtado went to trial on the charges against him and was

convicted on all three counts. The district court sentenced

Hurtado to eighteen months of imprisonment for his conspiracy

conviction, ordered that he be deported upon completion of his term

of imprisonment, and suspended his sentence on the remaining two

counts of conviction for a probation period of five years following

his release from prison. During the probationary period, Hurtado

was required—among other things—to refrain from violating any law

of the United States or the several states and to reenter the

United States only with the written permission of the Attorney

General. The sentence Hurtado received was not imposed under the

then-newly enacted United States Sentencing Guidelines ("U.S.S.G."

or "the Guidelines"), because Hurtado's criminal conduct occurred

prior to the Guidelines' effective date of November 1, 1987. See

United States v. Burgess, 858 F.2d 1512, 1514 (11th Cir.1988)

(holding that the Guidelines are not applicable to criminal

offenses committed before November 1, 1987).

Hurtado was duly deported after his release from prison, but

he thereafter returned to the United States during his probationary

period and engaged in additional criminal conduct, namely, drug

trafficking. Hurtado eventually pled guilty to conspiracy to

possess cocaine with the intent to distribute, and he was sentenced

to another term of imprisonment by the United States District Court

for the Middle District of Florida. While serving that sentence,

Hurtado was brought back before the United States District Court

for the Southern District of Florida for a probation revocation

hearing based on his illegal reentry and subsequent commission of
a federal drug offense. The district court stated at the hearing

that it would not consider Hurtado's illegal reentry into the

United States "as far as his probation violation" was concerned,

but it nevertheless found that Hurtado had violated a condition of

his probation "by committing an additional [criminal] offense"

during his probationary period (R2:6).

Having found a violation sufficient to revoke Hurtado's

probation, the district court moved on to the sentencing stage of

the hearing. At that stage, Hurtado's counsel noted as "an

interesting factor" that Hurtado's sentencing range under the

Guidelines would have been ten to sixteen months, but next stated

that "[t]he important thing is ... the Court does have the

discretion to give [Hurtado] any sentence it wants" (R2:11). The

district court exercised its discretion and sentenced Hurtado to

five years of imprisonment on each of the two counts of conviction

for which sentence had originally been suspended in 1987. The

district court decided that these two sentences would run

concurrently with each other, but that they would run consecutively

to the sentence Hurtado had received for his cocaine conspiracy

conviction.

Hurtado objected to his sentence, again noting that under the

Guidelines his sentencing range would only have been ten to sixteen

months. Specifically, Hurtado's counsel stated:

[T]his is originally not a Guideline sentence, but because a

defendant who is facing this case would be under the

Guidelines today, since the law has changed to make it more

favorable for Mr. Hurtado, I think the court—it behooves me to

not [sic] request that the Court sentence Mr. Hurtado as he

would be if the Guidelines were in effect for his sentence and

that sentence would be substantially less than the five year

sentence he is receiving for the, as the court has just
imposed (R2:17).

The district court overruled Hurtado's objection, and this appeal

ensued.

II. ISSUE

Hurtado raises one issue on appeal: Whether a probation

violation for a pre-Guidelines offense is subject to the Sentencing

Guidelines where the conduct resulting in the probation violation

occurred after November 1, 1987.

III. STANDARD OF REVIEW

 We review a pre-Guidelines sentence for an abuse of

discretion. United States v. Hall, 47 F.3d 1091, 1099 (11th Cir.),

cert. denied, --- U.S. ----, 116 S.Ct. 71, 133 L.Ed.2d 31 (1995).

IV. ANALYSIS

 The question presented in this appeal is one of first

impression in this circuit. Persuasive authority from the Second

Circuit, however, holds that "where a defendant was originally

sentenced prior to the Guidelines, the Guidelines are inapplicable

to sentencing following revocation of probation." United States v.

Vogel, 54 F.3d 49, 51 (2d Cir.1995). The Second Circuit found that

the plain language of 18 U.S.C. § 3565(a), which controls probation

revocations, governed. Id. at 50. That section provides that when

a defendant violates a condition of probation, the court "may

revoke the sentence of probation and impose any other sentence that

was available ... at the time of the initial sentencing." 18

U.S.C. § 3565(a). The court thus concluded that § 3565(a) freed

the district court from having to apply the Guidelines when

imposing a prison sentence following revocation of pre-Guidelines
probation because the Guidelines "were not applicable to [Vogel's]

original criminal conduct and ... were therefore unavailable at the

time of his original sentencing." Vogel, 54 F.3d at 50.

The only basis Hurtado provides for rejecting the Second

Circuit's reasoning is that sentencing him under the Guidelines

would promote the Guidelines' goal of sentencing uniformity. This

claim fails on various grounds. First, "uniformity in sentencing"

appears not to be a goal of the Guidelines insofar as probation

revocations are concerned. The Sentencing Commission has expressly

decided to issue only "advisory policy statements" on probation

revocation rather than to promulgate mandatory guidelines in order

to "provid[e] greater flexibility to ... the courts," which of

course opens the door to less uniform sentencing. U.S.S.G., Ch. 7,

pt. A, p.s. 3(a). Second, ordering a district court to sentence

Hurtado as it would sentence a recently convicted counterfeiter

would not lead to uniform sentencing. To do so would ignore the

fact that Hurtado was given the opportunity to avoid imprisonment

altogether by obeying his probation conditions—an opportunity he

forfeited by committing additional crimes. Third, to adopt

Hurtado's approach would create serious ex post facto problems in

cases where the Guidelines call for a greater sentence than a

district court might otherwise impose.

Finally, and most importantly, this court has held that

defendants sentenced under the Guidelines must, upon the revocation

of their probation, be sentenced in accordance with the sentences

available at the time they were originally sentenced. See United

States v. Smith, 907 F.2d 133, 135 (11th Cir.1990); United States
v. Granderson, 969 F.2d 980, 984-85 (11th Cir.1992), cert. denied,

--- U.S. ----, 113 S.Ct. 3059, 125 L.Ed.2d 742 (1993); United

States v. Milano, 32 F.3d 1499, 1502 (11th Cir.1994). Thus, Smith,

Granderson, and Milano, like Vogel, rely on the premise that under

§ 3565(a) a district court is limited in sentencing a defendant

after probation revocation only by whatever limits existed when it

originally sentenced the defendant to probation. Because the

Guidelines did not apply when the district court initially

sentenced Hurtado to probation, the Guidelines cannot now limit the

district court in sentencing Hurtado for the probation violation.

See Vogel, 54 F.2d at 51. Accordingly, for the foregoing reasons,

we affirm Hurtado's sentence.

AFFIRMED.