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UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-50900

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

HUMBERTO PENA,

Defendant-Appellant.

Appeal from the United States District Court

For the Western District of Texas

October 7, 1997

Before JONES, EMILIO M. GARZA and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Defendant-Appellant Humberto Pena (“Pena”) appeals his

sentence imposed after revocation of probation. We affirm

FACTS AND PROCEEDINGS BELOW

Pena pleaded guilty in April 1996 to one count of illegal

transportation of aliens. Pena’s total offense level of 9 and his

Category I criminal history score resulted in a guideline

imprisonment range of four to ten months. The district court

sentenced Pena to a five-year term of probation, with no prison
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time. On September 10, 1996, the Government moved to revoke Pena’s

probation, asserting that Pena, since his sentencing, had been

arrested for possession of drug paraphernalia and had twice tested

positive for marijuana, cocaine and morphine use. Pena pleaded

true to the charges. The district court found that the most

serious of the charges was a “grade C violation” under the

Sentencing Guidelines and that Pena’s guideline imprisonment range

upon revocation of probation was three to nine months. See

U.S.S.G. 1§ 7B1.1(a)(3), 7B1.4(a). The district court, however,

revoked Pena’s probation and sentenced him to two years in prison,

reasoning that “primarily what this man needs [is] to . . . clean

out his body for about two years and see if he can’t get the cure.”

DISCUSSION

Pena contends that the district court erred in not sentencing

him within the range set forth for probation revocation in Chapter

7 of the Sentencing Guidelines. This court “will uphold a sentence

unless it (1) was imposed in violation of law, (2) resulted from an

incorrect application of the guidelines, (3) was outside the

guideline range and is unreasonable, or (4) was imposed for an

offense for which there is no applicable sentencing guideline and

is plainly unreasonable.” United States v. Teran, 98 F.3d 831, 836

(5th Cir. 1996). 

If a defendant violates a condition of probation, the district

court, after a hearing, may revoke the sentence of probation and

resentence the defendant under Subchapter A, the General Provisions

section which deals with sentences, found at 18 U.S.C. §§ 3551-
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3559. See 18 U.S.C. § 3565(c). Section 3553(a) lists, inter alia,

the following factors that the court “shall consider” in imposing

a sentence:

(2) the need for the sentence imposed . . .

(D) to provide the defendant with needed

education or vocational training, medical

care, or other correctional treatment in the

most effective manner; 

(4) the kinds of sentences and the sentencing range

established for . . .

(B) in the case of a violation of probation or

supervised release, the applicable guidelines

or policy statements issued by the Sentencing

Commission pursuant to section 994(a)(3) of

Title 28, United States Code;

(5) any pertinent policy statement issued by the

Sentencing Commission pursuant to 28 U.S.C. § 994(a)(2)

that is in effect on the date the defendant is

sentenced[.]

18 U.S.C. § 3553(a). Implicit consideration of the § 3553(a)

factors is sufficient. Teran, 98 F.3d at 836.

However, “[b]ecause there are no applicable guidelines for

sentencing after revocation of probation, see U.S.S.G., Ch. 7,

Pt.A.1 (‘At this time, the Commission has chosen to promulgate

policy statement only.’),” this court will uphold a resentencing

following probation revocation “unless it is in violation of law or

is plainly unreasonable.” Teran, 98 F.3d at 836 (citing United

States v. Mathena, 23 F.3d 87 (5th Cir. 1994)(involving revocation

of supervised release)); see also United States v. Escamilla, 70

F.3d 835, 835 (5th Cir. 1995)(policy statements in Chapter 7 of the

Sentencing Guidelines are not “binding”), cert. denied, 116 S. Ct.

1368 (1996). Pena’s arguments that his sentence is a departure
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from applicable Guidelines without proper notice and on an invalid

basis is foreclosed by Teran’s holding that there are no Guidelines

promulgated for probation revocation.

Pena argues that our holding in United States v. Williams, 961

F.2d 1185 (5th Cir. 1992) prohibits the sentence imposed in this

case. In Williams, this court held 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.” Id.

at 1187. The court stated that, although the district court may

depart upward from the guideline sentence, it “must do so on the

basis of information which was before the court and would have

justified a departure at the original sentencing.” Id. The

Williams holding is not instructive in the present case because it

was based on a previous version of 18 U.S.C. § 3565(a), which

provided that the district court may “impose any other sentence

that was available under subchapter A at the time of the initial

sentencing.” Id.; see § 3565(a)(2)(1984). The 1994 Amendments to

§ 3565 substituted “resentence the defendant under subchapter A”

for the statutory language under consideration in Williams. Pena

urges us to follow two of our sister circuits which have held that

the amended statute continues to give a district court the

authority to resentence a probation violator only within the range

of sentences available at the time of the initial sentence. See

United States v. Iversen, 90 F.3d 1340, 1345 & n.6 (8th Cir. 1996);

United States v. Plunkett, 94 F.3d 517, 519 (9th Cir. 1996). Teran
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and Mathena are at least instructive on the issue of whether this

circuit should adopt such a restrictive reading of the current

statute. Indeed, Teran and Mathena could reasonably be read to

even foreclose such a reading. We therefore decline to follow the

Eighth and Ninth Circuit authority. Because there are no

guidelines for sentencing on revocation of probation, and because

the district court was not limited to the sentencing range

available at the time of the initial sentence, we find no error in

the trial court’s failure to employ the analysis normally required

in departure case. See Koon v. United States, ___U.S.___, 116 S.

Ct. 2035, 135 L. Ed. 2d 392 (1996). 

We must, however, determine whether the sentence imposed was

“plainly unreasonable.” See Teran, 98 F.3d at 836. Pena

characterizes the sentence as unreasonable because it was imposed

as a punishment for his status as a drug addict, which is

unconstitutional. See Robinson v. California, 370 U.S. 660, 667

(1962)(statute criminalizing status of drug addiction

unconstitutional). It is undisputed that Pena repeatedly violated

the conditions of his probation by using at least different

controlled substances. The sentence punishes the violation of the

terms of his probation, not his drug addict status. Further, it

was undisputed at the revocation hearing that Pena needed inpatient treatment for his drug addiction. The probation officer

advised the district court that an intensive 500-hour drug

rehabilitation program would be available to Pena while he was

serving his sentence with the Bureau of Prisons. The district
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court specifically included the 500-hour program in its order

revoking Pena’s probation. Not only was Pena’s need for drug

rehabilitation an appropriate consideration, it falls within 18

U.S.C. § 3553(a)(2)(D)’s mandate that the court shall consider the

need for “medical care or other correctional treatment in the most

effective manner.” Finally, the twenty-four month term of

imprisonment was within the statutory range of punishment for

Pena’s offense of conviction and was thus clearly legal. 

Concluding that Pena’s sentence was imposed for an offense for

which there is no applicable sentencing guideline and that it is

not plainly unreasonable, United States v. Teran, 98 F.3d 831, 836

(5th Cir. 1996), we affirm.

AFFIRM.