UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-10836

Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TONY McCULLOUGH,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

( February 15, 1995 )

Before POLITZ, Chief Judge, HIGGINBOTHAM and DeMOSS, Circuit

Judges.

POLITZ, Chief Judge:

Tony R. McCullough pleaded guilty to theft of money from a

bank and was sentenced to five years probation, later modified to

three years probation. He violated a condition of his probation,

causing it to be revoked, and McCullough was sentenced to nine

months imprisonment, followed by two years supervised release.

McCullough timely appealed this sentence.

McCullough maintains on appeal that the district court erred

by imposing a term of supervised release following the period of

imprisonment. He contends that a sentence of supervised release is
 

118 U.S.C. § 3565 provides in pertinent part:

(a) If the defendant violates a condition of probation at

any time prior to the expiration or termination of the

term of probation, the court may . . .

(2) revoke the sentence of probation and

impose any other sentence that was available

under subchapter A [18 U.S.C. §§ 3551 et seq.]

at the time of the initial sentencing.

 

2United States v. Mathena, 23 F.3d 87 (5th Cir. 1994).

 

3United States v. Calverley, 37 F.3d 160 (5th Cir. 1994) (en

banc) (citing United States v. Olano, _____ U.S. _____, 113 S.Ct.

1770, 123 L.Ed.2d 508 (1993)).

 

4Calverley.

2

not available under subchapter A as referred to in 18 U.S.C.

§ 3565(a)(2).1

A sentence imposed after revocation of probation is reviewed

de novo and will be upheld unless it is in violation of law or is

plainly unreasonable.2 The government correctly notes that

McCullough did not object timely to the imposition of a term of

supervised release. In the absence of a contemporaneous objection,

we may correct only errors that are clear or obvious under current

law and which affect the defendant's substantial rights.3 If these

requirements are met, the court has the discretion to grant relief

but will do so only when the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.4

The sentencing court herein did not err. When a defendant

violates a condition of probation, 18 U.S.C. § 3565(a)(2) directs

the court to "revoke the sentence of probation and impose any other

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

5See also United States v. Hobbs, 981 F.2d 1198, 1199 (11th

Cir.), cert. denied, 114 S.Ct. 103 (1993) ("District courts are

authorized to impose a period of supervised release as a

consequence of probation revocation.").

3

initial sentencing." It is abundantly clear that when initially

sentenced the controlling statutes made McCullough subject to

imprisonment and a term of supervised release.

Further, U.S.S.G. § 7B1.3(g)(1) provides that "[w]here

probation is revoked and a term of imprisonment is imposed, the

provisions of sections 5D1.1 - 1.3 shall apply to the imposition of

a term of supervised release." Section 5D1.1(a) in turn provides

that the court "shall order a term of supervised release to follow

imprisonment when a sentence of imprisonment of more than one year

is imposed, or when required by statute." McCullough was sentenced

to a term of imprisonment of nine months; therefore section

5D1.1(a) did not mandate the district court to impose a term of

supervised release. Section 5D1.1(b), however, provides that the

court "may order a term of supervised release to follow

imprisonment in any other case." Under this section the district

court was empowered to impose a term of supervised release. We

therefore hold that the court a` quo did not err in imposing the

challenged term of supervised release following the period of

imprisonment.5

AFFIRMED.