filed: April 13, 1992; As Amended April 30, 1992.
On Appeal from the United States District Court for the District of Delaware. (D.C. Criminal No. 89-00004-01)
Before: Greenberg and Cowen, Circuit Judges, and Green, District Judge*fn*
Under 18 U.S.C. § 3565(a) (1988), a probationer who is found in possession of a controlled substance will be resentenced to "not less than one-third of the original sentence." This appeal requires us to determine whether "original sentence" refers to the original period of incarceration to which the defendant could have been sentenced or the term of probation actually imposed. Because we hold it to be the former, we will vacate the sentence imposed by the district court and remand for resentencing.
Cheryl Gordon pled guilty in May 1989 to violating 18 U.S.C. § 1703 (1988) by removing a $596.14 check from the mail while working for the United States Postal Service. Under the Sentencing Guidelines then in effect, Gordon could have received a sentence of zero to four months imprisonment, based on a total offense level of four within criminal history category I. U.S.S.G. Ch. 5, Pt. A.*fn1 Instead, Gordon was sentenced to three years probation, with no suspended sentence of imprisonment.
In June 1990, the district court found Gordon guilty of violating the terms of probation, but continued probation on the condition that Gordon complete an in-house drug rehabilitation program. Although Gordon completed the drug program, she failed to report to the probation office for required urinalysis on eighteen occasions. Two of the urine specimens which she did submit tested positive for cocaine metabolite. In August 1991, the district court revoked Gordon's probation and resentenced her to one year imprisonment, noting:
I'm going to sentence you for your violation for being in possession of a controlled substance and I'm going to revoke the sentence of probation that was imposed by Judge Roth and sentence you to a period not less than one-third of your original sentence, which was three years. In effect, I'm going to imprison you for one year, basically to save your life.
The district court's resentencing decision appears to be based on 18 U.S.C. § 3565(a) which specifies:
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, after a hearing pursuant to Rule 32.1 of the Federal Rules of Criminal Procedure, and after considering the factors set forth in section 3553(a) to the extent that they are applicable --
(1) continue him on probation, with or without extending the term or modifying or enlarging the conditions; or
(2) revoke the sentence of probation and impose any other sentence that was available under subchapter A at the ...