RECOMMENDED FOR FULL-TEXT PUBLICATION 4 United States v. Hudson No. 99-1035 Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0113P (6th Cir.) File Name: 00a0113p.06 the court to consider the relevant policy statements issued by the Sentencing Commission, the Commission having not seen fit to issue guidelines under § 994(a)(3). See, e.g., United States v. Lowenstein, 108 F.3d 80, 84-5 (6th Cir. 1997); UNITED STATES COURT OF APPEALS United States v. West, 59 F.3d 32, 35 (6th Cir. 1995). There FOR THE SIXTH CIRCUIT is no indication that the district court failed to do so in this _________________ case.

; In holding that Hudson’s nine-month sentence was proper

 under the applicable statutes, we recognize that there is UNITED STATES OF AMERICA,  something of a split among the circuits on this issue. In Plaintiff-Appellee,  reaching the result we do here, we are persuaded to follow the

 approach taken by the Fifth Circuit in United States v. Pena, No. 99-1035 125 F.3d 285 (5th Cir. 1997), cert. denied, 118 S.Ct. 1527 v.  (1998), as the better reasoned one, and thus to reject that of > the Eighth Circuit in United States v. Iversen, 90 F.3d 1340 STEVEN HUDSON,  (8th Cir. 1996). Iversen appears to rest on a misinterpretation Defendant-Appellant.  of a Ninth Circuit opinion, United States v. Plunkett, 94 F.3d 1 517 (9th Cir. 1996), which, contrary to the defendant’s insistence on appeal, does not hold that the sentence imposed Appeal from the United States District Court for a probation violation cannot exceed the sentence originally for the Eastern District of Michigan at Ann Arbor. available. No. 96-90043—George C. Steeh, District Judge.

For the reasons set out above, we AFFIRM the judgment of Argued: February 4, 2000 the district court. Decided and Filed: March 30, 2000 Before: WELLFORD, BATCHELDER, and DAUGHTREY, Circuit Judges. _________________ COUNSEL ARGUED: David C. Tholen, FEDERAL PUBLIC DEFENDERS OFFICE, Detroit, Michigan, for Appellant. Mark W. Osler, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF: David C. Tholen, FEDERAL PUBLIC DEFENDERS OFFICE, Detroit, Michigan, for Appellant. Mark W. Osler,

1 2 United States v. Hudson No. 99-1035 No. 99-1035 United States v. Hudson 3

ASSISTANT UNITED STATES ATTORNEY, Detroit, The defendant insists that because the sentencing range for Michigan, for Appellee. the underlying offense was 0-6 months, the district court could not impose a sentence greater than six months for _________________ violation of probation, despite the fact that the policy statement in Guideline § 7B1.4(a), which applies specifically OPINION to probation violations, provides for a sentencing range of 3-9 _________________ months. At one time, this argument apparently would have had merit, because 18 U.S.C. § 3565(a)(2) formerly provided MARTHA CRAIG DAUGHTREY, Circuit Judge. The that in sentencing for a probation violation, the district court defendant, Steven Hudson, appeals his sentence, imposed was authorized to impose any sentence that was available “at upon revocation of his probation, alleging that the district the time of the initial sentencing.” However, § 3565 was court erred in sentencing him to a term of incarceration in amended in 1994 to delete the phrase “at the time of initial excess of the range applicable on the original charge. For the sentencing.” Hence, the statute now authorizes the court to reasons set out below, we affirm the district court’s judgment. “revoke the sentence of probation and resentence the defendant under subchapter A.”1 In 1997, Hudson pleaded guilty to a charge of theft of government property and was sentenced to a term of two As a result, when assessing the penalty for a probation years’ probation, plus payment of a special assessment and violation, the district court is not restricted to the range restitution. He was subsequently charged with two separate applicable at the time of the initial sentencing. Instead, the violations of his conditions of probation. After his second sentence need only be consistent with the provisions of probation violation hearing, the district court revoked subchapter A, the general provisions for sentencing set out at Hudson’s probation and sentenced him to a term of nine 18 U.S.C. §§ 3553 et seq. The specific provision of months in custody, recommending placement in a community subchapter A that addresses sentencing for a probation treatment center. Hudson appeals this order, and he appeals violation is § 3553(a)(4)(B): the order denying his motion to correct sentence, pursuant to F.R.Cr.P. 35(c). Because the district court did not rule on the The court, in determining the particular sentence to be motion to correct sentence within the time limits set by Rule imposed, shall consider . . . in the case of a violation of 35(c), we have no jurisdiction to review that determination. probation or supervised release, the applicable guidelines We note, moreover, that the gist of the defendant’s complaint or policy statements issued by the Sentencing does not fall within the ambit of Rule 35(c), because the Commission pursuant to section 994(a)(3) of title 28, sentence in this case clearly was not “imposed as a result of United States Code. arithmetical, technical or other clear error,” as required by Rule 35(c). Section 994(a)(3), however, deals only with the promulgation of guidelines and policy statements and in no way restricts the Instead, the substantive question raised on appeal is sentencing court to imposition of a sentence no greater than whether the district court correctly applied §7B1.4 of the that originally applicable to the defendant. Moreover, as we sentencing guidelines, in light of the legislative mandates of have frequently pointed out, § 3553(a)(4)(B) merely directs 18 U.S.C. § 3565 and 18 U.S.C. § 3553. We review this question de novo. 1 This amendment was in place at all times pertinent to the conviction and sentencing of the defendant in this case.