Appeal from the United States District Court for the District of Hawaii. D.C. No. CR-88-01141-ACK. Alan C. Kay, District Judge, Presiding.
Before: Ruggero J. Aldisert*fn* , Alfred T. Goodwin and John T. Noonan, Jr., Circuit Judges. Opinion by Judge Aldisert.
This case of statutory construction requires us to interpret a provision of 18 U.S.C. § 3565(a), which provides that when a probationer is found in possession of a controlled substance, "the court shall revoke the sentence of probation and sentence the defendant to not less than one-third of the original sentence." We must decide whether the term "original sentence" means only the period of incarceration that could have been originally imposed and not any term of probation.
The district court read the phrase "one-third of the original sentence" as referring to the term of probation imposed after the initial offense. Jose Corpuz, Jr., the defendant below, has appealed and argues that the phrase refers only to the period of incarceration that could have been imposed under the United States Sentencing Guidelines. We agree with the district court's reading and affirm.
Jurisdiction was proper in the district court based on 18 U.S.C. § 3565(a), governing revocation of probation. We have jurisdiction under 28 U.S.C. § 1291. The appeal was timely filed under Rule 4(b), F.R.A.P.
The legality of a sentence is reviewed de novo. United States v. Pomazi, 851 F.2d 244, 247 (9th Cir. 1988).
Jose Corpuz pled guilty to a counterfeiting charge in April 1989. The Sentencing Guidelines placed him in offense level 7, Criminal History Category I. The sentencing table recommended incarceration for one to seven months. The Guidelines give the court discretion to issue a sentence of probation rather than imprisonment in these circumstances. U.S.S.G. § 5B1.1(a)(2). The court accordingly sentenced Corpuz to three years probation.
In October 1990 Corpuz was arrested on a charge of possession of methamphetamine. Subsequent urinalysis revealed traces of the drug. The court held a show-cause hearing on February 11, 1991, determined that Corpuz had violated the conditions of probation by possessing methamphetamine, and revoked probation. The court considered resentencing on the following day.
Revocation of probation is governed by 18 U.S.C. § 3565. The first part of section 3565(a) was enacted as part of the Sentencing Reform Act of 1984:
(a) Continuation of revocation - 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 ...