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United States v. Plunkett

filed: January 24, 1996.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOSH CHRISTOPHER PLUNKETT, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Oregon. D.C. No. CR-93-00060-01-HJF. Helen J. Frye, District Judge, Presiding. Amended Opinion Previously Reported at:,.

Before: J. Clifford Wallace, Dorothy W. Nelson and Melvin Brunetti, Circuit Judges. Opinion by Judge Wallace; Dissent to Amendment by Judge Wallace.

Author: Wallace

Order, AMENDED OPINION, AND DISSENT

WALLACE, Circuit Judge:

Plunkett challenges his 46-month sentence of imprisonment, which was imposed after he violated the terms and conditions of his probation. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal of the sentence pursuant to 18 U.S.C. § 3742. We affirm.

I

While serving an unrelated state sentence, Plunkett contacted the Federal Bureau of Investigation (Bureau) and confessed to robbing a bank several years earlier. Bureau officials admitted that without Plunkett's confession the crime would have remained unsolved. On September 7, 1993, a hearing was held to sentence Plunkett for the crime to which he confessed. In recognition of his voluntary disclosure, the district court departed downward to a base offense level of three and a guideline range of zero to six months. The district court placed Plunkett on probation for five years subject to numerous conditions, including that Plunkett not "purchase, possess, use, distribute or administer any narcotic or other controlled substance . . . ."

Nonetheless, on December 15, 1994, the court issued a Warrant and Order to Show Cause as to why Plunkett's probation should not be revoked due to allegations that Plunkett used heroin, as evidenced by positive drug tests and his own admissions. On January 30, 1995, a sentencing hearing was held and Plunkett's probation was revoked. The court held that the Sentencing Guidelines' Chapter 7 policy statement ranges for probation violation were inadequate and returned to the original guideline range of 57-71 months, departing downward to 46 months in recognition of Plunkett's original confession.

II

Plunkett argues that the 1994 amendments to 18 U.S.C. §§ 3553 and 3565 render mandatory the suggested imprisonment sentences for probation violators in the Chapter 7 policy statements. As the Warrant and Order to Show Cause was issued on December 15, 1994, several months after the amendments became effective on September 13, 1994, the amendments applied to Plunkett's resentencing. Had the court followed the policy statements, Plunkett would have received a sentence of six to twelve months, see Guidelines Policy Statement §§ 7B1.3(a)(2) & 7B1.4(a), rather than the 46 months he received under the range applicable at the time of original sentencing.

Prior to the 1994 Amendments, section 3553(a)(4) read:

The court, in determining the particular sentence to be imposed, shall consider -

(4) the kinds of sentence and the sentencing range established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines that are issued by the Sentencing Commission pursuant to 28 U.S.C. ...


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