UNITED STATES v. SEALS (2025)

We again address the resentencing procedure that follows a revocation of probation. See United States v. Moore, 30 F.4th 1021 (10th Cir. 2022) (Moore I); United States v. Moore, 96 F.4th 1290 (10th Cir. 2024) (Moore II). Malachi Moon Seals makes two arguments. First, for preservation purposes, he argues that this court wrongly decided Moore I.¹ Second, he notes that the district court committed error that was plain by not employing the binding two-step framework set forth in Moore I, but he does not argue prejudice from that failure. Instead, he argues more specifically that the district court plainly erred by not applying a 0-month sentence at Moore I’s first step, and in doing so prejudiced him. But he fails to show that the district court erred, and plainly, by not applying the first step in that fashion. Thus, we do not reach the prejudice prong for his alleged plain error. We affirm.

BACKGROUND

I. Underlying Offenses & Initial Sentencing

In November 2021, at age eighteen, Malachi Moon Seals began posting threats to governmental representatives and their families on their official websites. Here is a typical example:

I can't wait to kill both of your families with the lowest levels of honoree [sic] and respect just like you give to this country. I can't wait to shove my rusty machete into their tight little throats and twist like a fork in some pumkin mush.

R. vol. II, at 11 (citation modified). In other postings, he graphically threatened torture, rape, and murder. The threats frightened some recipients into requesting security details.

A grand jury indicted Moon Seals on six class-C-felony counts charging him with influencing or retaliating against a federal official by threatening that person or family members in violation of 18 U.S.C. § 115(a)(1), and six class-D-felony counts of threatening these persons by using interstate communication in violation of 18 U.S.C. § 875(c). Moon Seals pleaded guilty to all twelve counts.

In its presentence report, the probation office calculated an advisory guidelines range of 33 to 41 months of imprisonment. This resulted from an undisputed total offense level of 20 and criminal-history category of I. That left Moon Seals outside of Zone A of the sentencing table and thus ineligible for probation. See U.S.S.G. § 5B1.1(a)(1).² But after Booker and Gall,³ courts may vary from an advisory sentencing range if doing so is procedurally and substantively reasonable. And aware of this, the parties and probation office advocated for probation. But nowhere did they—or later, did the district court—ever mention varying downward to Zone A of the sentencing table.

In making its pitch for a sentence of probation, the government acknowledged that such a sentence would be “unusual,” but it assured the district court that it still was “willing to go out on [a] limb” for Moon Seals. R. vol. III, at 158. The district court was wary, concerned not just about Moon Seals's threats but also about the “severe psychological distress” it saw exhibited in them. Id. at 163. Even so, “with severe hesitation,” the court relented and sentenced Moon Seals to five years’ probation for his twelve convictions. Id. at 164. The court imposed special conditions of probation as “100 percent necessary[.]” Id. at 168. The court warned Moon Seals that if he made more threats, “[t]he next step” would be revocation of probation and incarceration. Id. at 164, 183.

II. Probation Violations & Revocation

Moon Seals immediately began serving his sentence of probation. But within two weeks, the probation office petitioned the court for his arrest. It alleged that just days after his sentencing, Moon Seals resumed posting threats. It quoted this newly made threat to a former federal intelligence officer:

[Name] IS A CRIME AGAINST HUMANITY AND WILL DIE A HORRIBLE DEATH LIKE THE PATHETIC FUCKING N[***]ER CH[**]K CAMEL TOED SAND EATING SHIT MONKEY HE IS!!!!!!!!! HE'S FUCKING DEAD FUCKING MEAT!!!!! ․

R. vol. I, at 39–40. For this conduct, the petition alleged two violations of Moon Seals's conditions of probation.

At the hearing on the petition, Moon Seals admitted the two alleged violations. The district court chose to revoke Moon Seals's sentence of probation.

III. Resentencing

After revoking probation, the district court needed (1) to “resentence” Moon Seals by 18 U.S.C. §§ 3553(a)(4)(A) and 3565(a)(2), and (2) to sanction him for violating his conditions of probation by 18 U.S.C. § 3553(a)(4)(B) and Chapter 7 of the sentencing guidelines. Moore I, 30 F.4th at 1026–27.

At the sentencing hearing, the court asked to “hear from the parties as to the applicable guideline range ․ for [resentencing.]” R. vol. III, at 9. By then, the probation office had already recommended sentencing Moon Seals to the low end of the original advisory guideline range of 33 to 41 months of imprisonment. The probation office never mentioned Moore I or its two-step framework.⁴ Defense counsel asked that the court start with the Chapter 7 range of 3 to 9 months but volunteered that the court could sentence within 33 to 41 months, or even up to the statutory maximum of 120 months. The government “agree[d] with a lot of ․ [defense counsel's] positions on the sentences that are available to the Court today.” Id. at 27. But it supported the probation office's recommendation of 33 months of imprisonment.

When addressing the court, Moon Seals's counsel referenced Moore I but asserted a belief that its holding would likely be reversed by a pending appeal of the sentence imposed on remand. The government had mentioned Moore I in its sentencing memoranda, but it didn't defend Moore I or apply its framework in making its sentencing recommendation. Though alerted to Moore I, the district court paid it no heed.

Instead, the district court went its own way. It rejected Moon Seals's argument that Chapter 7 governed exclusively, saying that this approach would give Moon Seals an “unwarranted benefit” for obtaining and violating probation. Id. at 38. Ignoring Moore I’s framework, the court pronounced that “[t]o be sure, it appears that I could use either range, and Chapter 7 in some senses may make sense.” Id. The court said that it was tempted “to just rely on the statutory maximum range and work within that range.” Id.

Ultimately, however, the court declined to apply Chapter 7 at all, instead “stick[ing] to the 33 to 41 months under the original offenses” set in Chapter 5. Id. The district court procedurally erred—and plainly—in disregarding Moore I’s binding framework.⁵

DISCUSSION

We review sentences imposed by the district court for procedural and substantive reasonableness. United States v. Cookson, 922 F.3d 1079, 1091 (10th Cir. 2019). Moon Seals argues that his sentence was procedurally unreasonable. Whether a sentence is procedurally reasonable depends on “whether the district court committed any error in calculating or explaining the sentence.” Id. (quoting United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009)). Moon Seals argues that the district court procedurally erred by not applying Moore I’s two-step framework and that had it done so it would have needed to impose a 0-month sentence at step one. Then, contending that the sentence he received was greater than his likely sentence had the district court imposed 0 months at step one, he claims prejudice at the third prong of the plain-error analysis.

Because Moore I is central to this appeal, we begin by reviewing that decision and its bases. After doing so, we consider and reject Moon Seals's argument that the district court committed plain error by not imposing a 0-month sentence at the first step of the Moore I framework.

I. Moore I and Its Binding Framework

In Moore I, we considered an appeal arising after the district court imposed an unusual sentence of probation and later revoked it. See Moore I, 30 F.4th at 1023–24. The defendant had pleaded guilty to a Hobbs Act robbery during which he had pointed a firearm at a liquor-store clerk. With an agreed advisory sentencing range of 51 to 63 months of imprisonment, the government sought a low-end sentence of 51 months. Id. at 1022–23. The defendant asked for time served and three years of supervised release. Id. at 1023. The district court gave the defendant a choice—(1) an immediate 51-month sentence as calculated after the court had already fully considered the PSR, or (2) a six-month trial period of release followed by a three-year term of probation if the six months went well. Id. The defendant chose the sentence of probation, despite the court's warning him that it held a “big hammer” and that it would sentence him to at least 84 months if he violated probation. Id. When the defendant did violate, the court revoked his probation and resentenced him to 84 months. Id. at 1023–24.

We reversed. First, we held that sentencing after revoking probation requires two steps: (1) the district court must “resentence” the defendant for his underlying offense as required by 18 U.S.C. §§ 3553(a)(4)(A) and 3565(a)(2), and (2) the district court must sanction the defendant for violating his conditions of probation as required by 18 U.S.C. § 3553(a)(4)(B) and Chapter 7 of the sentencing guidelines. Id. at 1026–27. Second, we ruled that the district court, after fully reviewing the PSR and announcing the precise 51-month sentence it felt that the PSR justified, had locked itself into 51 months as the appropriate term of imprisonment for the offense of conviction and its underlying conduct. Id. at 1026. And third, we noted that after revoking probation, the district court had never identified what portion of its 84-month sentence was for the original offense and what portion was for the probation violation. Id. at 1027. Because the total sentence happened to be the exact 84 months the district court had promised as the minimum if the defendant violated probation, we concluded that the court had erred “by employing [a] sentence-in-advance system.” Id. at 1025. The problem was that the court could not foreordain and punish probation-violation conduct before it occurred. Also, we stressed that the court had procedurally erred by not identifying what portion of the 84 months was for the original offense versus the probation violation. Id. at 1027. That deprived us of an ability to meet our duty to review each piece for substantive reasonableness. Id.

The defendant sought neither panel rehearing nor en banc review. Instead, he returned to the district court for resentencing, still not objecting to Moore I’s two-step framework. But after the resentencing, he again appealed and moved for en banc review in challenging Moore I. We denied his motion. United States v. Moore, 119 F.4th 1232 (10th Cir. 2024) (mem.).

II. Moon Seals's Arguments

On appeal, Moon Seals makes two arguments. First, he contends that the district court plainly erred in crafting his post-revocation sentence. Second, for preservation purposes, he comprehensively argues that Moore I was wrongly decided.

A. Argument One: The District Court Plainly Erred by Imposing a Procedurally Unreasonable Sentence of 36 Months of Imprisonment

On appeal, Moon Seals begins with an obvious point—the district court committed error that was plain by not employing Moore I’s binding framework in imposing its sentence.⁶ But he does not argue that this general plain error prejudiced him at prong three of the plain-error analysis. Presumably, he acknowledges that he could not show a reasonable probability of a different outcome to his 36-month sentence when the advisory range for his offenses of conviction was 33 to 41 months and his sanction range for his probation violations was 3 to 9 months. Under a straight application of Moore I, his 36-month sentence would fall within the Chapter 5 guideline range used by the district court.⁷

Instead, Moon Seals makes a more specific plain-error argument. He argues not just that the district court plainly erred by not applying Moore I’s two-step framework but that its sentence would be plain error even under Moore I’s framework. He contends that the district court at step one of Moore I’s framework plainly erred by not imposing a 0-month sentence for his underlying offenses of conviction.⁸

Moon Seals supports his view with his own novel theory—that a 0-month sentence applies when at the original sentencing hearing a district court fails to provide an “alternative sentence” that will later apply if it revokes the sentence of probation. Op. Br. at 16. For support, he extrapolates from Moore I, in which the district court happened to offer a low-end sentence of 51 months for the defendant's Hobbs Act conviction in lieu of a probation sentence. Id. (citing Moore I, 30 F.4th at 1026).

We disagree that the district court plainly erred by not imposing a 0-month sentence at Moore I’s step one using Moon Seals's “alternative sentence” theory. First, we see no reason why it should matter when a district court announces a prison sentence for the offenses of conviction, whether before or after a probation revocation. Moreover, Moore I does not contemplate Moon Seals's “alternative sentence” theory. Simply put, Moore I doesn't contain what Moon Seals now tries to pull from it—a rule stating that absent the district court's adoption of a low-end sentence of 51 months for the offenses of conviction, the district court would be bound to impose a 0-month sentence for the original crimes after the defendant violated probation.

Second, Moon Seals's argument that the district court locked itself into a 0-month sentence for his offenses of conviction ignores important considerations. For instance, the district court knew that it was imposing a conditional sentence of probation and contemplated imposing prison time for the offenses of conviction if Moon Seals violated his probation conditions (as was also the case with the district court in Moore I). Had the district court wanted to give Moon Seals a 0-month sentence, it could have done so and followed it with a term of supervised release. Further, even if the district court had somehow inadvertently locked itself into a Zone A sentence by varying to probation, the sentencing range would be 0 to 6 months, not an ironclad 0 months.

Third, Moon Seals's argument that the district court locked itself into a 0-month sentence for his offenses of conviction makes little sense. As the district court observed, using the Chapter 7 sentencing range alone would have given Moon Seals an unwarranted benefit for obtaining and violating probation. The sanction for violating probation is one that is in addition to the resentencing prison time for the underlying offenses. See United States v. Schaefer, 120 F.3d 505, 507 (4th Cir. 1997) (Wilkins, J.) (a “resentencing” under § 3565(a)(2) “plainly permits a district court to begin the sentencing process anew and to impose any sentence appropriate under the provisions of subchapter A, i.e., one that satisfies statutory and guideline requirements.” (emphasis added)).⁹

Fourth, at the second prong of the plain-error analysis, Moon Seals must show that his asserted error is plain. To do so, he depends exclusively on Moore I, but, as stated, Moore I does not announce or even support his “alternative sentence” theory. His asserted error is not plain. His failure to establish either prong one or two of the plain-error standard defeats his procedural-unreasonableness argument.

B. Argument Two: Moore I Was Wrongly Decided

Next, Moon Seals argues that Moore I was wrongly decided. But he makes this argument for preservation purposes. Accordingly, at this time, we do not address it further.

CONCLUSION

Exercising our jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm the post-revocation sentence.

I agree Moon Seals failed to demonstrate the district court plainly erred when it refused to impose a zero-month sentence at the first step of Moore I’s framework. Specifically, I agree the district court committed an error that is plain when it failed to apply Moore I’s two-step sentencing procedure. Nevertheless, Moon Seals failed to show the error affected his substantial rights. To do so, Moon Seals asserts “his own novel theory—that a 0-month sentence applies when at the original sentencing hearing a district court fails to provide an ‘alternative sentence’ that will later apply if it revokes the sentence of probation.” Majority Op. at 11. The Majority Opinion rightly rejects this “novel claim”; Moore I cannot reasonably be read as standing for such a counterintuitive and unworkable rule. Because the district court was not locked into a zero-month sentence at the first step of Moore I, the imposition of a within-Guidelines sentence at that step did not affect Moon Seals's substantial rights. Instead, Moon Seals obtained an unwarranted benefit when the district court erroneously failed to impose a sentence for the probation violation at Moore I’s second step. But cf. Majority Op. at 11 n.7 (noting the government did not bring a cross appeal for “what amounts to the district court's 0-month sentence under Chapter 7 for Moon Seals's probation violation”).

Though Moon Seals challenges Moore I as wrongly decided, he acknowledges that the decision binds this panel. He raises his challenge to preserve it for further review. I write separately to address Moon Seals's comprehensive arguments against Moore I in view of the likelihood of further challenges built on doubts expressed by a different panel in Moore II, 96 F.4th at 1302 (noting that if it were deciding the correctness of the two-step sentencing procedure “as one of first impression,” the panel “might very well conclude” that “the relevant statutes and Sentencing Guidelines call for a different result”). I support Moore I by reviewing the lead-up to the relevant statutory changes it interpreted and then examine and reject Moon Seals's arguments calling for a different interpretation.

I. Events and Law Leading Up to Moore I

In 1984, Congress enacted the Sentencing Reform Act, Pub. L. No. 98-473, § 211, 98 Stat. 1987 (codified as amended at 18 U.S.C. § 3551 et seq.). It sought to make federal sentencing more uniform and proportional. See U.S.S.G. ch.1, pt. A, 1.3. Under the Act, probation became its own sentence, though a conditional sentence subject to revocation. See 18 U.S.C. § 3564 (1984).

The first seismic event in applying the post-1984 statutes governing probation revocations came with United States v. Smith, 907 F.2d 133 (11th Cir. 1990).¹ There, a defendant pleaded guilty to possessing counterfeit currency in violation of 18 U.S.C. § 472. Id. at 134. Because his offense occurred after November 1, 1987, that version of the sentencing guidelines applied at sentencing. For the defendant's offense, the applicable guideline provided a base offense level of 9. Id. Two more offense levels were added for the defendant's aggravating role as an organizer of the “two-person scheme to pass counterfeit bills[.]” Id. Because he timely pleaded guilty, the defendant received a 2-level reduction for acceptance of responsibility. All told, that left a total offense level of 9 and a criminal-history category of I, which resulted in a then-mandatory guideline range of 4 to 10 months. Id. Because the four-month minimum term did not exceed six months, the defendant was eligible for a sentence of probation with a term of community confinement. Id. The court imposed a sentence of three years of probation, with four months to be spent at a community treatment center. Id. As a condition of probation, the court required that the defendant remain drug-free. Id.

While at the community center, the defendant failed two drug tests. Id. For that misconduct, the probation office petitioned the court to revoke the sentence of probation. Id. In revoking probation, the court observed that the sentencing guidelines gave it no direction on how to resentence after revocation of probation.² Id. Left on its own, the court defaulted to “the statutory maximum for the underlying offense[.]” Id. (citation modified). After that, the court “implicitly adopted the probation officer's recommendation and imposed a prison term of eighteen months,” the top end of the mandatory guideline range after the probation officer updated its recommendation to add four more offense levels for the defendant's post-sentencing possession of controlled substances in violation of his probation conditions. Id. at 134–35. The defendant appealed the district court's 18-month sentence.

The Eleventh Circuit reversed. In a “case of first impression,” it determined that the district court had erred in two ways: “(1) by holding that the guidelines do not apply to probation revocation proceedings and (2) by imposing a prison sentence (eighteen months) that exceeded the one originally available under the guidelines at the time of initial sentencing (four to ten months).” Id. at 135. In reaching this result, the court relied on the 1988 version of 18 U.S.C. § 3565, quoting it as follows:

(a) Continuation or 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 factors set forth in [18 U.S.C.] section 3553(a) to the extent 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 [18 U.S.C. §§ 3551–3559] at the time of the initial sentencing.

Id. From the language it italicized, the Eleventh Circuit concluded that “the district court was required to apply the guidelines” and that the original guidelines calculation “delimit[ed] the sentences that were then available.” Id. That was so because the probation-violating conduct necessarily occurred after the original sentencing hearing. Id. With that, the court concluded that “no upward adjustment in [the defendant's] total offense level could have been based on that conduct, and the longer sentence of imprisonment [anything beyond the ten-month, high end of the original mandatory guidelines range] resulting from such an adjustment was therefore not ‘available.’ ” Id. (citation modified).

So as Smith stated it, the district court could “impose a new sentence within the applicable range prescribed by law, i.e., statute and guidelines, at the time of initial sentencing-in this case, within a range of four to ten months.” Id. at 136. Otherwise stated, the district court could independently consider the probation violation and penalize it with any time not yet imposed for the original offense up to the top end of the then-mandatory guideline range. Id.

The Smith decision set off alarm bells in the office of Judge William W. Wilkins, the first and then-acting Chairman of the United States Sentencing Commission. Just twenty-five days after the Smith decision, Judge Wilkins sent a letter to Senator Strom Thurmond, the Ranking Member of the Committee on the Judiciary.³ See 136 Cong. Rec. 28230 (1990). Spotlighting Smith, Judge Wilkins sought Congress's help by asking Senator Thurmond to try to enact a “proposed clarification of the statute on revocation of probation to ensure this sanction will also be applied consistent with Congressional intent.”⁴ Id. He sought “minor modifications to 18 U.S.C. § 3565, pertaining to revocation of probation, and to 18 U.S.C. § 3553, pertaining to factors to be considered by courts in the imposition of sentence.” Id.

Judge Wilkins wanted statutory amendments to override Smith and “to promote an interpretation that is consistent with Congressional intent, under the Sentencing Reform Act.” Id. His legislative fix had two aims: (1) to allow district courts to impose incremental punishment for probation beyond the top end of the then-mandatory guideline range for the offenses of conviction violations (via his proposed § 3565(a)(2) amendment), and (2) to give statutory authority to district courts to implement the soon-coming, more robust November 1, 1990 version of Chapter 7 of the sentencing guidelines (via his proposed amendment creating § 3553(a)(4)(B)). Though Judge Wilkins disagreed with Smith’s reasoning and result, he conceded that “while we believe the Eleventh Circuit decision is plainly contrary to sound policy and congressional intent, we cannot say it is an implausible reading of the statute [§ 3565(a)(2)] or that other courts may not come to a similar conclusion.” Id.

As for Smith’s barring district courts from sanctioning probation violations beyond the top end of the mandatory guideline range for the offenses of conviction, Judge Wilkins asked Senator Thurmond to delete the § 3565(a)(2) text that Smith thought dispositive, that is, the statute's direction to “impose any other sentence that was available under subchapter A [18 U.S.C. §§ 3551–3559] at the time of the initial sentencing.” Id. Judge Wilkins proposed substituted language directing the court to “resentence the defendant under the provisions of subchapter A of this chapter [18 U.S.C. §§ 3551–3559].” Id.

The legislative history precisely shows that Congress, in coordination with Judge Wilkins's advice, created the two-step sentencing procedure set forth in Moore I. As shown by the below quotations from Judge Wilkins's 1990 letter to Senator Thurmond, Judge Wilkins saw his two proposed amendments as needed to secure a two-step sentencing procedure after revocations of probation. At the first step, the Chapter 5 guideline for the original offense of conviction would remain in place. At the second step, the Chapter 7 policy statement for the probation violation would apply even if it extended the defendant's sentence above the top end of the mandatory guideline for the offenses of conviction. Judge Wilkins's correspondence leaves no doubt that his object was to separate Chapter 5 and Chapter 7, not to merge them (as Moon Seals would now have it):

• “The clarifying language will provide that revocation decisions are to be based upon sentencing guidelines and policy statements issued by the Commission specifically for that purpose, thereby negating any implication in current statutory language [see Smith] that the guidelines applicable to the initial sentencing of defendants also apply to probation revocation decisions.” Id.

• “Since the Commission is instructed under 28 U.S.C. § 994(a)(3) to issue guidelines or policy statements for the revocation of probation and supervised release, we believe Congress clearly intended that these guidelines or policy statements, rather than those applicable to initial sentencing, be used by courts when sanctioning probation (or supervised release) violators.” Id. Judge Wilkins continued this thought by contrasting Smith’s rule as one that “constrains the court when it revokes probation” and permits only “a sentence ․ within the guideline range applicable to the defendant's initial sentencing decision.” Id. Judge Wilkins also disagreed with Smith’s rule “interpret[ing] the statute [§ 3565(a)(2)] to preclude a court from considering the probation violation itself as a basis for sentencing above the original guideline range applicable at the defendant's initial sentencing.” Id.

• Seeking to ensure a meaningful incremental sanction for a probation violation, Judge Wilkins stated that “[a]s a result of the [Smith] court's holding, courts in the Eleventh Circuit will be constrained by a guideline range that, in our view, will be inadequate to sanction probation violations appropriately in many cases. Additionally, in some cases (for example, those in which the defendant was sentenced to probation with a condition of jail confinement for a period of time) a defendant will be subject to little or no imprisonment sanction even where there was a serious breach of probation conditions.” Id.

• Judge Wilkins sought “to remove any doubt that these pronouncements—not those applicable to initial sentencing decisions—are the appropriate reference for revocation purposes.” Id.

On the separate point of district courts’ future access to the upcoming Chapter 7 policy statements, which were set to become effective on November 1, 1990, Judge Wilkins expressed concern that Smith’s rule would “impede Commission plans to implement a system of policy statements for revocation decisions, preparatory to issuing guidelines for revocation at a future date.” Id. He declared that “Smith would appear, however, effectively to block courts in that circuit from using these [upcoming Chapter 7] policy statements for probation revocation decisions.” Id. To avoid that, he proposed amending § 3553(a)(4) by adding a subsection (B) reading as follows: “or (B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a)(3).” See id.

Obviously agreeing with Judge Wilkins, Senator Thurmond sought the amendments to §§ 3553(a)(4)(B) and 3565(a)(2) that Judge Wilkins had proposed. So, first, Senator Thurmond sought to replace the language from § 3565(a)(2) that Smith depended on—“impose any other sentence that was available under subchapter A at the time of the initial sentencing”—with Judge Wilkins's proposed language: “resentence the defendant under the provisions of subchapter A of this chapter.” Id. at 28231. In his “Explanation of Probation Revocation Proposal,” Senator Thurmond advised his colleagues that Smith had “erroneously construed” the “at the time of initial sentencing” language “to mean a sentence in accordance with the sentencing guidelines applicable at initial sentencing of the defendant.” Id. Also advocating the two-step procedure that Moore I later incorporated, Senator Thurmond contrasted the substitute text as “permit[ting] courts to resentence a defendant whose probation sentence is revoked to another statutorily authorized sentence—i.e., a sentence authorized under sections 3551–3559 of title 18.” Id. (emphasis added). He declared that a “resentenc[ing]” was needed because “under the Sentencing Reform Act [of 1984], probation is a sentence; therefore, when a probation sentence is revoked, the defendant must be ‘resentenced.’ ” Id. Thus, Senator Thurmond's proposed amendment would, and later did, solve Judge Wilkins's first problem with Smith.

Second, Senator Thurmond sought to amend § 3553(a)(4) by adding the above-referenced subsection (B) “to provide a direct reference to Sentencing Commission guidelines or policy statements applicable to revocation decisions.” Id. As he stated it, “[t]he proposed amendment makes it clear that it is the guidelines or policy statements issued specifically to guide revocation decisions, and not the guidelines and policy statements applicable at initial sentencing, that govern court decisions when considering violations of probation or supervised release.” Id. (emphasis added). He noted that the “[c]urrent statutory language in section 3553 contains no reference to guidelines or policy statements issued by the Commission pursuant to 28 U.S.C. § 994(a)(3), the paragraph authorizing and directing the Commission to promulgate guidelines or policy statements for the revocation of probation and supervised release.” Id. So the amended text would provide the needed “analogous directive in section 3553 requiring court consideration of these particular guidelines or policy statements.” Id. Once again, Senator Thurmond tracked Judge Wilkins's requested changes and his reasoning for them. Moore I incorporates this direction.

II. Moon Seals's Arguments against Moore I

As shown next, Moore I followed the direction and reasoning of Senator Thurmond and Judge Wilkins in its interpretation of the amendments to 18 U.S.C. §§ 3553(a)(4)(B) and 3565(a)(2) as enacted into law in 1994.⁵ As I understand Moon Seals, he makes the following arguments, each of which I would reject.

A. Chapter 7 Subsumes Chapter 5

According to Moon Seals, Moore I mistakenly requires two steps in the resentencing proceeding (the first at Chapter 5 and the second at Chapter 7) rather than just one step (at Chapter 7 alone). In effect, Moon Seals argues that Senator Thurmond's 1994 amendments eviscerated Chapter 5 whenever a district court imposes and later revokes a sentence of probation. For several reasons, this argument lacks merit.

First, as seen, the studied words of Judge Wilkins and Senator Thurmond show that they did not eliminate Chapter 5 in the probation-revocation setting in favor of an all-consuming Chapter 7.⁶ To the contrary, they separated the two punishments rather than fusing them into an indistinguishable lump. They reserved authority to the district courts to impose an incremental sanction for a probation violation above the then-mandatory Chapter 5 sentencing guideline range for the offense of conviction. They did not favor a nonsensical result of rewarding a probation violator with a substantially reduced guideline range for violating their conditions of probation. Instead, the 1994 statutory amendments were drafted and enacted to overcome the Eleventh Circuit's decision in Smith, which had blocked incremental probation-violation sanctions exceeding the top end of the guideline for the offense of conviction.

Second, even apart from the statutory text and legislative history, Chapter 7 itself refutes Moon Seals's argument. In the November 1, 1990, Introduction to Chapter 7—which remains intact—the Sentencing Commission opted for a breach-of-trust approach to probation violations. In part, it reasoned that “the sanction for the violation of trust should be in addition, or consecutive, to any sentence imposed for the new conduct.” U.S.S.G. ch. 7, pt. A, 3(b). Nothing there suggests that, in the probation-revocation setting, Chapter 5 vanishes and leaves Chapter 7 as the sole permissible sentencing mechanism. Elsewhere, the Introduction provides that “[t]he grade of the violation, together with the violator's criminal history category calculated at the time of the initial sentencing, fix the applicable sentencing range.” Id. ch.7, pt. A, 4 (emphasis added).⁷ The “applicable sentencing range” is the probation-violation range found at § 7B1.4's sentencing table alone.

Third, Moon Seals's argument that the district court could sentence using Chapter 7 exclusively while retaining discretion to vary upward by relying on the Chapter 5 range lacks merit for at least two reasons: (1) we could not meaningfully review such a sentence not knowing which portion was assessed for the offense of conviction and which portion was assessed for the probation violation; and (2) we could not as needed apply the two different standards of review for substantive reasonableness under Chapter 5 and under Chapter 7 if called on to review a fused sentence like the one imposed in Moon Seals's case. The problem is that we defer less when reviewing Chapter 5 prison terms than we do when reviewing prison terms under Chapter 7's policy statements. See United States v. Vigil, 696 F.3d 997, 1002–03 (10th Cir. 2012) (“[A] court does not need to find severe or exceptional circumstances to impose a sentence above the range suggested in the Chapter 7 policy statements, which are not mandatory and even less compelling than established Guidelines.”).

Fourth, Moon Seals does not credit the importance of the sentencing guidelines being mandatory in 1994 when the Wilkins-Thurmond amendments were enacted. Congress amended § 3565(a)(2) for one stated reason alone—to overcome Smith’s limitation on district courts’ ability to sanction probation violations. But if courts had adopted Moon Seals's interpretation of the 1994 statutory amendments before Booker was decided in 2005, the courts could have resentenced probation-violating defendants exclusively under Chapter 7's policy statements all the way up to the statutory maximum—so to a term of imprisonment far exceeding the Chapter 5 mandatory-guidelines range for the offense of conviction. That would not have comported with the pre-Booker mandatory-guideline regime.

Fifth, despite Moon Seals's objections to a two-step system, any sentencing after a probation revocation functionally requires two steps.⁸ For instance, even in Smith, the district court was required to impose its Chapter 5 sentence within the mandatory guideline range and then consider additional time if available for the Chapter 7 violation. And even in Moon Seals's case, the district court at least considered a Chapter 7 sanction before erroneously electing to disregard Chapter 7 entirely. The question isn't whether a district court must take two steps—it must—but is whether the district court must show its sentencing work at each step so that we can meet our duty to meaningfully review the prison time imposed at each step for procedural and substantive reasonableness.

Sixth, despite Moon Seals's contrary position, when a district court follows Moore I’s two-step framework and calculates a Chapter 5 sentence for the offense of conviction and a Chapter 7 sentence for the probation violations, it has not imposed two sentences. The court cumulates the prison time for each and imposes that as the total sentence shown in the judgment. See Pepper v. United States, 562 U.S. 476, 507, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011) (“A criminal sentence is a package of sanctions that the district court utilizes to effectuate its sentencing intent.”).

B. The “or” Preceding Section 3553(a)(4)(B)

Moon Seals contends that by adding an “or” and not an “and” between § 3553(a)(4)(A) and (B), Congress meant to limit district courts at revocation to either Chapter 5 or to Chapter 7, not to both. But this view also suffers fatal defects.

First, again as seen from his written words, Senator Thurmond proposed that Congress add subsection (B) to § 3553(a)(4) for a single reason—to provide a statutory basis for district courts to apply Chapter 7 to probation violators. Nothing hints that he meant to disrupt the uniform and proportionate sentencing reforms as Moon Seals's reading of the “or” would do.

Second, the statute could not be drafted to read “and” instead of “or” when many probationers don't violate their conditions and many convicted defendants who have served their prison sentence do not violate their supervised release. For offenders who violate, district courts take a lap around subchapter A for the offense of conviction and later another lap for the supervision violation (whether of probation or supervised release).

Third, the “or” helps direct district courts to different sources of law that govern a sentencing for the offenses of conviction versus those that govern a sanction for violating probation, with § 3553(a)(4)(A) pointing to Chapters 1 through 5 of the sentencing guidelines, and with § 3553(a)(4)(B) pointing to Chapter 7.

For all these reasons, I disagree with Moon Seals's arguments that Moore I improperly interpreted the disputed statutes and sentencing guidelines. Instead, Moore I reached the sensible result that Congress directed by its 1994 statutory amendments.

Attachment

FOOTNOTES

1.   See In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) (per curiam) (“We cannot overrule the judgment of another panel of this court. We are bound by the precedent of prior panels absent en banc reconsideration or a superseding contrary decision by the Supreme Court.”).

2.   The guidelines authorize a “straight” probationary sentence only when the advisory guideline range is 0 to 6 months of imprisonment, which falls in Zone A of the Sentencing Table. See U.S.S.G. § 5B1.1(a)(1). Straight probation does not include a “period of community confinement, home detention, or intermittent confinement.” Id. § 5B1.1 cmt. n.1(A). A probation sentence including those periods is available to offenders whose advisory guideline range is in Zone B. See § 5B1.1(a)(2).

3.   United States v. Booker, 543 U.S. 220, 226–27, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

4.   The probation office instead cited an out-of-date case, United States v. Maltais, 961 F.2d 1485, 1487 (10th Cir. 1992), in which this court required exclusive application of the original guideline range for the underlying offenses at revocation. Notably, this being a 1992 decision, it obviously did not consider the 1994 statutory amendments relied on in Moore I.

5.   At the hearing, defense counsel contended that Moore I’s two-step procedure was dicta. But in Moore II, we later rejected that argument, concluding that the “two-step process is not dicta but is, instead, binding Tenth Circuit precedent.” Moore II, 96 F.4th at 1301.

6.   Moon Seals acknowledges that he encouraged the district court to disregard Moore I’s two-step procedure. Because he did so, the government in its appellate briefing claimed invited error. But at oral argument the government conceded that this case “rises and falls” on plain-error review. Oral Arg. at 27:25–27:40. So we don't further address the invited-error doctrine. Additionally, we disagree with the government's contention that Moon Seals's general appeal waiver in his plea agreement waived his appellate challenges to his post-revocation sentence. See United States v. Porter, 905 F.3d 1175, 1179 (10th Cir. 2018).

7.   Though it may be a coincidence, we note that the 36-month sentence equals the total of the low ends of the Chapters 5 and 7 sentencing ranges—33 and 3 months. The government has not appealed what amounts to the district court's 0-month sentence under Chapter 7 for Moon Seals's probation violation.

8.   Moon Seals's argument gets loose here. He explicitly briefs how the district court's not employing Moore I is error and plain error. But for the district court's not calculating and applying a 0-month sentence at Moore I’s first step, he jumps to the prejudice prong of the plain-error analysis without specifically analyzing the first two prongs of the plain-error standard. From our vantage point, he appears to be trying to incorporate the district court's general plain error to cover the needed plain error for not applying a 0-month sentence. If not, we see him as sidestepping the need to show plain error for not calculating a 0-month sentence at Moore I’s first step. The closest he comes to doing so is when he declares that “it stands to reason” that Moore I compels a finding that the district court locked itself into a 0-month sentence. See Op. Br. at 8. But as described in this opinion, Moon Seals has not shown error or plain error in this regard.

9.   Though Moon Seals says that no court has ever employed a two-step framework as Moore I does, he does not acknowledge Judge Wilkins's above comment in Schaefer. And our research shows that most probation-revocation resentencings have contained at best a cursory analysis on the sentencing steps. See United States v. Huffman, No. 22-4165, 2023 WL 4700644, at *2 (4th Cir. July 24, 2023) (unpublished) (per curiam); United States v. Vanover, 831 F. App'x 71, 74 (4th Cir. 2020); United States v. Arnold, 810 F. App'x 337 (5th Cir. 2020) (per curiam); United States v. Buckholt, 799 F. App'x 252, 253 (5th Cir. 2020); United States v. Spierdowis, 805 F. App'x 1025, 1027 n.2, 1029 (11th Cir. 2020) (per curiam); United States v. Randall, 796 F. App'x 916, 917 (8th Cir. 2019) (per curiam); United States v. Quiroz-Leon, 749 F. App'x 584 (9th Cir. 2019); United States v. Michael, 909 F.3d 990, 993–94 (8th Cir. 2018) (per curiam); United States v. Mewhinney, 643 F. App'x 803, 805 (10th Cir. 2016); United States v. Lutui, 531 F. App'x 812, 813 (9th Cir. 2013); United States v. Silva, 443 F.3d 795, 799 (11th Cir. 2006) (per curiam); United States v. Garfinkle, 162 F.3d 1174 (10th Cir. 1998) (unpublished table opinion). None thoroughly discuss the legislative history that we considered in Moore I. Even the more analyzed cases do not delve into the legislative history in detail. See United States v. Michael, 12 F.4th 858, 860–61 (8th Cir. 2021); United States v. Vixamar, 679 F.3d 22, 32 (1st Cir. 2012); United States v. Kippers, 685 F.3d 491, 496–501 (5th Cir. 2012); United States v. Verkhoglyad, 516 F.3d 122, 130 (2d Cir. 2008); United States v. Cook, 291 F.3d 1297, 1299–1302 (11th Cir. 2002); United States v. Plunkett, 94 F.3d 517, 517–19 (9th Cir. 1996); see also United States v. Schwegel, 126 F.3d 551, 553–55 (3d Cir. 1997) (interpreting the Wilkins-Thurmond congressional record in context of supervised-release revocation).

1.   Superseded by statute as recognized in United States v. Cook, 291 F.3d 1297, 1300 n.3 (11th Cir. 2002).

2.   The initial 1987 sentencing guidelines contained a brief Chapter 7 pertaining to probation and supervised-release violations and sanctions. See U.S.S.G. app. C, amend. 362. On November 1, 1990, a more robust Chapter 7 became effective, but which was after the Smith sentencing hearing. Id.

3.   The Sentencing Reform Act of 1984 had bipartisan backing. Senate cosponsors included Senators Edward M. Kennedy, Joseph R. Biden, and Orrin Hatch. See United States v. O'Neil, 11 F.3d 292, 300 (1st Cir. 1993).

4.   Here, by “also,” Judge Wilkins referenced his letter to Senator Thurmond just a month earlier about needed statutory amendments for supervised release. For the reader's ease of reference, I attach Judge Wilkins's two letters and Senator Thurmond's responses to his Senate colleagues to this concurring opinion. 136 Cong. Rec. 28228–32.

5.   Congress enacted Senator Thurmond's proposed amendments in the Violent Crime Control and Law Enforcement Act of 1994 (VCCA), Pub. L. No. 103-322, 108 Stat. 1796. Though it took multiple tries before Congress passed Senator Thurmond's amendments, the proposed statutory amendments remained substantively the same throughout these tries. The legislative history also remained consistent. See 137 Cong. Rec. 14821–24 (1991); 139 Cong. Rec. 3762–63 (1993).

6.   In a single sentence, Moon Seals claims that legislative history supports his Chapter 7, one-step sentencing procedure, but he does not back this with any analysis. Op. Br. at 9, 11, 13. His sole other reference to legislative history is from his citation to United States v. Schwegel, 126 F.3d 551, 554–55 (3d Cir. 1997). Op. Br. at 11–12. But that case simply addressed whether § 7B1.4's ranges for supervised-release violations were mandatory or advisory. Because Chapter 7 contains policy statements and not guidelines, the court correctly held that the Chapter 7 ranges were advisory. Id. at 552–53. Thus, the court in Schwegel referenced the legislative history for a different point than Moon Seals does and not in a way that helps him.

7.   The best that Moon Seals can cite otherwise is § 7B1.3(b), which provides as follows: “In the case of a revocation of probation or supervised release, the applicable range of imprisonment is that set forth in § 7B1.4 (Term of Imprisonment).” But this simply recognizes that the Chapter 7 sanction is calculated independently of the Chapter 5 term of imprisonment for the underlying offenses of conviction, not that Chapter 5's prison time disappears.

8.   Cases that purport to apply only the Chapter 7 range do so in name only. They migrate from Chapter 7 by falling back on the Chapter 5 guideline range for the underlying offenses in affirming sentences that are well beyond the Chapter 7 ranges. See Michael, 12 F.4th at 860–61; Kippers, 685 F.3d at 500–01; Verkhoglyad, 516 F.3d at 130 & n.5, 134; Huffman, 2023 WL 4700644, at *1–*2. Moore I requires district courts to show their work by separately considering the offense conduct (anchored to its applicable range) and the probation-violation conduct (also anchored to its applicable range), rather than nominally fusing them together under one range that does not estimate the distinct conduct.

PHILLIPS, Circuit Judge.