UNITED STATES OF AMERICA v. MALACHI MATHIAS MOON SEALS (2026)

This case requires us to clarify how district courts impose sentences after an offender has violated his probation conditions. Under federal law and the United States Sentencing Guidelines, we conclude that after a court revokes probation, 18 U.S.C. § 3553(a)(4) requires the resentencing court to consider the recommended sentence under Chapter 7 of the Sentencing Guidelines Manual for the offender's probation violation; and then, when considering whether to vary from that recommended sentence, the court should consider Chapter 5's recommended sentence for the offender's original offense.

Malachi Moon Seals pleaded guilty to six counts of threatening members of Congress and their families, see 18 U.S.C. § 115(a)(1), and six counts of sending those threats in interstate communication, see 18 U.S.C. § 875(c). His presentence report calculated a guidelines range of 33 to 41 months’ imprisonment, a function of his total offense level of 20 and criminal-history category of I. Because his guidelines range was so high, he did not qualify for a probation sentence. See U.S. Sent'g Guidelines Manual § 5B1.1 (U.S. Sent'g Comm'n 2021). But the Guidelines being advisory, see United States v. Booker, 543 U.S. 220, 245 (2005), the government, the probation office, and Moon Seals urged the district court to vary from the Guidelines and impose a term of probation. The court—“with severe hesitation”—acquiesced and sentenced Moon Seals to five years’ probation. R., Vol. III at 164.

Within days, Moon Seals violated the conditions of his probation by threatening a former federal official. The court revoked his sentence of probation, and then “resentence[d]” Moon Seals, as required by 18 U.S.C. § 3565(a)(2). In United States v. Moore (Moore I), 30 F.4th 1021 (10th Cir. 2022), we explained how a court must resentence a defendant after revoking probation: first, the court “impose[s] a sentence for the originally charged crime based only on a defendant's pre-probation conduct” with reference to Chapter 5 of the Guidelines Manual, and second, the court “sentence[s] a defendant for the probation violation based only on the defendant's post-probation conduct” with reference to Chapter 7 of the Guidelines Manual. Moore I, 30 F.4th at 1027. The court here resentenced Moon Seals to 36 months’ imprisonment.

We now reject Moore I’s two-step sentencing procedure. Moore I’s approach finds little persuasive support in the text of the relevant statutes and is at odds with other circuits’ sentencing procedures. And the countervailing considerations urged by Moore I in support of its reading of the statutes cannot justify our departure from Congress's own instruction.

Congress tells courts to sentence a defendant “in the case of a violation of probation,” according to “the applicable guidelines or policy statements” in Chapter 7. 18 U.S.C. § 3553(a)(4)(B). That means that a court employs the typical tools in assessing and sentencing for the new conduct—the violation of probation. It does not tell courts to first sentence the defendant for his underlying crime under Chapter 5 and then to sentence him for the probation violation under Chapter 7. When sentencing a defendant after revoking his probation, a court must consider the sentencing range recommended by Chapter 7 of the Guidelines; it should consider the range recommended by Chapter 5 when deciding whether to vary from the Chapter 7 range.

Under this single-step process, the district court here was required to take Chapter 7's recommended range as its starting point. Because it did not do so, we REVERSE Moon Seals's sentence and REMAND for resentencing.

I. Background

An eighteen-year-old Malachi Moon Seals visited the government websites of several members of Congress and left messages threatening the officials and their families. He threatened torture—“If I don't see this bill passed ․ I'll make sure I put you threw [sic] the most horrific pain humanely processable [sic].” R., Vol. I at 21. He threatened murder—“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.” R., Vol. I at 23. And he threatened rape—“I think I'll rape your wife first,” R., Vol. I at 23, and “I congratulate you ․ on turning my life goals into flaying and raping your children.” R., Vol. I at 24. In response to these threats, some of these officials hired security details.

A grand jury indicted Moon Seals on six counts of threatening federal officials and their families, see 18 U.S.C. § 115(a)(1), and six counts of sending those threats in interstate communication, see 18 U.S.C. § 875(c). He pleaded guilty to all counts.

Moon Seals's presentence report recommended a sentence of 33 to 41 months’ imprisonment, based on his total offense level of 20 and criminal-history category of I. At the sentencing hearing, Moon Seals asked for probation. The government agreed. Though it was a “really tough call,” the prosecutor decided to “go out on [a] limb” for Moon Seals because he had made significant rehabilitative progress and probation would allow him to “ensure that this upward trajectory” would “continue[ ].” R., Vol. III at 158. The court hesitated to impose probation, but it did so, after deciding to set several special conditions on Moon Seals's probation.¹ Two conditions were “critical to [the court's] ruling that probation [was] appropriate.” R., Vol. III at 173. Moon Seals's communication devices were subject to monitoring by the probation office, and he was prohibited from sending threats to any person. R., Vol. I at 36.

Within days Moon Seals violated that second condition. He sent a threat laced with racial epithets to a former federal intelligence official: “You better take this seriously. [Official's] life, is in danger. and I will slaughter him into oblivion.” R., Vol. I at 39. Having learned of that threat, the probation office petitioned for an arrest warrant and requested that the court revoke Moon Seals's probation. Moon Seals was arrested, and he admitted to the probation violations.

The court held a revocation hearing. The court first revoked Moon Seals's probation and then resentenced him—as required by § 3565(a)(2)—in accordance with the typical sentencing factors in 18 U.S.C. § 3553(a). One factor, § 3553(a)(4), instructs courts to consider the sentencing range recommended by the relevant chapter of the Guidelines Manual. Moon Seals argued that the court needed to consider Chapter 7, which recommended a sentence between 3 and 9 months’ imprisonment. U.S. Sent'g Guidelines Manual § 7B1.4 (U.S. Sent'g Comm'n 2021); R., Vol. III at 14. And for its part, the government acknowledged that Moore I created some sort of “relationship between” the “guidelines for the underlying offense” in Chapter 5 and “the guidelines for a revocation in Chapter 7,” but it asked the court to impose a sentence within the Chapter 5 guidelines, which recommended 33–41 months’ imprisonment. R., Vol. III at 28. The court sided with the government, explaining that “it appears that I could use either range” in Chapter 5 or Chapter 7, but it “st[u]ck to” the Chapter 5 range of 33–41 months’ imprisonment. R., Vol. III at 38. The court sentenced him to 36 months’ imprisonment. R., Vol. I at 69.

Moon Seals appealed his sentence. He alleged that the court plainly erred by misapplying step one of the Moore I framework.² More specifically, he argued that the court was required to impose a zero-month sentence at step one because the court had failed, when imposing his original sentence, to identify an alternative sentence that would be imposed if Moon Seals violated his probation conditions. Finding that Moore I did not require a sentencing court to declare an alternative sentence, the original panel rejected that argument and affirmed Moon Seals's sentence.

Moon Seals then filed a petition for rehearing en banc, raising his preserved argument that Moore I was wrongly decided. We granted the petition to decide whether Moore I correctly held that resentencing following revocation of probation requires the court to first, sentence the defendant for his underlying conduct according to Chapter 5, and second, sentence the defendant for his probation violation according to Chapter 7. Because neither Moon Seals nor the government chose to defend Moore I’s two-step approach, we appointed Amicus Frederick Yarger to argue in Moore I’s favor. He has ably discharged that duty, and we thank him for his service.

II. Discussion

We begin with an overview of the statutory scheme for probation and revocation. We then reject Moore I’s two-step process in favor of a one-step process. And finding that the district court here did not take Chapter 7 as its starting point, we reverse and remand for resentencing.

A. Moore I

Congress passed the Sentencing Reform Act of 1984 to standardize sentencing procedures in the federal courts. Pub. L. No. 98-473, 98 Stat. 1987. Under that sentencing scheme, courts have three options when sentencing an individual defendant: a term of probation, a fine, or a term of imprisonment. 18 U.S.C. § 3551(b). Perhaps the most familiar sentence is one of imprisonment, under which the defendant is incarcerated for a particular term. 18 U.S.C. §§ 3581, 3582. When imposing imprisonment, the court may also impose a term of supervised release, which is served after the term of imprisonment and during which the defendant is monitored for compliance with several conditions (for example, that the defendant not commit another crime). See 18 U.S.C. § 3583(a), (d).

The sentencing court may also forgo a term of imprisonment entirely and instead impose probation. 18 U.S.C. § 3561(a). Like supervised release, probation requires the defendant to subject himself to monitoring, agreeing to abide certain conditions of probation. But unlike supervised release, probation is a stand-alone sentence; it is imposed instead of imprisonment, not in addition to imprisonment. This “sentence of probation remains conditional and subject to revocation until its expiration or termination.” 18 U.S.C. § 3564(e).

If a probationer violates his probation conditions, as Moon Seals did here, the court has two options: it may “continue [the defendant] on probation, with or without extending the term or modifying or enlarging the conditions,” or it may “revoke the sentence of probation.” 18 U.S.C. § 3565(a)(1), (2). If the court chooses to revoke the defendant's probation, then the court must “resentence the defendant under subchapter A.” 18 U.S.C. § 3565(a)(2). Subchapter A comprises 18 U.S.C. §§ 3551–3559.³

Thus, the court must consider the familiar § 3553(a) factors when it resentences a defendant after revoking his probation. Section 3553(a)(4) is the crux of the dispute here. That provision requires the court to consider:

(4) the kinds of sentence and the sentencing range established for—

(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—

(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28 ․ ; and

(ii) that ․ are in effect on the date the defendant is sentenced; 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 section 994(a)(3) of title 28.4

18 U.S.C. § 3553(a)(4). Subparagraph A directs a sentencing court to Chapter 5 of the Sentencing Guidelines Manual, adopted pursuant to its authority under 28 U.S.C. § 994(a)(1), which permits the Commission to issue guidelines “for use of a sentencing court in determining the sentence to be imposed in a criminal case.” Subparagraph B, on the other hand, directs sentencing courts to Chapter 7 of the Guidelines Manual, which the Sentencing Commission promulgated pursuant to its power under § 994(a)(3). 28 U.S.C. § 994(a)(3) (authorizing Sentencing Commission to issue “guidelines or general policy statements regarding the appropriate use of the provisions for revocation of probation set forth in section 3565 of title 18”). Putting all this together, § 3553(a)(4) tells courts to look for the recommended sentence in Chapter 5 for “the applicable category of offense committed by the applicable category of defendant ․ or ․ in the case of a violation of probation,” in Chapter 7. The flowchart below contrasts Moore I’s framework and the correct framework.

Tabular or graphical material not displayable at this time.

Our basic discussion of § 3553(a)(4)’s text goes a long way toward showing Moore I’s error. We of course “begin, as we always do, with the statute's text.” United States v. Broadway, 1 F.4th 1206, 1211 (10th Cir. 2021) (citing Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1143 (10th Cir. 2005)). And if the text is unambiguous, we apply its plain meaning. Id. The plain meaning derives from “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Id. (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)).

First, take the word “resentence” in § 3565(a)(2). “Resentence” means “to impose a new or revised sentence ․ on (someone who has already been sentenced for a crime).” Resentence, Merriam-Webster.com, https://www.merriam- webster.com/dictionary/resentence (last visited June 9, 2026); see also Resentencing, Black's Law Dictionary (7th ed. 1999) (“The act or an instance of imposing a new or revised criminal sentence.”). Amicus and the dissent suggest that “resentence” must mean that the defendant is sentenced again for the crime he was originally sentenced for; otherwise, he has not been resentenced. They focus on Merriam-Webster’s definition of “resentence” as imposing a new or revised sentence on “someone who has already been sentenced for a crime.” Resentence, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/resentence (last visited June 9, 2026) (emphasis added). They then infer that resentencing occurs only if the court sentences the defendant for the particular crime he has already been sentenced for. Amicus Br. at 6. So, they argue, § 3565(a)(2)’s use of “resentence” means the court must impose a new sentence for the crime the defendant has already been sentenced for—the underlying crime—as Moore I’s first step requires.

But they read too much into the dictionary's definition of “resentence.” The definition's parenthetical requires only that the defendant have been sentenced before, not that the new sentence be punishing the same conduct as the original sentence. The court need not resentence the defendant for the underlying crime to satisfy § 3565(a)(2) because the court, when it revokes the defendant's original sentence of probation, must now impose a new sentence of imprisonment—it must, in other words, resentence the defendant. See United States v. Augustin, 16 F.4th 227, 232 (6th Cir. 2021) (describing resentencing as “beginning the sentencing process anew” (quoting United States v. Thomason, 940 F.3d 1166, 1171 (11th Cir. 2019))).

Now consider § 3553(a)(4)’s two component clauses. Subparagraphs A and B are separated by an “or,” which is “almost always disjunctive.” Encino Motorcars, LLC v. Navarro, 584 U.S. 79, 87 (2018) (quoting United States v. Woods, 571 U.S. 31, 45 (2013)). “Statutory context,” however, “can overcome the ordinary, disjunctive meaning of ‘or.’ ” Id. The statutory text thus gives the court two alternatives—Subparagraph A or Subparagraph B—when sentencing a defendant. Subparagraph A is the more general provision, instructing courts to use Chapter 5 when generally imposing a sentence, but Subparagraph B addresses a more specific situation—“case[s] of a violation of probation or supervised release.” 18 U.S.C § 3553(a)(4)(B). And because “it is a basic principle of statutory construction that a specific [provision] ․ controls over a general provision,” Subparagraph B is the appropriate provision to use for probation violations, not Subparagraph A. HCSC-Laundry v. United States, 450 U.S. 1, 6 (1981) (per curiam); see also Bloate v. United States, 559 U.S. 196, 207–08 (2010) (“[G]eneral language of a statutory provision ․ will not be held to apply to a matter specifically dealt with in another part of the same enactment ․” (quoting D. Ginsberg & Sons, Inc. v. Popkin, 285 U.S. 204, 208 (1932))). That's the normal, common-sense reading of that language. Suppose you went to a jazz club, and a sign on the door informed you, “The cover charge is $40, or if you're a club member, $10.” No member would fork over a $50 bill.

Amicus and the dissent contend that statutory context overcomes the presumption that “or” is used disjunctively here; it is instead, according to them, used conjunctively. We disagree. If Congress wanted a conjunctive connector, it could have used “and”—as it did in Subparagraph A itself. See § 3553(a)(4)(A) (instructing courts to consider the guidelines “issued by the Sentencing Commission pursuant to section 994(a)(1) ․ and ․ [that] are in effect on the date the defendant is sentenced”). Congress's use of the conjunctive “and” shows that it knows how to require courts to follow two subsidiary statutory provisions. It did not do so here. Fish v. Kobach, 840 F.3d 710, 740 (10th Cir. 2016) (“When Congress knows how to achieve a specific statutory effect, its failure to do so evinces an intent not to do so.” (citing United States v. Burkholder, 816 F.3d 607, 615 (10th Cir. 2016))). Amicus suggests that Congress could not have used conjunctive “and” in § 3553(a)(4) to achieve its desired effect because to do so would require a sentencing court to use both Subparagraph A and Subparagraph B, even at original sentencings where no probation violation has occurred. But using a conjunctive “and” would not lead to that result: Subparagraph B would not be triggered at an original sentencing where no probation violation occurred because it applies “in the case of a violation of probation or supervised release.” 18 U.S.C. § 3553(a)(4)(B). Congress could have used “and.” It did not.

The statute's evolution likewise undermines Moore I. As originally enacted, § 3565(a)(2) instructed the sentencing court to “impose any other sentence that was available under subchapter A at the time of the initial sentencing.” The statute thus linked the post-revocation sentence to the pre-revocation sentence—as step one of the Moore I framework does. But Congress later delinked those two sentences: it amended § 3565(a)(2) and instructed courts to “resentence the defendant under subchapter A,” allowing the court broader discretion to impose a sentence other than one that was originally available. See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, sec. 110506, 108 Stat. 1796, 2017. That change of language suggests that Congress meant to divorce the post-revocation sentence from the sentences available for the underlying crime—exactly what Moore I requires the court to consider at step one.

We have already rejected a two-step process like Moore I when the court sentences a defendant after revoking his supervised release. In United States v. Kelley, we explained “§ 3553(a)(4)(A) has no application when a violation of the defendant's conditions of supervised release is at issue; in such cases the relevant consideration ․ is the Chapter 7 policy statements referenced in § 3553(a)(4)(B).” 359 F.3d 1302, 1306 (10th Cir. 2004). To be sure, Kelley did not address revoking probation; it addressed revoking supervised release, which is governed by 18 U.S.C. § 3583(e)(3).⁵ And as Amicus points out, that provision does not require the court to “resentence” the defendant; it enables the court to require the defendant to serve all or part of the statutorily authorized term of supervised release in prison. But that distinction makes little difference. Admittedly, § 3565(a)(2) and § 3583(e)(3) are different statutory provisions with different statutory text. Both provisions, however, still require the court to consider § 3553(a)(4)—the crux of the dispute here. Sections 3565(a)(2) and 3583(e)(3) may have different starting points, but they have the same end point. And when Kelley rejected the application of Chapter 5's guidelines range, it did so based on a fundamental textual point in § 3553(a)(4). Noting the “statute's use of the disjunctive ‘or,’ ” the court explained that the “natural reading of § 3553(a)(4)” refers courts in supervised-release violations to “the Chapter 7 policy statements referenced in § 3553(a)(4)(B).” Kelley, 359 F.3d at 1306. That textual observation applies equally to sentencings for probation violations, notwithstanding the different statutory starting points.⁶

Other circuits follow this straightforward reading. They require sentencing courts to consider Chapter 7's recommended sentencing range. See, e.g., United States v. Tschebaum, 306 F.3d 540, 544 (8th Cir. 2002) (“[W]e are of the view that when a defendant's probation is revoked a sentencing court should give attention to the policy statements found in chapter 7 of the sentencing guidelines ․”). They also bless considering both Chapter 5 and Chapter 7. See, e.g., United States v. Michael, 12 F.4th 858, 860 (8th Cir. 2021). But we have found no circuit that requires a court to consider both Chapter 5 and Chapter 7 in the way Moore does. See, e.g., United States v. Cook, 291 F.3d 1297, 1301–02 (11th Cir. 2002) (affirming sentence based on consideration of Chapter 7 alone).⁷

Pointing to legislative history, Amicus and the dissent highlight statements by Senator Thurmond, who sponsored the 1994 amendment. But Senator Thurmond's comments do not help Amicus and the dissent. He explained that adding § 3553(a)(4)(B) would ensure that revocation decisions would be made “based upon sentencing guidelines and policy statements issued by the Commission specifically for that purpose”—that is, the Chapter 7 guidelines and policy statements. 136 Cong. Rec. 28228 (1990). That statement rejects using the Chapter 5 guidelines for post-revocation sentencing. So would another piece of legislative history:⁸ “[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. at 28231.

Amicus and the dissent also raise the specter of absurd results to support their interpretation. First, they suggest that our one-step framework will create a windfall for the probation violator. As they see it, the violator wins when the court imposes a sentence of probation, despite a high recommended sentence range like Moon Seals's, but later imposes a much lower sentence within the Chapter 7 range. First, we doubt this windfall will be as pervasive as Amicus suggests. Moon Seals's probation sentence is the outlier; it was an enormous bet on rehabilitation. The heartland case for probation are defendants who fall within Zone A or Zone B of the Chapter 5 guidelines, which typically carry sentences of 0–6 months (Zone A) or sentences up to 15 months (Zone B). And with Chapter 7 recommending sentences up to 14 months for Grade C violations, the delta between the Chapter 5 and Chapter 7 ranges is not nearly so stark as suggested.

Second, in the rarer case like Moon Seals's, the windfall comes at the outset when the court imposes probation instead of the range recommended under Chapter 5. But even if the disparity arises at resentencing for the probation violation, the court may still vary upwards—and indeed even consider the Chapter 5 range— when considering, for example, § 3553(a)(1) (“the nature and circumstances of the offense and the history and characteristics of the defendant”) and § 3553(a)(6) (“the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”). See U.S. Sent'g Guidelines Manual ch. 7, pt. A, introductory cmt. 3(b) (U.S. Sent'g Comm'n 2021) (“[A]t revocation the court should sanction primarily the defendant's breach of trust, while taking into account, to a limited degree, the seriousness of the underlying violation and the criminal history of the violator.”); United States v. Verkhoglyad, 516 F.3d 122, 130 n.5 (2d Cir. 2008) (observing that a court is not “precluded from considering” the Chapter 5 range under § 3553(a)’s factors).

Moore I’s proponents also fear that a one-step framework will frustrate appellate review of sentences for probation violations. If a court must consider Chapter 7's range and then vary upward to a sentence within Chapter 5's range, we could not, according to their logic, “apply the two different standards of review for substantive reasonableness under Chapter 5 and Chapter 7.” United States v. Moon Seals, 156 F.4th 1065, 1077 (Phillips, J., concurring), vacated and reh'g en banc granted, 164 F.4th 1205. But our standard of review for sentences based on Chapter 5 and Chapter 7 is the same. United States v. Steele, 603 F.3d 803, 807 (10th Cir. 2010) (explaining that reasonableness review for sentences “in excess of that recommended by the Chapter 7 policy statements” is “the same analysis as the reasonableness standard of review” prescribed by Booker); see also United States v. Contreras-Martinez, 409 F.3d 1236, 1241 & n.2 (10th Cir. 2005). Moreover, any concern that we will not be able to identify the reasons for the court's upward variance into the Chapter 5 range is alleviated by § 3553(c)’s requirement that a court explain its reasons for the upward variance. § 3553(c) (“The court ․ shall state in open court the reasons for its imposition of a particular sentence ․”). In the decades before Moore I, we had no difficulty reviewing sentences for probation violations; the difficulties won't start now. Nor have other circuits identified any problems with substantive reasonableness review in their one-step regimes.

In the dissent's view, we have made a costly error: using the text of the statutes alone as the cornerstone of our interpretation. Our interpretation, according to the dissent, should also be guided by the legislative history of the statutes, with a particular view to how Judge Wilkins, the Chair of the Sentencing Commission, and Senator Strom Thurmond, Chair of the Senate Judiciary Committee and sponsor of the 1994 amendments, interpreted the statutes. The dissent contends our textual analysis of § 3553(a)(4) does not comport with the “Smith fix,” the aim of the 1994 amendments according to the statutes’ legislative history. See Dissenting Op. at 37 n.8 (“I don't care whether ‘or’ is disjunctive or conjunctive․ What is important is that ‘or’ is part of the Smith fix.”).

As we read the dissent, it argues that revoking probation under § 3565(a)(2) triggers two proceedings—one to sanction the offense of conviction and another to sanction the probation violation. So when the court sanctions the defendant for the offense of conviction, § 3553(a)(4)(A) directs the court to Chapter 5, and in the separate proceeding to sanction the probation violation, § 3553(a)(4)(B) directs the court to Chapter 7. See Dissenting Op. at 28, 33–34, 37 n.8. But what justifies splitting a “resentence ․ under subchapter A” into two proceedings—one for the offense of conviction, the other for the probation violation? Senator Thurmond's statements on the Senate floor and Judge Wilkins's correspondence with the senator, according to the dissent. Judge Wilkins and Senator Thurmond may have understood §§ 3565(a)(2) and 3553(a)(4) as authorizing separate sanctioning proceedings. But the Chairman of the Senate Judiciary Committee—influential as he may be—is still one member of Congress, and his private views are not Congress's views as expressed in law. See FS Credit Opportunities Corp. v. Saba Cap. Master Fund, Ltd, 146 S. Ct. 1546, 1558 (2026) (“Congress expresses itself as a body through the text it enacts[.]”).

The dissent also suggests that “resentence the defendant under subchapter A” means only “resentencing for the original offense.” Dissenting Op. at 28. But that's not what Congress said. Instead, it instructed courts to “resentence” the defendant, with no mention that the resentencing under subchapter A would only be for the original offense. In the end, we defer to the text of § 3565(a)(2) and § 3553(a)(4). Section 3565(a)(2) instructs the court to resentence the defendant under subchapter A, and when the court does so, it applies § 3553(a). When resentencing, it must therefore choose whether to follow § 3553(a)(4)(A) or (B). For the reasons explained above, we think the court must follow (B).⁹

Accordingly, we abrogate the two-step framework of Moore I in favor of a one-step framework. As required by § 3553(a)(4)(B) for probation violations, the sentencing court must consider the range of imprisonment recommended by Chapter 7. Section 3553(a)(4)(A) does not apply. The court may vary upwards (as with any sentence) according to the § 3553(a) factors, and in making this determination, the court should consult Chapter 5's recommended range of imprisonment, particularly when considering § 3553(a)(1), (2), and (6).¹⁰ As with any variance, the court must explain its upward variance.

In the end, a court imposing a sentence for a probation violation does what it must do in every case: apply the § 3553(a) factors and holistically evaluate the offender—his “history and characteristics,” § 3553(a)(1), the need to deter him from further criminal conduct and protect the public from his further crimes, § 3553(a)(2), and ensure he faces a sentence proportional to offenders with “similar records” who are guilty of “similar conduct,” § 3553(a)(6), among other factors—and impose a sentence that is no greater than necessary to achieve these objectives. The defendant's offense of conviction and recommended sentence range under Chapter 5 are relevant to those considerations.

B. Remand for resentencing

The framework adopted above requires a district court to take Chapter 7's recommended range as its starting point. But believing it “could use either” Chapter 5 or Chapter 7, the court “specifically reject[ed] the application of Chapter 7.” R., Vol. III at 38. That was error. As explained above, a court must take Chapter 7's recommendation range of imprisonment as its starting point. Because the court here did not do so, we reverse and remand for resentencing.

III. Conclusion

We reject Moore I’s sentencing procedure in favor of the following one. When resentencing a defendant after revoking his probation, the court must consider Chapter 7's recommended sentence range. 18 U.S.C. § 3553(a)(4). It should consider Chapter 5's recommended sentence range when determining whether to vary from Chapter 7's range. Because the court here failed to start with Chapter 7's recommended range, we reverse Moon Seals's sentence and remand for resentencing.

For forty-two years, our court has heeded the statutory command of the Sentencing Reform Act of 1984 for uniformity and proportionality in federal sentencing. Today, the majority breaks that streak by reversing our decision in United States v. Moore (Moore I), 30 F.4th 1021 (10th Cir. 2022). Based on a mistaken and incomplete interpretation of two 1994 statutory amendments (18 U.S.C. §§ 3565(a)(2) and 3553(a)(4)(B)), which were passed for a very specific purpose unacknowledged by the majority opinion, the majority returns us to the pre-1984 discretion-driven, disparity-ridden, hope-I-get-the-lenient-judge sentencing system. Thankfully, this wrong turn is limited to revocation-of-probation situations. But even that is a big, jagged chip of granite off this circuit's previously smooth face of uniformity and proportionality for federal sentencings.

Moore I provides a sensible, uniform, and statutory-and-guidelines-directed two-step sentencing scheme for probation violators. Though the two steps can occur in either order, Moore I described the first step as punishing the offense of conviction, and the second step as punishing the probation violation. The Moore I system measures separate conduct for separate punishments under separate sentencing tables in the Guidelines Manual. But the majority jettisons that for its own system, one that inexplicitly authorizes district courts to disregard the probation violator's underlying offenses of conviction. If a violent felon like Mr. Moore, or a threateningly violent defendant like Mr. Moon Seals, manages to obtain a downward variance to a sentence of probation, he likely lands in clover. Even if the court revokes his probation, he stands a good chance of a substantially lesser sentence than he would have gotten if the court had never entrusted him with probation. For some reason, the majority apparently thinks that Congress in 1984 and 1994 intended such a result despite its primary, oft-stated concern being the enforcement of mandatory sentencing ranges.

Congress would never have agreed to the majority's counter-Sentencing Reform Act of 1984-style system allowing “freebies” for the underlying offenses of convictions of probation violators. The majority tells us that despite having enacted mandatory sentencing ranges in 1984, which stood until United States v. Booker, 543 U.S. 220 (2005), Congress meant to give district courts discretion to impose no prison time for probation violators’ underlying offenses of conviction. And the majority insulates that decision from our review. Depending on the fortuity of judge assignments, violent-leaning felons like Mr. Moore and Mr. Moon Seals might well never serve a day for their offenses of conviction, despite multi-year Chapter 5 guideline ranges. Quite a deal.

After criticizing Moore I’s two-step sentencing process (applying separate steps in punishing the offense of conviction and in sanctioning the probation violation), the majority adopts its own two-step system. For its step one, as mentioned, it improperly eliminates a Chapter 5 sentence for the offense of conviction but then at least properly funnels the probation-violation sanctioning to Chapter 7 of the Guidelines Manual, via 18 U.S.C. § 3553(a)(4)(B). The majority's second step comes out of left field. Without statutory or sentencing-guidelines authority, and having repealed Chapter 5 sentences for offenses of conviction (again, which were mandatory from 1984 until 2003 and remain advisory still), the majority gives district courts discretion to tiptoe back to Chapter 5 to “peek” at its now-abandoned sentencing range (even by the majority's telling) formerly covering the offense of conviction and then to use it as a springboard to sentence above the Chapter 7 range (despite the Chapter 7 range being for the breach of trust in violating probation, not for the offense of conviction). Quite a stretch.

Apart from the implausibility that Congress would have favored this result, the majority's second step suffers from another big problem. Once the majority refashions § 3565(a)(2)’s “resentence ․ under subchapter A” as covering the probation violation alone under Chapter 7, via § 3553(a)(4)(B), it has locked the district court into the self-contained, inescapable Chapter 7. Neither the statutes nor the sentencing guidelines offer the majority a way out of Chapter 7 for its end-around, step-two Chapter 5 peek. Section 3553(a)(4)(B) and Chapter 7 are one-way streets. No U-turns are allowed. By design, Chapter 7 sets the sanction for the probation violator's breach of trust—not imprisonment for the underlying offense, a job left to Chapter 5. Moore I tracks the statutes and guidelines and requires no unauthorized leaps.

If looking for another reason to conclude that the statutes and guidelines prohibit the majority's Chapter 5–peek system, look no further than its results. The majority's system permits great sentencing disparities among similar offenders committing similar conduct—all contrary to 18 U.S.C. § 3553(a)(6). Some district courts will lower the boom after peeking, and some won't even peek. Again, compare that system to the uniformity, proportionality, and fairness under Moore I’s statutory-based two steps. Quite a difference.

In addition, the majority's discretionary Chapter 5–peek system (again, supposedly required by the 1994 amendments) will impinge on our ability to obey the Supreme Court's command that we meaningfully review sentences. With Moore I, we reviewed sentences for offenses of conviction and sanctions for probation violations in their two separate stacks. Each had its own guideline range within its own sentencing table and its own standard of review. Now, under the majority's discretionary-peek system, we'll be asked to review hybrid sentences blended from Chapters 7 and 5. Questions will abound without Moore I’s easily understood review rules.

So I write to explain why the majority's approach is mistaken, to mourn Moore I’s passing, and (I hope) to catch the eye of any passerby with a wrecking ball and a cement mixer, perhaps the Supreme Court or the Sentencing Commission.

I. Introduction

The majority's analysis wrongly fuses 18 U.S.C. §§ 3565(a)(2) and 3553(a)(4)(B). By doing that, the majority scuttles the required resentencing for the offense of conviction after the court's revocation of the conditional sentence of probation. Just like that, any sentence for the offense of conviction goes poof. Instead, the majority's un-resentencing is an initial sentencing for the probation violation. The majority drops § 3565(a)(2) at the headwaters of subchapter A—§ 3551(a)—for a meaningless meandering downstream only to be netted at § 3553(a)(4)(B) every single time. The majority's resulting un-resentencing system leaves only Chapter 7's meager advisory range available. Neither § 3553(a)(4)(B) nor Chapter 7 permit use of § 3553(a)(4)(A) or the § 3553(a) factors to manipulate that range. So good-bye to real resentencings at which the court imposes imprisonment for the offense of conviction. And hello to un-resentencings at which defendants line up to accept freebie, zero-month sentences for their offenses of conviction.

But the majority can hardly leave it that way. After all, most reasonable people won't think that wiping out any punishment for the offense of conviction is a reasonable result. So the majority devises a daring rescue plan as seen in the second part of this quote: “When sentencing a defendant after revoking his probation, a court must consider the sentencing range recommended by Chapter 7 of the Guidelines; it should consider the range recommended by Chapter 5 when deciding whether to vary from the Chapter 7 range.” Majority Op. at 4 (emphasis added). Missing from this is any recognition (1) that legitimate variances are already available under Chapter 7, tied to the degree of the breach of trust in violating probation, and (2) that Chapter 5 sentences are meant to punish the offense of conviction, not the Chapter 7 breach of trust.

As a warmup before deciphering the majority's counter-textual conclusion, here are the federal statutory sections before and after the 1994 amendments. I begin with 18 U.S.C. § 3565(a)(2). The pre-1994 italicized text was stricken by the 1994 amendment, and the post-1994 italicized text was inserted in its place:

Pre-1994:

(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.] § 3553(a) to the extent that they are applicable—

(1) continue him on probation, with or without extending the term o[r] 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. §§ 3551–59] at the time of the initial sentencing.

Sentencing Reform Act of 1984, Pub. L. No. 98-473, § 212, 98 Stat. 1837, 1995 (emphasis added).

Post-1994:

(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.] § 3553(a) to the extent that they are applicable—

(1) continue him on probation, with or without extending the term o[r] modifying or enlarging the conditions; or

(2) revoke the sentence of probation and resentence the defendant under Subchapter A [18 U.S.C. §§ 3551–59].

See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 110506, 108 Stat. 1796, 2017 (emphasis added).

Next, I turn to 18 U.S.C. § 3553(a)(4). The post-1994 italicized text was added to the pre-1994 text:

Pre-1994:

(a) Factors To Be Considered in Imposing a Sentence.—The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. 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. 994(a)(1) ․

Sentencing Reform Act of 1984, Pub. L. No. 98-473, § 212, 98 Stat. 1837, 1989–90 (emphasis added).

Post-1994:

(a) Factors To Be Considered in Imposing a Sentence.—The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—

․

(4) the kinds of sentence and the sentencing range established for—

(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code․ 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 section 994(a)(3) of title 28, United States Code ․

See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 280001, 108 Stat. 1796, 2095–96 (emphasis added).

Our job is to interpret the statutory language from its text and context. With that in mind, before addressing the text of the 1994 amendments, I run through the relevant background to the two disputed 1994 statutory amendments quoted above. Though the historical information and the legislative history might come a bit early, I explain later why the two 1994 amendments are, at the very least, ambiguous.

A. The Sentencing Reform Act of 1984

Until 1984, “the federal sentencing system was almost entirely unregulated: judges sentenced without any legal constraints other than broad statutory penalty ranges (e.g., from probation to twenty years of imprisonment for bank robbery).” Brent E. Newton & Dawinder S. Sidhu, The History of the Original United States Sentencing Commission, 1985-1987, 45 Hofstra L. Rev. 1167, 1169 (2017). Under this system, “there was virtually no appellate review of the sentences imposed.” Id. “Once federal district judges decided upon a sentence, they were not required to give any reasons for the particular sentences that they imposed.” Id. at 1170. And because two executive-branch agencies—the United States Parole Commission and the Bureau of Prisons— controlled the “back end” of sentences, parole and good-time allowances led to “many federal prisoners [being] released well before the expiration of the sentences of imprisonment imposed by federal district courts.” Id.

A bipartisan movement swelled against the discretionary and indeterminate sentencing system in federal courtrooms. Hon. William W. Wilkins, Jr., Phyllis J. Newton & John R. Steer, Competing Sentencing Policies in a “War on Drugs Era,” 28 Wake Forest L. Rev. 305, 305–06 (1993). The dissatisfaction concerned the disparity in sentences for similar violators committing similar offenses and the lack of truth in sentencing—the time in fact served being a fraction of the pronounced sentence. Id.

In 1984, after years of discussion, Congress enacted the Sentencing Reform Act as part of the Comprehensive Crime Control Act of 1984. Brent E. Newton, supra, at 1183–87; Wilkins, supra, at 305–06. The Act passed overwhelmingly with bipartisan support. Brent E. Newton, supra, at 1184 & n.110; Wilkins, supra, at 305. President Ronald Reagan signed the bill into law on October 12, 1984. Wilkins, supra, at 310. Soon after, Congress created the United States Sentencing Commission. Judge William W. Wilkins served as Chairman, a post he held throughout the years involved in this appeal.¹ See Brent E. Newton, supra, at 1188 & n.135. Congress directed the Commission to develop “mandatory” sentencing policies to “avoid ․ unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct.” Id. at 1185 (quoting 28 U.S.C. § 991(b)(1)(B)); see also William W. Wilkins, Jr. & John R. Steer, The Role of Sentencing Guideline Amendments in Reducing Unwarranted Sentencing Disparity, 50 Wash. & Lee L. Rev. 63, 87 (1993) (“No purpose was more important to Congress and the several Administrations that worked for years to enact the Sentencing Reform Act of 1984 than the avoidance of unwarranted disparity and resulting unfairness in the sentencing of similarly situated defendants.”).

Seeking uniformity in sentencing, “Congress directed the Commission to decide what offense and offender characteristics were relevant for sentencing ․ and also to establish corresponding sentencing ranges.” Brent E. Newton, supra, at 1185. The sentencing guidelines were to “avoid[ ] unwarranted disparities among defendants with similar records who have been found guilty of similar criminal conduct while maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of the guidelines.” Id. (citation modified). Congress “specifically directed the Commission to give ‘particular attention’ to providing certainty and fairness and avoiding unwarranted sentencing disparities.” Id. at 1185 n.118 (quoting 18 U.S.C. § 994(f)).

After being confirmed by the Senate on October 16, 1985, Chairman Wilkins and the other Commission members set off on a herculean task of assembling the first iteration of the federal sentencing guidelines within the deadline provided. On April 13, 1987, they submitted the original Guidelines Manual to Congress. Id. at 1188. For its first eighteen months, the Commission had spent time researching, drafting, and debating issues underlying the first Guidelines Manual. Id. But the guidelines are evolutionary, and more work lay before the Commission.

B. The United States Sentencing Guidelines: Chapter 7

In the original 1987 version of the Sentencing Manual, the commission devoted just two pages to Chapter 7, entitled “Violations of Probation and Supervised Release.” But by 1990 much of the Sentencing Commission's original work had cleared, so it was able to devote significant time to preparing a rewrite of Chapter 7. Among other things, the new version included a separate sentencing table at § 7B1.4 specifically for violations of probation and supervised release. On April 26, 1990, the commission submitted to Congress proposed amendments for the 1990-year cycle. Minutes of May 4, 1990, U.S. Sent'g Comm'n Bus. Mtg. Even so, the Chapter 7 amendments continued to be debated by the commission. Id. With Congressional approval, the amendments would go into effect on November 1, 1990. Id.

All went smoothly up through July 30, 2007. But on July 31, 2007, the upcoming version of Chapter 7 was threatened by the publishing of United States v. Smith, 907 F.2d 133 (11th Cir. 1990). Despite the majority's not mentioning Smith, anyone interpreting the 1994 amendments to 18 U.S.C. §§ 3565(a)(2) and 3553(a)(4)(B) must begin by understanding the Smith “problem” and its “fix.”

C. The Meteorite: United States v. Smith

In United States v. Smith, the Eleventh Circuit rocked the system for sanctioning violations of probation under § 3565(a)(2). In the Eleventh Circuit and other circuits soon adopting its view, the Smith rule rendered the proposed 1990 amendments to Chapter 7 a nullity, despite Congress's soon approving those amendments and making them effective on November 1, 1990. Then came a four-year odyssey to enact amendments to §§ 3565(a)(2) and 3553(a)(4) and override the Smith decision. Finally, in 1994, the two amendments became law as part of the Violent Crime Control and Law Enforcement Act of 1994, Pub. Law No. 103-322, 108 Stat. 1796. To understand those amendments, we need to understand the Smith problem and its fix.

In Smith, a defendant pleaded guilty to possessing counterfeit currency in violation of 18 U.S.C. § 472. 907 F.2d at 134. Because his offense occurred after November 1, 1987, the 1987 version of the sentencing guidelines applied at the sentencing hearing. Id. For the defendant's offense of conviction, the guidelines set an adjusted offense level of 11—a base offense level of 9 plus two levels for the defendant's aggravating role in organizing the “two-person scheme to pass counterfeit bills.” Id. Because of the defendant's timely guilty plea, he received a two-level reduction for acceptance of responsibility. So his total offense level was 9. Together with his criminal-history category of I, the defendant's mandatory guideline range was 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 sentence a defendant after revocation of probation. Id. Left on its own, the court defaulted to “the statutory maximum for the underlying offense.” Id. After that, the court “implicitly adopted the probation officer's recommendation and imposed a prison term of eighteen months.” Id. That was 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. The defendant appealed the district court's 18-month sentence. Id.

The Eleventh Circuit reversed. In a “case of first impression,” it determined that the district court had erred in two ways: “(1) in holding that the guidelines do not apply to probation revocation proceedings and (2) in 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 1984 version of 18 U.S.C. § 3565, quoting and italicizing 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. §§ 3551–59] at the time of the initial sentencing.

Id.

From the italicized language, 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.

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—but only up to the top end of the mandatory guideline range set at sentencing. Id.

Key for our purposes, Smith limited any incarceration sanction for the probation violation to any months available under the mandatory guideline range after imposition of the sentence for the underlying crime of conviction. Id. at 135. So, for example, for defendants sentenced to the top end of the mandatory guideline range for the offense of conviction, the court could impose no sanction for the probation violation. See id. In other words, in that circumstance, the mandatory guideline range would be the full amount of punishment for the offense of conviction and the probation violation.

The upcoming amendments to Chapter 7, which would go into effect on November 1, 1990, with Congressional approval, did not work that way. The new Chapter 7 allowed courts to impose an incremental sanction for the probation violation. For that, it provided its own, separate sentencing table. The bottom line was that incarceration times for the offense of conviction and for the probation violation were to be separate. But so long as Smith’s interpretation of § 3562(a)(2)’s language—“and impose any other sentence that was available under subchapter A at the time of the initial sentencing”—held sway, courts would be constrained from imposing the new Chapter 7's sanction for the probation violation.

D. Chairman Wilkins and the Sentencing Commission Respond

On August 21, 1990, at its first business meeting after Smith was decided, Chairman Wilkins sought general comments “regarding the August 14, 1990, draft of the proposed Probation and Supervised Release Revocation Policy Statements” and announced that “a final vote on the matter will occur at the August 28 Commission meeting.” Minutes of Aug. 21, 1990, U.S. Sent'g Comm'n Bus. Mtg. In addition, “[t]he Commission discussed a recent 11th Circuit decision [Smith] relating to revocation of probation and whether to seek a statutory amendment regarding this issue.” Id. After this discussion, a commissioner “made a motion to proceed with drafting a legislative proposal” in response, and “[t]here was a consensus to proceed with drafting.” Id.

On August 24, 1990, Chairman Wilkins sent a letter to Senator Strom Thurmond, the Ranking Member of the Committee on the Judiciary.² 136 Cong. Rec. 28230 (1990). Referring to Smith, Chairman Wilkins offered proposals for “clarification of the statute on revocation of probation to ensure this sanction also will be applied consistent with Congressional intent.” Id. In response to Smith, Chairman Wilkins advised Senator Thurmond that “the Commission recommends 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. (emphasis added). He advised that “[t]he 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 that the guidelines applicable to the initial sentencing of defendants also apply to probation revocation decisions.” Id. Then citing 28 U.S.C. § 994(a)(3)—by which Congress instructed the Commission “to issue guidelines or policy statements for the revocation of probation and supervised release”—Chairman Wilkins stated the Commission's belief that “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.”³ Id.

Chairman Wilkins specified the Commission's disagreement with Smith—namely, that Smith had directed “that the guideline range applicable to the initial sentencing decision also constrains the court when it revokes probation.” Id. (emphasis added). He faulted Smith for interpreting § 3565(a)(2) as precluding courts “from considering the probation violation itself as a basis for sentencing above the original guideline range applicable at the defendant's initial sentencing.” Id. (emphasis added). The problem with Smith, he said, was that “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.” Id. (emphasis added). And he noted that “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. (emphasis added). Chairman Wilkins expressed concern that Smith “would appear ․ effectively to block courts in that circuit from using [policy statements just approved by the commission to guide courts in making] probation revocation decisions.” Id.

As the “fix” to these Smith problems, Chairman Wilkins sought the “minor modifications” to 18 U.S.C. §§ 3565(a)(2) and 3553(a)(4)(B). Id. These statutory amendments would override Smith and “promote an interpretation that is consistent with Congressional intent under the Sentencing Reform Act.” Id.

As for Smith’s barring district courts from sanctioning probation violations with any incarceration time above the top end of the Chapter 5 mandatory guideline range for the offenses of conviction, Chairman 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. §§ 3551–59] at the time of the initial sentencing.” Id. In its place, Chairman Wilkins proposed language directing the court to “resentence the defendant under the provisions of subchapter A of this chapter [18 U.S.C. §§ 3551–59].” Id. As Senator Thurmond advised his colleagues in the “Explanation of Probation Revocation Proposal,” Chairman Wilkins proposed adding the § 3553(a)(4)(B) language to fill an “omission” from the Sentencing Reform Act of 1984—one commanding that courts consider the Chapter 7 policy statements created under 28 U.S.C. § 994(a)(3). Id. at 28231. In other words, the § 3553(a)(4)(B) amendment inserted a needed provision that Congress had overlooked in 1984—just a cleanup on aisle 1984.

This shows that Chairman Wilkins saw his proposed amendments for §§ 3565(a)(2) and 3553(a)(4)(B) as securing a two-step sentencing procedure after revocations of probation. Just as we later held in Moore I, at the first step (the § 3565(a)(2) resentencing) the Chapter 5 sentencing range 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 without considering the mandatory guideline for the offenses of conviction.

Chairman Wilkins's correspondence leaves no doubt that his goal was to separate Chapter 5 and Chapter 7, not to merge them as the majority opinion now does:

• “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, 907 F.2d 133] that the guidelines applicable to the initial sentencing of defendants also apply to probation revocation decisions.” Id. at 28230.

• “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. Chairman 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. Chairman 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, Chairman 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.

• Chairman Wilkins sought “to remove any doubt that these pronouncements [the Commission's Chapter 7 policy statements]—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, Chairman 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).” Id.

Agreeing with Chairman Wilkins, Senator Thurmond sought the amendments to §§ 3565(a)(2) and 3553(a)(4) that Chairman Wilkins 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 Chairman Wilkins's proposed language: “resentence the defendant under the provisions of subchapter A of this chapter.” Id. at 28231. In the “Explanation of Probation Revocation Proposal,” Senator Thurmond advised his colleagues that Smith had “erroneously construed” the “[a]t 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 “resentence” 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 Chairman 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). The whole goal was to keep the sentence for the offense of conviction separate from the sanction for probation. The amendments were to stake a fence between the two different concerns.

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 Chairman Wilkins's requested changes and his reasoning for them. Section 3553(a)(4)(B) was needed to correct an “omission” in the Sentencing Reform Act of 1984. Id. (emphasis added).

In 1991, Senator Thurmond advised his colleagues that “[c]urrent law ․ does not expressly command court consideration of guidelines or policy statements governing violations of probation and supervised release that derive from Commission authority under 28 U.S.C. § 994(a)(3).” 137 Cong. Rec. 14822 (1991). To correct this “oversight,” he said, § 3553(a)(4) requires “court consideration of Commission guidelines or policy statements pertaining to violations of probation and supervised release.” Id. He emphasized that honoring the Sentencing Reform Act's command required “that all court decisions affecting the imposition or modification of sentence are to be structured by the standards of the Act and by Sentencing Commission guidelines and/or policy statements relevant to the particular sentencing recommendation.” Id. (emphasis added). In other words, sentencing for offenses of conviction is done through Chapters 1–5 via 18 U.S.C. § 994(a)(1), and sentencing for probation violations is done through Chapter 7 via § 994(a)(3).

In essence, the 1994 amendments to §§ 3565(a)(2) and 3553(a)(4)(B) kept Chapter 5 from devouring Chapter 7. Ironically, as shown below, the majority misreads those amendments and has Chapter 7 devouring Chapter 5. Otherwise stated, the majority turns Smith upside down—Smith jammed the Chapter 7 sanction into the mandatory Chapter 5 range for the offense of conviction, and the majority jams the Chapter 5 range into the Chapter 7 range for the probation-violation sanction. The 1994 statutory amendments cured the narrow problem caused by Smith; today's interpretation of those same two amendments creates a broader and even worse one.

II. The Majority Opinion

A. Majority's Step One

At its first step, the majority concludes “that after a court revokes probation, 18 U.S.C. § 3553(a)(4) requires the resentencing court to consider the recommended sentence under Chapter 7 of the Sentencing Guidelines Manual for the offender's probation violation.” Majority Op. at 2. This conclusion leaves out some of its underlying assumptions. When fleshed out, it manifests the majority's misunderstanding of statutory terms and how Congress's sentencing system works. I take it piece by piece below.

1. Section 3565(a)(2): “Resentencing”

The majority treats “resentence the defendant under subchapter A” as collaring both the offense of conviction and the probation violation. Then trekking through subchapter A up through § 3553(a)(4)(A), the majority encounters statutory provisions focusing on the offense of conviction. Nary a mention of a probation violation. But on reaching § 3553(a)(4)(B), the majority seizes on the words “or (B) in the case of a violation of probation or supervised release” and reads them as all-consuming. The majority concludes that this language overrides § 3553(a)(4)(A)—that is, it reads (A) or (B) as a one-time, mutually exclusive sorting. And by that reading, it eliminates any sentencing for the offense of conviction to which the conditional sentence of probation hung.

The majority's failure to consider Smith is costly. Recall that the present version of § 3562(a)(2) substituted “resentence the defendant under subchapter A” for the Smith era (pre-1994) text version of § 3562(a)(2): “impose any other sentence that was available at the time of sentencing.” Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 110506, 108 Stat. 1796, 2017. Unlike how the majority reads the post-1994 version of § 3565(a)(2), Smith didn't read the pre-1994 § 3565(a)(2) as directing it to eliminate Chapter 5's mandatory sentencing range for the offense of conviction. In fact, Smith read “available at the time of offense” as the sentence available for the offense of conviction. And Congress didn't change this meaning by using “resentence the defendant under subchapter A.” Both the pre- and post-1994 versions of § 3565(a)(2) zero in on the offense of conviction. In passing the 1994 statutory amendments, Congress didn't seek to eliminate the then-mandatory guideline range for the offense of conviction.⁴ It passed the amendments to implement the Smith “fix”—that is, to require that district courts calculate and impose a separate and incremental sentence under Chapter 7. Incremental to what? The Chapter 5 sentence, of course.

The majority's bundling the offense of conviction and the probation violation for one trip through “resentence the defendant under subchapter A” makes no sense. First, does the majority really contend that in 1994, the middle of the mandatory-guideline regime, Congress decided to forgive the offense of conviction and eliminate the mandatory Chapter 5 sentencing range? All without saying so? No pre-Booker cases support that view. Second, if Congress intended that result, wouldn't it have simply said in § 3565(a)(2) “resentence under § 3553(a)(4)(B)?” And doesn't Congress's failure to use that language show that it had something else in mind with the words “resentence the defendant under subchapter A”? And can't that something else only be the resentencing of the original offense of conviction under subchapter A (just as the court initially sentenced the defendant before granting probation)?

The majority also ignores persuasive authority contradicting its interpretation of “resentence the defendant under subchapter A.” By our good fortune, Judge Wilkins was the first circuit judge to interpret § 3565(a)(2)’s “resentence the defendant under subchapter A” language. In United States v. Schaefer, he read the post-1994 version of § 3565(a)(2) this way: “This amended provision 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.” 120 F.3d 505, 507 (4th Cir. 1997) (emphasis added). From this, what makes sense is that “begin the sentencing process anew” means restart the sentencing again as though probation had never been granted. When a court revokes a conditional sentence of probation, it starts over where it left off. See 18 U.S.C. § 3564(e).

In contrast, as the majority would have it, “begin the sentencing process anew” means a “resentence” at which the court ignores everything considered at the original sentencing (e.g., the “statutory and guideline requirements”), including the presentence report required by § 3552(a). Under that view of § 3565(a)(2), the district court can revoke probation, impose a Chapter 7 sanction using the § 7B1.4 range, jack up the Chapter 7 sanction with the hijacked Chapter 5 range that has nothing to do with the Chapter 7 breach of trust, and close the case. That's a resentencing?

Finally, before addressing § 3553(a)(4)’s use of “or (B),” I note how dependent the meaning of that subsection is on the meaning of § 3565(a)(2)’s “resentence the defendant under subchapter A.” If “resentence the defendant under subchapter A” means start over as if the district court never granted probation, that ends any need to discuss the “or” preceding § 3553(a)(4)(B). After all, if § 3565(a)(2) commands resentencing for the original offense, we can't read the simultaneously enacted § 3553(a)(4)(B) as undoing that command. Instead, we would have to read § 3553(a)(4)(B) as operating in the sensible way the dissent says it does. Section 3553(a)(4)(B) would be a standalone direction for sentencing the narrow probation violation just like it is for supervised release. It wouldn't rely on subchapter A, but just itself. Even so, I turn to § 3553(a)(4)(B).

2. Section 3553(a)(4): “or (B)”

Reading “resentencing under subchapter A” as the majority does fails to acknowledge that almost all of subchapter A (§§ 3551 through 3559) concerns the offense of conviction, not a probation violation. Again, if Congress had intended for § 3553(a)(4)(B) to immunize probation violators from being sentenced for their offenses of conviction, it had a simpler way of doing it— just write § 3565(a)(2) as “resentence under § 3553(a)(4)(B).” In effect, the majority reads § 3565(a)(2) that way despite the subsection's not saying that. According to the majority, every probation revocation must journey through all of subchapter A even though all that matters is § 3553(a)(4)(B). Such a regal role for § 3553(a)(4)(B) leaves (a)(4)(A) a dead letter. And not just mostly dead as the majority would have it in its Step 2, but plain dead, no twitching.

Again, the majority goes wrong by ignoring Smith. By its reading of the pre-1994 version of § 3565(a)(2), Smith forced the probation-violation sanction into the mandatory Chapter 5 sentencing range, which often prevented an adequate incremental penalty for the probation violation. And that result conflicted with the Sentencing Commission's more-robust Chapter 7 (and § 7B1.4's sentencing table) that would go into effect on November 1, 1990. The Chapter 7 sentencing table would set sentencing ranges for categories of probation violation incremental to Chapter 5's sentencing table. And that all came before Smith and the 1990 (enacted in 1994) amendments. In approving the two 1994 statutory amendments and earlier approving the Chapter 7 amendments, Congress showed that it agreed with this aim.

In short, the concern of Congress and the Sentencing Commission was in keeping probation violators from receiving too little punishment, not too much. Imprisonment for the offense of conviction alone wasn't sufficient. It should go without saying that Congress wasn't interested in “freebies” and rewards for probation violators—it was interested in making sure they paid for both their offenses of conviction and their probation violations.

As seen, the majority's mistake is in not recognizing that § 3553(a)(4)(B) is a freestanding provision implementing 28 U.S.C. § 994(a)(3). The freestanding nature of § 3553(a)(4)(B) applies equally to probation and supervised-release violators. The effect of § 3553(a)(4)’s “or” is to direct the sentencing court to the proper framework for the particular sentencing at issue. That is, if a court is resentencing the offense of conviction after revoking a conditional sentence of probation, § 3553(a)(4)(A) directs it to Chapters 1 through 5 of the guidelines created under 28 U.S.C. § 994(a)(1). Or if the court is sanctioning a probation revocation, § 3553(a)(4)(B) directs it to Chapter 7 as created under 28 U.S.C. § 994(a)(3). The “or” preceding § 3553(a)(4)(B) is a gatekeeper—its job is to keep the two separate things separate. No using Chapter 5 to sanction under Chapter 7, and no using Chapter 7 to sentence under Chapter 5.

On this point, United States v. Kelley, 359 F.3d 1302 (10th Cir. 2004) (Ebel, J.) is instructive, despite the defendant in that case being a multi-time supervised-release violator, rather than a single-time probation violator like Mr. Moon Seals. Id. at 1303. The court spoke expansively when it stated that “[t]he Sentencing Commission proposed adding subsection (a)(4)(B) to clarify that revocation decisions should be guided by the guidelines and policy statements issued by the commission specifically for that purpose, not by the guidelines that were applicable to the defendant's underlying offense.” Id. at 1306. And it relied on the Wilkins-Thurmond legislative history to back that up, quoting this part of it: “Congress clearly intended that these guidelines or policy statements [Chapter 7], rather than those applicable to initial sentencing [Chapter 5], be used by courts when sanctioning probation (or supervised release) violators.” Id. (quoting 136 Cong. Rec. 28230 (1990)). The court disallowed consideration of § 3553(a)(4)(A) in arriving at a sanction under Chapter 7 for the supervised-release violation, ruling that “in such cases the relevant consideration under § 3553(a)(4) is the Chapter 7 policy statements referenced in § 3553(a)(4)(B).” Id. As seen from the quote, the same applies to probation. Kelley read “or (B)” the same way I do.⁵ It disallowed consideration of § 3553(a)(4)(A) and thus Chapter 5 in punishing the Chapter 7 violation. So no Chapter 5 peek would have been welcome, just as it shouldn't be in our appeal.

From the day it enacted the Sentencing Reform Act of 1984, Congress expressed its clear intent to keep sentencings for offenses of conviction and probation violations separate. We need look no further than 28 U.S.C. § 994(a)(1) (commanding the promulgation of guidelines for determining the appropriate length of a term of imprisonment) and § 994(a)(3) (commanding the promulgation of “guidelines or general policy statements regarding the appropriate use of the provisions for revocation of probation set forth in section 3565 of title 18”). Congress maintained this dichotomy in § 3553(a)(4)(A) and (B). In fact, those subsections reference their separate § 994(a)-creation language. Activating one does not deactivate the other. From the outset, §§ 994(a)(1) and (a)(3) have staked a fence line separating punishments for offenses of conviction and probation violations. Moore I was correct to ensure that never the twain shall meet.

To understand the workings of § 3553(a)(4)(B), the majority need look only to Senator Thurmond's explanation for it. He explained that § 3553(a)(B) filled an “omission” in the Sentencing Reform Act of 1984. 136 Cong. Rec. 28230 (1990). Here is how he described the need to enact § 3553(a)(4)(B) to fill the inadvertent omission: “Current law, however, does not expressly command court consideration of guidelines or policy statements governing violations of probation and supervised release that derive from Commission authority under 28 U.S.C. § 994(a)(3).” 137 Cong. Rec. 14822 (1991). He explained that § 3553(a)(4)(B) “corrects this oversight by amending 18 U.S.C. § 3553(a)(4) to require court consideration of Commission guidelines or policy statements pertaining to violations of probation and supervised release.” Id. Can the purpose of the amendment be more clearly stated?

In evaluating the majority's interpretation of the 1994 amendments, consider this common situation. Suppose the court imposes a sentence of probation on a defendant on July 1. On July 15, the probation office petitions to revoke probation. On August 1, the court holds a hearing, finds a violation, and elects to revoke probation. As I understand it, the court could impose the resulting Chapter 7 sanction after hearing from the parties. The court could say, “Marshal, Mr. Moore left the state without probation's permission, so I'm sanctioning him with a low-end, three-month jail term, please take him away. Counsel, I'll see you and Mr. Moore for a resentencing hearing on September 15. Make sure you have all your witnesses here and evidence ready to present for my consideration. Good-bye.” Then on September 15, after a full resentencing hearing, the court could impose a Chapter 5 guidelines sentence, varying up or down from the advisory range if it chose. I am uncertain whether the majority disputes this.⁶ If not, I assume the majority has no issue with district courts continuing to use the Moore I framework if they so wish.

As another point favoring Moore I’s two-step sentencing system, we can rely on the Sentencing Manual itself. Section 4A1.2(k) directs how to compute criminal-history points. In doing so, it adds the separate imprisonment times imposed for the offense of conviction and for the probation violation: “In the case of a prior revocation of probation ․ add the original term of imprisonment to any term of imprisonment imposed upon revocation. The resulting total is used to compute the criminal history points for § 4A1.1(a), (b), or (c), as applicable.” U.S. Sent'g Guidelines Manual § 4A1.2(k)(1) (2021). The two incarceration periods mentioned are those included in Moore I’s two steps.

Finally, as the newcomer to § 3553(a), § 3553(a)(4)(B) must be read consistently with its entrenched neighbor, § 3553(a)(6). Subsection (a)(6) states that “[t]he court, in determining the particular sentence to be imposed, shall consider ․ the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” This restates a big part of why Congress passed the Sentencing Reform Act of 1984. Contrary to § 3553(a)(6)’s direction to avoid unwarranted sentencing disparities, the majority's interpretation of § 3553(a)(4)(B) creates them. In fact, when it comes to creating disparities, the majority is “moving like a tremendous machine.”⁷ Congress passed the Sentencing Reform Act of 1984 to end this now-relicensed, luck-of-the-draw sentencing world, driven by the happenstance of which particular judge is sentencing the defendant.

B. Majority's Step Two

I acknowledge that the majority claims that it has a “one-step” sentencing system. Majority Op. at 8, 19–21. But the majority doesn't acknowledge as a second step what district courts do with their newfound discretion to take the Chapter 5 peek or not. Whichever way the district court chooses, the choice itself is a second step.

The majority strips the offense of conviction from the sentencing analysis and thereby strands the entire sentencing decision inside the inescapable Chapter 7. I can't sympathize with the majority's plight from doing so—namely that reasonable people will think three to nine months isn't a reasonable prison sentence for a handgun-wielding, liquor-store robber like Mr. Moore or a death-threatening menace like Mr. Moon Seals. The majority's need to fashion a Chapter 5 rescue plan to try to escape § 3553(a)(4)(B) and Chapter 7 isn't a legal basis to do so. In fact, the need for a rescue plan should tip off the majority that its statutory interpretation is faulty. Neither Congress nor the Sentencing Commission has authorized the majority's discretionary Chapter 5 peek, which is simply a hunched, backdoor dash to § 3553(a)(4)(A) and Chapter 5, an avenue the majority's own interpretation of “or B” forecloses.

1. The Framework of the Sentencing Guidelines

The first problem with the majority's analysis is that Chapters 5 and 7 cover different things. It would make no sense for a district court to say, “Looking at what your Chapter 5 range would have been if the Moon Seals en banc court hadn't erased it (for Moon Seals, 33 to 41 months), I am going to increase your Chapter 7 time by 33 months (or whatever number of months between 0 and the statutory maximum of 120 months) even though your offense of conviction is obviously unrelated to your probation-violating conduct breaching my trust.” Offenses of conviction and probation violations don't mix and match. In fact, as shown above, Congress and the Sentencing Commission have gone to a lot of trouble keeping them separate.

Further, it is unclear how this Chapter-7-boosting will even work. Say a court “sees the good” in a multi-time convicted armed bank robber whose latest offense carries a high total offense level and criminal-history category. The court decides to “take a chance” and varies downward to award probation, presumably with an equally accommodating AUSA as prosecuted Mr. Moon Seals. The next week the probationer violates a probation condition by traveling across state lines without permission. Under Moore I, after revoking probation, the court would, in whichever order of hearings it chose, (1) resentence the defendant for his bank-robbery offense of conviction under Chapter 5 and the § 3553(a) factors and (2) sanction the defendant for his probation violation under Chapter 7. That is what those two chapters are built for. Under the majority's approach, the district court could no longer sentence the armed bank robbery. So that's a freebie offense of conviction. To try to contain the fallout from this astonisher, the majority permits the district court to “peek” at the Chapter 5 range after variances (or maybe without looking at variances, I'm uncertain) and then drag it back to Chapter 7 to punish the offense of conviction under the false label of a breach of trust for violating probation. None of this makes sense or fits the statutory and guidelines framework.

2. 18 U.S.C. § 3553(a)(4)

The majority opinion is emphatic that “or (B)” is disjunctive and thus that (a)(4)(A) and (B) are mutually exclusive.⁸ Majority Op. at 14–15. For probation violators like Mr. Moon Seals, the majority declares that “[s]ection 3553(a)(4)(A) does not apply.” Id. at 22. It needs to stick with that. It can't wiggle free with a statement that “[t]he court may vary upwards (as with any sentence) according to the § 3553(a) factors, and in making this determination, the court should consult Chapter 5's recommended range of imprisonment, particularly when considering § 3553(a)(1), (2), and (6).” Id. What the majority really is saying is § 3553(a)(4)(A) does not apply—unless the majority really needs it to “apply” so that the final sentence isn't ridiculously low. Again, this twisting and twirling is unnecessary under Moore I. (And as a note to the reader, as stated below, I think the majority leaves the other § 3553(a) factors behind too when it applies “or (B)” and beelines for Chapter 7.)

Once properly invoked, § 3553(a)(4)(B) rules out everything for the upcoming probation-violation sentence except what § 3553(a)(4)(B) allows. And all that § 3553(a)(4)(B) allows in determining a probation-violation sentence is “the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code.” So Chapter 7. And as discussed next, Chapter 7 is self-contained.

3. U.S.S.G. Chapter 7

Nothing in Chapter 7 authorizes or contemplates the majority's discretionary leap back to § 3553(a)(4)(A) for its Chapter 5 peek. Both § 3553(a)(4)(B) and Chapter 7 are absolute and all-inclusive. And that makes sense. The 1994 amendments were enacted after Smith to unjam Chapter 5 and 7 and to keep them separate from each other.

The majority describes its Chapter 5 peek as a Chapter 7 “upward variance into the Chapter 5 range.” Majority Op. at 19. Neither the statutes nor the Sentencing Manual permits this. On one hand, the majority disavows any statutory ability to resentence the offense of conviction under Chapters 1 through 5 of the Sentencing Manual under § 3553(a)(4)(A), but on the other hand, it allows a court to do the same thing through a “variance” in the Chapter 7 range using the abandoned Chapter 5 range. It bears repeating: Chapters 5 and 7 are fenced apart by design. They address separate concerns. The majority cannot treat the Chapter 5 advisory range for the offense of conviction like a Chapter 2 specific offense characteristic or a Chapter 3 upward adjustment to Chapter 7's sentencing table.

In formulating Chapter 7, the sentencing commission chose to “consider[ ] a violation resulting from a defendant's failure to follow the court-imposed conditions of probation or supervised release as a ‘breach of trust.’ ” U.S. Sent'g Guidelines Manual ch. 7, pt. A(3)(b) (2021). Under this approach, “the nature of the conduct leading to the revocation would be considered in measuring the extent of the breach of trust.” Id. (emphasis added). The intent was “to sanction the violator for failing to abide by the conditions of the court-ordered supervision.” Id. The Chapter 7 policy statements “seek to prescribe penalties only for the violation of the judicial order imposing supervision.” Id. ch. 7, pt. B, introductory commentary (emphasis added). The sole mentioned use for § 3553(a) is to help courts determine whether the probation-violation sanction should “be served consecutively or concurrently to an undischarged term of imprisonment.” Id. Obviously, that issue isn't part of the present appeal.

“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).” Id. § 7B1.3(b). The sentencing table at that section sets ranges based on (1) the Grade of Violation (graded more seriously from C to A) and (2) the Criminal History Category previously calculated for the offense of conviction. Id. § 7B1.4(a). In Chapters 5 and 7, the Guidelines Manual furnishes separate sentencing tables for the separate conduct activating them. See id.; id. ch. 5, pt. A. Nothing in the Guidelines Manual approves of the majority's leap back to § 3553(a)(4)(A) for its Chapter 5 peek. And nothing approves using a Chapter 5 peek in varying from the Chapter 7 sentencing ranges.

All the majority offers otherwise is this statement from Chapter 7's introduction: “[A]t revocation the court should sanction primarily the defendant's breach of trust, while taking into account, to a limited degree, the seriousness of the underlying violation and the criminal history of the violator.” Majority Op. at 19 (quoting U.S. Sent'g Guidelines Manual ch. 7, pt. A(3)(b) (2021)). But far from approving the use of Chapter 5 to set Chapter 7 prison time, this language reinforces that Chapter 7's focus is on the breach of trust. In referring to the seriousness of the underlying violation, Chapter 7 refers to the probation-violating conduct, not to the conduct underlying the offense of conviction. And the “criminal history” referred to is accounted for in the Chapter 7 table itself.

4. General § 3553(a) Factors

Nor would any of the § 3553(a) factors help the majority in authorizing district courts to increase Chapter 7 sanctions for probation violations. The majority claims that the probation-violation-sentencing court can rely on § 3553(a)(1) to consider “the nature and circumstances of the offense and the history and characteristics of the defendant.” Majority Op. at 18 (quoting 18 U.S.C. § 3553(a)(1)). But, as throughout subchapter A, § 3553(a)(1) refers to the offense—not to the probation violation. That focus on the offense fits § 3553(a)(4)(A), not § 3553(a)(4)(B).

In addition, the majority faces the same old problems. Section 3553(a)(4)(B), whose language the majority says is specific and thus beats any general language, Majority Op. at 13, is all-inclusive for what courts may consider: “The court, in determining the particular sentence to be imposed, shall consider ․ the kinds of sentences and the sentencing range established for ․ (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 section 994(a)(3) of title 28, United States Code.” 18 U.S.C. § 3553(a)(4)(B) (emphasis added). That directs the exclusive use of Chapter 7, not § 3553(a). Section 3553(a)(1), (2), and (6) all have their place— but it's in evaluating the sentence for the offense of conviction.⁹ By immunizing the offense of conviction, the majority throws these subsections overboard too.

And the majority faces another problem, too. Section 3565(a)— Revocation of Probation—tells us exactly when courts may turn to § 3553(a) factors. Courts may use those factors (“to the extent that they are applicable”) in determining whether to revoke probation. But nothing authorizes courts to use those factors in imposing the probation-violation sanction. See 18 U.S.C. § 3565(a).

5. 18 U.S.C. § 3661

In a footnote to close the opinion, the majority states that “[c]onsidering the defendant's pre-probation conduct for sentencing purposes is permissible because by statute, ‘[n]o limitation shall be placed on the information concerning the background, character, and conduct’ of the defendant.” Majority Op. at 22 n.10 (quoting 18 U.S.C. § 3661). Again, the same old problems. The majority reasons that the “or” preceding § 3553(a)(4)(B) leaves (a)(4)(A) and its Chapter 5 calculation inapplicable. See Majority Op. at 22. And it should recognize that Chapter 7 provides its own exclusive factors to be used for sanctioning probation revocations. See id. Further, as with subchapter A's provisions, subchapter B's § 3661 focuses on an appropriate sentence for “a person convicted of an offense.” So under § 3553(a)(1) and (2), all “information concerning the background, character, and conduct of a person” is fair game for that purpose. 18 U.S.C. § 3661. But that's not so in the probation-violation setting. As mentioned, § 3553(a)(4)(B) and Chapter 7 limit the relevant considerations to those contained in those provisions. Moreover, even if § 3553(a)(1) and (2) applied, they could not boost the Chapter 7 probation-violation sentence with Chapter 5's range built on the offense of conviction.

C. Ambiguity

I would conclude that Moore I correctly read “resentence the defendant under subchapter A” and “or (B)” as unambiguous. But as shown above, those provisions are at the very least ambiguous. And the ambiguity opens the door to the quoted legislative history, a poison pill for the majority. And this legislative history is gold. It's not a staffer typing a committee report or a Representative Joseph or Josephine Schmoe speaking on C-SPAN at midnight. Senator Thurmond was the Chairman of the Senate Judiciary Committee in 1984 and helped shepherd the Sentencing Reform Act of 1984 through Congress, and he was the Ranking Member of the Senate Judiciary Committee in 1990 and 1994 when helping pass the 1994 amendments now at issue. And Judge Wilkins was then the initial Sentencing Commission Chairman, who led the Commission in its creation of the sentencing guidelines and then crafted and explained the same 1994 amendments. The legislative history leaves no doubt about why the 1994 amendments for §§ 3562(a)(2) and 3553(a)(4)(B) were needed and how they fixed the need.

Following the lead of the parties, the majority quotes two incomplete snippets from legislative history to contend that the legislative history is mixed. Majority Op. at 17–18. First, it says that Senator Thurmond “explained that adding § 3553(a)(4)(B) would ensure that revocation decisions would be made ‘based upon sentencing guidelines and policy statements issued by the Commission specifically for that purpose’—that is, the Chapter 7 guidelines and policy statements.” Id. at 17 (quoting 136 Cong. Rec. 28228 (1990)). Second, it quotes this statement: “[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. at 17–18 (quoting 136 Cong. Rec. 28231 (1990)). It concludes that the two statements “reject[ ] using the Chapter 5 guidelines for post-revocation sentencing.” Id. at 17.

This grievously misunderstands what Senator Thurmond and Chairman Wilkins said and supplies the crumbly cornerstone of the majority opinion.¹⁰ The quoted snippets do not reject Chapter 5 guidelines for “post-revocation sentencing.” They reject using the then-mandatory Chapter 5 sentencing range to constrain a district court from imposing an incremental sanction for the probation violation under Chapter 7. Remember, the 1990 rewrite of Chapter 7 lay on the doorstep. Partly for that reason, the snippets from Chairman Wilkins and Senator Thurmond address the need to separate Chapter 7 from Chapter 5. Not one word of legislative history suggests that Senator Thurmond and Chairman Wilkins—again, in an era of mandatory guidelines—ever contemplated repealing the mandatory Chapter 5 sentencing range for the offenses of conviction and leaving those offenses unpunished.

When considering the likelihood of what would have been a revolutionary repeal of Chapter 5 for probation violators, especially in 1994 during the mandatory-guidelines era, contrast that with Chairman Wilkins describing the two proposed statutory amendments as “minor modifications.” 136 Cong. Rec. 28230 (1990). And the next year, speaking to his colleagues, Senator Thurmond describing the proposed amendments as “technical and clarifying proposals.” 137 Cong. Rec. 14821 (1991).

Further, look at just some of the legislative-history language the majority ignores: (1) Chairman Wilkins protesting that Smith precluded courts “from considering the probation violation itself as a basis for sentencing above the original guideline range applicable at the defendant's initial sentencing” (so insisting on a sanction for the probation violation incremental to the Chapter 5 sentence for the offense of conviction); (2) Chairman Wilkins stating the Commission's belief that “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” (but not when sentencing offenses of conviction, which remained under Chapter 5); and (3) Chairman Wilkins criticizing Smith because under it “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” (needing probation violations to be sanctioned separately from Chapter 5 as the 1990 Chapter 7 does). 136 Cong. Rec. 28230 (1990) (emphasis added).

D. Probation Under Zone A and B of the Sentencing Manual

Under U.S.S.G. § 5B1.1, probation is available only if the defendant's advisory guideline range falls within Zone A or B of the Chapter 5 sentencing table. In Mr. Moon Seals's case, the district court impliedly granted a twelve-level downward variance to reach Zone A and its associated zero-to-six-month advisory sentencing range. Neither the parties nor the district court mentioned the number of levels or gave a meaningful explanation for dropping from a total offense level of 20 to 8. The government didn't object, so presumably this defect is waived.

But a variance to Zone A or B still leaves a major issue in this appeal, and future appeals. What effect does a downward variance to Moon Seals's Zone A range of zero to six months have on his resentencing for the offense of conviction (if Moore I applied) or to his Chapter 5 peek (under the new rule of majority opinion). The cases are legion—including Moore I and Moon Seals— in which the court warns of dire consequences if the defendant violates probation. These threats are directed at a prospect or promise of a higher sentence for the offense of conviction after any probation violation.

I think a court is locked in by the Chapter 5 range calculated to allow probation under § 5B1.l. The downward variance must be justified and explained. An earned downward variance shows what the sentence for the offense of conviction would be with or without a sentence of probation. Before varying down, the court must consider the PSR and the § 3553(a) factors. I don't see how the sentencing range can change based on post-probation-sentence conduct. So if the court had affirmed Moore I, I would have voted to limit the court to the zero-to-six-month range at step one for Mr. Moon Seals.¹¹ And in the majority's system, I would limit any Chapter 5 peek to that range too. An incidental benefit to doing so would be to dampen the grievous disparity problem created by the majority's post–Moore I system. But I concede defeat on those points.

At a bare minimum though, the majority should insist that a district court justify any Chapter 5 boosts to Chapter 7 sanctions by explaining how that upward boost ties to the breach of trust for violating probation.

E. Meaningful Review

Under Moore I, the standards of review for Chapter 5 guidelines and Chapter 7 policy statements were established. That enabled us to meet our duty to meaningfully review sentences. I am uncertain how we are supposed to review guidelines’ prison time imported from Chapter 5 into Chapter 7 to boost a probation-violation sanction. District courts can already vary upward from Chapter 7's ranges found at § 7B1.4 based on the degree of the breach of trust shown by the defendant's violation of probation and criminal history. Trying to meaningfully review a sentence for the degree of a breach of trust based on an upward variance for something entirely different—the offense of conviction— appears to me to be futile. The two things don't mix.

Further, I think that reviewing Chapter 5 guidelines and reviewing Chapter 7 policy statements are two different things. In United States v. Vigil, 696 F.3d 997 (10th Cir. 2012), considering policy statements, we said that “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.” Id. at 1002–03 (emphasis added). And 18 U.S.C. § 3742(e)(4) sets a different standard of review than used in Gall v. United States, 552 U.S. 38 (2007) and Rita v. United States, 551 U.S. 338 (2007)—a “plainly unreasonable” standard—for “offense[s] for which there is no sentencing guideline.”

By mixing oil and water—Chapter 5 and Chapter 7—the majority gives us hybrid sentences we haven't confronted yet. Using the Chapter 5 peek, does the district court first review the advisory range there for reasonableness under the § 3553(a) factors before transporting all or some of it to Chapter 7? Must the amount transported be within a Chapter 5 range approved as reasonable? Can the court vary dramatically upward from the Chapter 5 range and then reinsert the heightened range in Chapter 7, after obtaining a more lenient standard of review? Does it matter how a court splits the total sentence between Chapter 7 and Chapter 5? Must each piece be segregated and reviewed separately? Or may the district court just give a glob total number of months without segregating? Would a total three-month sentence be presumed reasonable as within the three-to-nine-month range for Mr. Moore and Mr. Moon Seals? Would combining the top ends of the Chapter 5 and Chapter 7 guideline ranges also be presumed reasonable? Would combining double the top ends of those ranges be reasonable? Double on one and triple on the other? Maybe the majority is correct that all this will be smooth sailing. But I see some seasickness ahead. Our settled standards of review and direction under Moore I provided fairness and certainty. No longer.

F. Remand

The majority's remand in Mr. Moon Seals's case also poses thorny questions. First, the panel reviewed the sentence under the plain-error standard. It concluded that Mr. Moon Seals could not show substantial prejudice, because his 36-month sentence lay within the Chapter 5 range of 33 to 41 months. And whether the district court's sentence was a coincidence or not, we noted that 36 months just happened to be the sum of the low ends of the Chapters 5 and 7 advisory ranges. Moon Seals, 156 F.4th at 1070 n.7. Under the majority's system, what happens on remand? Would we affirm if the district court this time said it won't peek at Chapter 5 and imposes the low end of three months for the probation violation? Would we affirm if the district court imposes no time for the probation violation and boosts that by 36 months under Chapter 5, having already said that 36 months is appropriate under Chapter 5? Would we affirm if the court imposes 24 months under Chapter 7 and boosts it by 60 months after the Chapter 5 peek? I suspect that we'd affirm all these possibilities, which shows the disparity problem in living color.

G. Circuit Court Decisions

The majority says that “Moore I’s approach ․ is at odds with other circuits’ sentencing procedures.” Majority Op. at 3. Again, Moore I’s two-step approach involved separate sentencings for separate conduct using separate sentencing tables located in the same Sentencing Manual. In counting circuit courts, what the majority fails to mention is that none of those decisions have analyzed the 1994 amendments in any depth or even considered the legislative history from the mouths of the two primary actors—Chairman Wilkins and Senator Thurmond. If by saying Moore I is “at odds” with the other circuits the majority means to say that the other circuits have considered and rejected Moore I’s two-step approach, it is wrong. Twenty-odd years of circuit precedents have produced a scattered grab-bag of opinions with little analysis. That is hardly a condemnation of Moore I. Nor is it an endorsement of the majority's approach here. In fact, so far as I see, no circuit has replicated the majority's Chapter 5–peek approach either. The cases aren't helpful. Even so, to be complete, I recite them below.

Some of the circuit-court cases that the majority cites (as well as others discussed below) focus on Chapter 5. That isn't consistent with either Moore I or the majority opinion's approach in this case. I note that the majority cites the first three listed.

1. In United States v. Michael, 12 F.4th 858 (8th Cir. 2021), the district court revoked a sentence of probation in a child-pornography case (the defendant suffered from Asperger's syndrome and had a mental capacity of a 13- or 14-year-old) and imposed a 96-month sentence. Id. at 859. The Chapter 7 range for the probation violation was three to nine months. Id. at 860. But the Eighth Circuit keyed in on the Chapter 5 range in setting the sentence: “When a probationary sentence is revoked, applying the presumption of reasonableness to a term of imprisonment falling within the original Sentencing Guidelines range for the underlying crime of conviction is natural.” Id. (emphasis added). The circuit added that “in the case of a probation violation, defendants have not served a term of incarceration. A defendant ought not be placed in a better position to challenge the reasonableness of a Guidelines sentence for a crime of conviction after violating probation than he is before breaching the court's trust.” Id. (citing United States v. Verkhoglyad, 516 F.3d 122, 135 (2d Cir. 2008)). I agree.

2. In Verkhoglyad, the court sentenced a probation violator to 57 months of imprisonment. 516 F.3d at 124. The Chapter 7 range was 5 to 11 months, and the Chapter 5 range was 46 to 57 months. Id. at 125, 127. The Second Circuit rejected the defendant's argument that the district court erred by not mentioning his Chapter 7 range. Id. at 128. The circuit deemed this silence unimportant when that range had been mentioned in the violation report. Id. at 129. So the court affirmed the 57-month sentence that was based on the original Chapter 5 sentencing range. Id. at 124, 127. Again, this does not align with the majority opinion's present approach.

3. In United States v. Olabanji, 268 F.3d 636 (9th Cir. 2001), the defendant pleaded guilty to forgery, which carried a zero-to-six-month range under Chapter 5. Id. at 637. After receiving probation, the defendant violated his conditions, and the district court revoked the sentence of probation. Id. The Chapter 7 range was three to nine months. Id. The Ninth Circuit “acknowledge[d] that § 3565(a)(2) might be read to require only the consideration of the policy statements or the sentencing guidelines, given the use of the disjunctive in § 3553(a)(4)(B).” Id. at 639. As the majority opinion in our case notes, the court relied on § 3553(b)—stricken as unconstitutional by Booker—to conclude that the district court erred by not “consider[ing] the sentencing guidelines range for the underlying offense as part of the calculus for imposing an appropriate term of incarceration.” Id.; Majority Op. at 17 n.7. The reliance on § 3553(b) was mistaken, but the rest remains. Again, that does not align with the majority's present approach.

Other cases cited by the majority (and others as discussed below) focus on Chapter 7. I note that the majority cites the first two cases.

1. In United States v. Cook, 291 F.3d 1297 (11th Cir. 2002), a defendant pleaded guilty to interstate transportation of stolen checks. Id. at 1298. The Chapter 5 guideline range was 4 to 10 months. Id. After obtaining a sentence of probation, the defendant violated her conditions, and the district court revoked probation. Id. at 1299. The Chapter 7 range was 5 to 11 months. Id. The court imposed a 24-month sentence. Id. On appeal, the Eleventh Circuit stated that the Chapter 7 range was not binding, meaning that the district court need only consider that range in determining a sentence. Id. at 1301–02. The circuit ruled that “the district court did not err in ordering Cook to serve a sentence of twenty-four months in prison because the district court complied with the provisions of subchapter A.” Id. at 1302. The district court had itemized reasons for exceeding the Chapter 7 range, all tied to the defendant's breach of trust in violating her probation conditions. Id. at 1299. So I agree with the majority that this sentence was “based on consideration of Chapter 7 alone.” Majority Op. at 17. This illustrates that Chapter 7 has its own mechanism for varying upward depending on the defendant's violation and criminal history. Cook doesn't align with the majority's present approach.

2. In United States v. Tschebaum, 306 F.3d 540 (8th Cir. 2002), the defendant pleaded guilty of making a false statement to the IRS. Id. at 542. After a substantial-assistance reduction, his Chapter 5 sentencing range qualified him for a sentence of probation. See id. But he violated his conditions, and the district court revoked his probation. Id. The court sentenced him to 30 months of imprisonment. Id. On appeal, the Eighth Circuit stated that “when a defendant's probation is revoked a sentencing court should give attention to the policy statements found in chapter 7 of the sentencing guidelines” and “then sentence the defendant within the statutory limits of the original crime.” Id. at 544. Because the sentence was under Chapter 7, the “plainly unreasonable” standard of review applied. Id. (quoting 18 U.S.C. § 3742(a)(1)). The district court had varied up from the 10 to 14 months Chapter 7 range because “the suggested range did not adequately reflect the seriousness of [the defendant's] probation violation.” Id. So again, this case relies on a Chapter 7 variance upward based on the defendant's breach of trust—not his underlying offense of conviction. I support that.

3. In United States v. Kippers, 685 F.3d 491 (5th Cir. 2012), a defendant pleaded guilty to using a telephone in committing a conspiracy to possess an illegal drug with an intent to distribute it. Id. at 493–94. The district court agreed to a sentence of probation. Id. at 494. The defendant assaulted his daughter, and the court revoked his probation sentence. Id. At first, the district court had planned to extend his term of probation, but the defendant angered the court by minimizing his assault and calling his daughter a liar. See id. at 495. Though Chapter 7 set an advisory range of three to nine months for the violation, the court imposed a four-year sentence. Id. at 496. On appeal, the Fifth Circuit affirmed after noting that the sentence “reflected the seriousness of the crime providing the basis for the revocation [the assault on the daughter].” Id. at 500.

4. In United States v. Moulden, 478 F.3d 652 (4th Cir. 2007), a defendant pleaded guilty to conspiring to commit bank fraud and pass counterfeit checks. Id. at 653. The district court granted a three-year sentence of probation. Id.

After many violations, the court finally revoked probation. Id. at 654. The Chapter 7 advisory range was three to nine months. Id. Finding that inadequate, the court imposed an 18-month sentence for “flaunt[ing] the rules of the court” and “the requirements of probation.” Id. On appeal, the Fourth Circuit applied “plainly unreasonable” as the standard of review. Id. at 655. The circuit affirmed the defendant's sentence “in light of [the defendant's] pattern of refusing to conform to the requirements of probation.” Id. at 658.

In a third batch of cases, the courts cite Chapters 5 and 7 ranges and arrive at a sentence without explaining the role of either the offense of conviction or probation violation as the reason for the sentence. The majority cites none of these three cases.

1. In United States v. Holdsworth, 830 F.3d 779 (8th Cir. 2016), the defendant pleaded guilty to being a felon in possession of a firearm. Id. at 780. Despite the defendant's long criminal history, the district court agreed to impose a sentence of probation. Id. The defendant's Chapter 5 range was 41 to 51 months. Id. After the defendant violated probation, the court revoked his “supervised release.”¹² Id. at 781–82. His advisory range under Chapter 7 was 8 to 14 months. Id. at 782. The court imposed a 51-month sentence. Id. Because the “resulting sentence of 51 months’ imprisonment was within the statutory limit and therefore not ‘contrary to law,’ ” the Eighth Circuit affirmed. Id. at 784, 786.

2. In United States v. Tatum, 760 F.3d 696 (7th Cir. 2014), the defendant pleaded guilty to using a telephone to facilitate his drug crime. Id. at 696. Though agreeing to a sentence of probation, the district court cautioned the defendant that any violations of the probationary conditions would result in a two-year prison sentence. Id. at 696–97. After the defendant violated the conditions, the court imposed the promised sentence. Id. at 697. The Chapter 7 range was 7 to 13 months. Id. On appeal, the Seventh Circuit concluded that the sentence was lawful because it was within the statutory range. Id. But on separate grounds, the circuit reversed after determining that preannouncing the penalty for a violation is “too much like sentence first, trial afterwards.” Id.

3. In United States v. Vixamar, 679 F.3d 22 (1st Cir. 2012), two defendants pleaded guilty to two counts each of passport fraud. Id. at 24. For me, this is the most difficult case to categorize. The district court sentenced the defendants to a three-year term of probation with a term of home confinement. Id. The violations were soon coming, including depositing for themselves a check from an elderly woman in hospice care and stealing a check from a nursing-home resident. Id. at 24–25. After revoking the sentences of probation, the court calculated one defendant's Chapter 7 range at 6 to 12 months and the other's at 8 to 14 months. Id. at 27. The court sentenced each defendant to 36 months of imprisonment. Id. On appeal, the defendants argued that their sentences were substantively unreasonable. Id. at 29. The First Circuit noted that the statutory-maximum sentences were 20 years, that the top ends for the defendants’ Chapter 5 ranges for their original offenses were 18 and 24 months, and that the top ends of the defendants’ Chapter 7 ranges for their probation-violation sanctions were 12 and 14 months. Id. at 32. The circuit affirmed the sentences after noting that the record made “clear that the entire 36-month sentence was sparked by her breach of trust[.]” See id. at 33–34.

All told, the circuit cases aren't illuminating. They take different approaches and don't apply either the sentencing method of Moore I or of the majority's opinion.

III. Conclusion

For the reasons stated, I would affirm Moon Seals's sentence and continue Moore I as the governing precedent in our circuit for the questions posed by this appeal.

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FOOTNOTES

1.   In addition to the mandatory conditions a court must impose on a probationer, the court may impose special conditions to tailor the sentence to the probationer's particular circumstances. See 18 U.S.C. § 3563(b).

2.   He argued for preservation purposes only that Moore I was wrongly decided.

3.   In full, § 3565(a) states:(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 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 resentence the defendant under subchapter A.

4.   The entire § 3553(a) factors are (1) the “nature and circumstances of the offense and the history and characteristics of the defendant”; (2) “the need for the sentence” to “reflect the seriousness of the offense,” adequately deter criminal conduct, “protect the public from further crimes of the defendant,” and rehabilitate the defendant; (3) “the kinds of sentences available”; (4) the “kinds of sentence and the sentencing range established by” the sentencing guidelines; (5) policy statements of the Sentencing Commission; (6) “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”; and (7) “the need to provide restitution” to victims.

5.   Section 3583(e)(3) allows the court to “revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release” if the court finds the defendant violated his supervised-release conditions.

6.   Moreover, Amicus's argument that Moore I does not conflict with Kelley falls flat. He suggests the court rejected Chapter 5's application because those who violate supervised release, having served the term of imprisonment for the underlying crime, are “simply not in a position comparable to defendants facing initial sentencing for commission of the underlying crime.” Amicus Br. at 14 (quoting Kelley, 359 F.3d at 1307). But Kelley’s observation does not distinguish between violators of supervised release and violators of probation; it distinguishes violators of supervised release and “defendants facing initial sentencing for commission of the underlying crime.” Kelley, 359 F.3d at 1307.

7.   In United States v. Olabanji, the Ninth Circuit found error when a district court “fail[ed] to consider the range applicable to the underlying offense after rejecting the range prescribed by the [Chapter 7] policy statements.” 268 F.3d 636, 639 (9th Cir. 2001). But unlike Moore I, Olabanji did not find that both § 3553(a)(4)(A) and (B) applied to sentencing following probation revocation; it instead identified § 3553(a)(4)(B) as the relevant provision. Id. at 638–39. Regardless, Olabanji’s holding may no longer be tenable in light of United States v. Booker, 543 U.S. 220 (2005), which severed the key provision Olabanji used to reach its conclusion—§ 3553(b)(1). See Booker, 543 U.S. at 258; Olabanji, 268 F.3d at 639.

8.   This quotation comes from a letter written by Judge William Wilkins, Chair of the Sentencing Commission, explaining the amendment's purpose.

9.   Reading § 3565(a)(2) as instructing courts to resentence only for the offense of conviction raises another issue for the dissent: § 3553(a)(4)(B) would not be triggered; Chapter 7 would not apply. The dissent suggests that § 3553(a)(4)(B) is a “standalone direction” to sentence the defendant for the probation violation. Dissenting Op. at 28. It is unclear what authority exists for a court to issue a probation-violation sentence from § 3553(a)(4)(B) alone.

10.   Considering the defendant's pre-probation conduct for sentencing purposes is permissible because by statute, “[n]o limitation shall be placed on the information concerning the background, character, and conduct” of the defendant. 18 U.S.C. § 3661. And considering the defendant's prior offenses when determining an appropriate sentence does not threaten double jeopardy. See Witte v. United States, 515 U.S. 389, 403–404 (1995) (finding no double jeopardy issue when a prior offense enhanced the defendant's sentence for the crime of conviction because the enhancement “evinc[es] the judgment that a particular offense should receive a more serious sentence,” given the recidivist “character of the offender”).

1.   The Senate confirmed the initial Commission members on October 16, 1985. Brent E. Newton, supra, at 1188.

2.   The Sentencing Reform Act of 1984 passed overwhelmingly and with bipartisan backing. As a small sampling of this, Senate co-sponsors included Senators Strom Thurmond, Edward M. Kennedy, Joseph R. Biden, and Orrin Hatch. United States v. O'Neil, 11 F.3d 292, 300 (1st Cir. 1993).

3.   Chairman Wilkins stated 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.” 136 Cong. Rec. 28230.

4.   I don't understand the majority's “link” and “delink” discussion or how it reads Moore I in the discussion. See Majority Op. at14–15. I think the majority might just be saying that Moore I at step one required a resentencing on the original offense under Chapter 5. If so, I agree. And if by “delinking,” the majority is expressing its view that sentencing for the original offense no longer occurs, I agree the majority is saying that, but I dispute the 1994 amendments did any such thing.

5.   The majority relies on Kelley to support the majority's statement that “[w]e have already rejected a two-step process like Moore I when the court sentences a defendant after revoking his supervised release.” Majority Op. at 15. This misses the mark. The majority quotes some Kelley language that I have quoted above: “§ 3553(a)(4)(A) has no application when a violation of the defendant's conditions of supervised release is at issue; in such cases the relevant consideration ․ is the Chapter 7 policy statements referenced in § 3553(a)(4)(B).” Id. (quoting 359 F.3d at 1306). But the majority wrongly says that Kelley defeats Moore I’s two-step sentencing system (first, sentencing the offense of conviction under Chapter 5; and second, sanctioning the probation violation under Chapter 7). Id. at 16. It errs by not acknowledging that Kelley is acting entirely within Chapter 7. Because it is a supervised-release case, Moore I’s first step had already long passed. The district court had imposed sentence for Mr. Kelley's offense of conviction, and Mr. Kelley had served it. So because Kelley was a supervised-release case, Kelley had no reason to consider Moore I’s first step, let alone reject it. My key takeaway from Kelley is that it concludes that § 3553(a)(4)(A) does not apply to the Chapter 7 violations. I wholeheartedly agree.

6.   As the primary author of Moore I and Moon Seals, I have always referred to the resentencing of the offense of conviction as “step 1,” but as in the above example, it can be step 2 just as easily and usually will be. In hindsight, I wish I'd deemed the probation revocation as step 1 and the offense-of-conviction sentencing as step 2. But depending on how the district court proceeds, steps 1 and 2 can switch back and forth.

7.   Chic Anderson's memorable call as Secretariat separated from Sham and the field at the 1973 Belmont Stakes.

8.   I don't care whether “or” is disjunctive or conjunctive. If § 3553(a)(4) read “and (B)” instead, the majority would still say that (B) overrides (A), as the more specific. What is important is that “or” is part of the Smith fix. It separates the probation-violation sanction from the imprisonment time for the offense of conviction. It doesn't say choose the red or blue pill. It says if you're at the probation-violation stage, use Chapter 7, or if you're at the resentencing stage, use Chapter 5. It ensures that the November 1, 1990, version of Chapter 7, with its separate sentencing table, can be enforced, which Smith had prevented. Under §§ 3565(a)(2) and 3553(a)(4)(A) and (B), the district court addresses what it's asked to do at a given instant. If it's sanctioning a probation violation, it gains its authority to do so and direction how by going directly to § 3553(a)(4)(B). It doesn't waste time and effort by consulting each section in subchapter A—which concerns the offense of conviction. But if resentencing the offense of conviction after revoking the sentence of probation, it runs through subchapter A, including the § 3553(a) factors in general and § 3553(a)(4)(A) in particular.

9.   I acknowledge that Kelley says that “[t]o be sure, pursuant to 18 U.S.C. § 3553(a)(1), the seriousness of the offense is one factor among many the district court should consider in sentencing upon revocation of supervised release, whether or not the district court elects to depart from the Chapter 7 recommended sentencing range.” 359 F.3d at 1306. If Kelley is speaking to the “offense” leading to revocation of the supervised release, I agree. If Kelley is speaking to the original offense of conviction, I disagree, because § 3553(a)(4)(B) and Chapter 7 are all-inclusive. But even if a district court somehow has room to consider § 3553(a)(1)’s “nature and circumstances of the offense and the history and characteristics of the defendant” under those provisions, that information would be relevant only in measuring the degree of the breach of trust under Chapter 7 (and I can't see how it would be). The majority stretches for § 3553(a)(1), (2), and (6) as legitimizing its Chapter 5 peek. It needs to be able to circle back from Chapter 7 to § 3553(a)(4)(A) to peek at the Chapter 5 range, or be stuck with a three- to nine-month sentencing range as perhaps varied by the degree of the breach of trust. And Kelley, § 3553(a)(4)(B), and Chapter 7 foreclose that circling back.

10.   The majority opinion uses similar snippets as do Moon Seals and the government in their briefing. So the reader can see the hollowness of these arguments, I attach the relevant pages of the legislative history to this dissenting opinion.

11.   In Moore I, the district court offered the defendant the low-end of the applicable sentencing range, 51 months, if he chose to forego a sentence of probation. We held the district court to that 51 months for the offense of conviction at step one, reasoning that the sentence could not increase based on post-offense conduct. Moore I, 30 F.4th at 1025–26.

12.   The opinion may be mistaken in using “supervised release.” The first mention of a revocation was while the defendant was still on probation. Holdsworth, 830 F.3d at 781.

TYMKOVICH, Circuit Judge.