*1 tested relevant conduct which the court America,
found to be true.” Defendant maintains that UNITED STATES finding clearly Plaintiff-Appellee, district court’s errone- disagree. ous. We court has The district broad dis HOREK, Defendant-Appellant. Mark A. whether to cretion to determine award a 3El.l(a), pursuant reduction No. 97-2268. and we will not disturb its decision absent clearly findings. erroneous United States v. Appeals, Court of (10th Cir.1996). 920, 922 Gassaway, 81 F.3d Tenth Circuit. 3E1.1(a), Under district court 3, 1998. should reduce a defendant’s sentence two levels the defendant demon “[i]f acceptance responsibility
strates for his offense____” Thus, when a defendant ad- necessary support
mits the facts his con-
viction, generally he should be awarded a
reduction. Where a defendant acts in a man- acceptance responsi-
ner inconsistent with
bility, may prop-
erly refuse to reduce sentence. United Contreras,
States v. 1040-41 falsely A “defendant who contests,
denies or frivolously relevant con-
duct that the court determines to be true has
acted in a accep- manner inconsistent with (internal responsibility.” quota-
tance of omitted).
tions
The district court found that the “Govern- proved by preponderance
ment of the evi-
dence that accountable for
approximately kilograms of twelve metham-
phetamine.” Contrary to government’s
proof, Defendant testified he was re-
sponsible only kilograms five
methamphetamine. The specif- district court
ically testimony found that Defendant’s “falsely
not credible and that denied and
frivolously drugs contested” amount of
attributable to him. Based on the record us,
before signif- we conclude Defendant
icantly drugs understated the amount of
properly to him. Accordingly, attributable
the district court committed no clear error
by refusing to reduce sentence two levels 3El.l(a). §
AFFIRMED.
confinement as a condition of must from his deducted maximum term of im- prisonment and affirms.1
Background chronology of this case not in .dis- 1994, pute. April pleaded In guilty Horek obtaining one count of by bank funds false 2113(b). pretenses, in violation of 18 U.S.C. 20, 1995, January On the United Dis- States trict Court the Eastern District of Michi- gan years proba- Horek to three tion, included a condition that he which serve four home detention. The court also ordered Horek to make restitution in the $14,949.62. amount of found, pursuant to the United States Sen- (U.S.S.G.), tencing Guidelines that Horek’s offense level was seven and his criminal his- III, tory category resulting guide- in a line of four to ten pt. A. months. See U.S.S.G. ch. 5 This four- imprisonment range to-ten-month is in Zone B of the Table. id. As See indicated, however, impose the court did not imprisonment. a term of Horek was placed to U.S.S.G. 5Cl.l(c)(3), provides: which Butcher, V. Assistant Federal Public John applicable guideline range If the is in Zone Defender, NM, Albuquerque, for Defendant- Table, B minimum Appellant. may be satisfied ... a sentence of Fashing, Laura Assistant United States probation that includes a condition or .com- (John Attorney Kelly, Attor- J. United States inter- bination of conditions substitute brief), ney, her on the confinement, community mittent confine- Office, NM, Attorney’s Albuquerque, ment, or home detention for Plaintiff-Appellee. (e). according to the schedule in subsection (e) day allows one of home deten- ANDERSON, Subsection MeWILLIAMS, Before day impris- tion to be for one MURPHY, substituted Judges. Circuit 5CLl(e)(3). Similarly, onment. See MURPHY, Judge. Circuit day house, halfway may includes residence appeals Horek a nine-month sentence of day be substituted for one imprisonment imposed upon of his 501.1(e)(2). §id. argues Horek the sentence is 3, 1995, illegal February because the district court failed to On original in commu- its sentence and ordered deduct the months he served amended nity that Horek serve four months in a communi- confinement as a condition ty than four from the maximum sentence available for his corrections center rejects subsequent- months home Horek offense. This court Horek’s argument ly four months in a house. unopposed supplement appeal granted. Horek's motion to record on ing In December Horek’s de novo. States v. Guidelines See United Maltais, from the District transferred Eastern Michigan the District of New Mexico. Discussion 6, 1997, States Pro- On United argument rests his con petition Office filed a revoke Ho- bation *3 community that as a tention confinement probation grounds rek’s on the that he violat- his “imprisonment” condition of probation. of ed five conditions Horek meaning Sentencing within Guide the violating proba- to four of the five admitted must be maxi lines and deducted from the alleged tion conditions in the Petition for guideline imprisonment mum term of when sentencing of Revocation Probation. At a resentencing a defendant whose hearing, that the found ' has been revoked. violations were Grade under C violations Sentencing Horek’s Under the 7Bl.l(a)(3) statement). § (policy his- offense level was seven and his criminal original history Horek’s Because criminal III, tory guide- a category resulting in III, category was the court that the found imprisonment range line to ten of four imprisonment pt. months. See U.S.S.G. ch. 5 A. Because upon revocation of Horek’s guideline range is in B of Zone eleven five to months to U.S.S.G. Table, id., see court district 7B1.4(a) statement). (policy § Horek was options had three for mini- satisfying Horek’s imprisonment. to eleven months imprisonment, mum four-month term of see Horek then filed a Motion to Reconsider 501.1(c). 501.1(c), § § Under U.S.S.G. Illegal and Correct an and to Re- Sentence (1) imposed district could have hearing consider Detention. At the on this imprisonment sentence of of at four least motion, the district court Horek’s reduced (2) months; a sentence of at least one-month term of from eleven months to imprisonment plus a term of re- months, indicating nine that sentence of lease, placed awith condition that Horek be might eleven months Ex violate the Post community in confinement or home detention Clause of Facto the United Constitu- States portion for at least the of four-month argued tion.2 Horek that his sentence spent imprison- minimum term not in actual be should further decreased he had (3) ment; sentence of with a already served a halfway four months in spend that condition Horek at least four as a probation. By house condition of his confinement, months in intermittent commu- count, the two when com- sentences nity or home detention. See ie.,
bined,
four months in the
house
Application
also id.
5C1.1
Note 3.
plus
imprisonment,
great-
nine months
were
forgo
The district court
to
chose
original guideline range
er than
of four to
imposition
imprison
a sentence of actual
court, however,
ten
months.
district
did
ment,
instead
Horek to a
not further decrease Horek’s sentence.
probation which included the condition that
appeals
Horek
court’s im
community
district
Horek
four months in
con
position
arguing
of a nine-month
spent
finement. The four months Horek
in
community
four
community
months he
in
confinement were
a “sub
must be
confinement
deducted from
ten-
stitute” for
under
5C1.1 of
original
month
sentence
Guidelines.
offense,
501.1(e)(2)
leaving
(allowing
six months
the maximum
day
community
as
lawfully
day
term of
could
confinement
be
substituted for one
imposed upon
probation.
imprisonment).
be
revocation of his
Horek
be
contends that
legal
spent
community
This court reviews the district court’s
cause the
months he
interpretation
application
imprison-
and
of the Sentenc-
were a
confinement
substitute for
party
appealed
2. Neither
has
court’s
nine months.
reduction of the sentence
months
from eleven
period
against
imposed by
minimum
credit
ment,
satisfying his
thus
period
they
applied against
spent
court for the four-month
must be
imprisonment,
prior,
can now serve
confinement
to revocation
maximum sentence he
argues,
of his
He
Sentencing Guidelines.3.
under
the four months must still be deducted from
permit
Although the Guidelines
the maximum ten-month sentence for his
confinement
be “substituted”
offense,
limiting
thus
the sentence
ment,
necessarily follow that
not
it does
lawfully
imposed
which could
to six
Horek
four months
“imprisonment” under
finement constituted
acknowledges
the four months While this court
the distinc-
the Guidelines.
tion
community'
confinement are
between credit
a new sentence
Horek
properly
solely as a condition of
from the maximum
more
viewed
deduction
*4
501.1(c)(3)
term,
expressly pro-
guideline
the
probation.
require
Guidelines do not
Section
impose
spent
community
time
in
may
that a court
“a sentence of
confinement to be
vides
differently
or
treated
in
probation that includes a condition
combi-
these two contexts.
policy
concerning
... com- The intent of the
conditions that substitute
statement
nation of
imprisonment.”
upon
probation
munity
...
for
credit
revocation of
is clear.
confinement
501.1(e)(3)
added);
A
(emphasis
any
§
see also
defendant does not receive
credit
Id.
5Bl.l(a)(2)
against
(stating “probation
any
§
is autho-
a sentence of
for
id.
probation
applicable guideline
if ...
the
term of
served. See id. Horek’s
rized
proposed
Sentencing
interpretation
in
B of the
Table and the
would circumvent
Zone
purpose
provision by
imposes
crediting
a condition or combination
the
of this
the
court
of
term,
against
requiring intermittent
confine-
the maximum
conditions
ment, community
severely limiting
or home de-
thus
the maximum seritence
(c)(3)
provided
impose upon
in
a district court could
revocation
tention as
subsection
added));
§
probation. Nothing
id.
5F1.1
of a defendant’s
(emphasis
5C1.1”
(“Community
may
imposed
supports this differential
treat-
confinement
Guidelines
supervised
community
depending
ment of
confinement
probation
as a condition of
added)).
plausible
(emphasis
interpreta-
on the context. A more
release.”
tion of the
is that
Guidelines
policy state-
The
Guidelines
finement,
probation,
as a condition of
is not
probation4
addressing
ments
revocation of
“imprisonment”
meaning
within the
provide: “Upon
pro-
explicitly
revocation of
therefore,
and,
Guidelines
should not be
(toward
bation,
given
any
no credit shall be
against
credited
either the sentence
imprisonment imposed)
any
sentence of
probation
on revocation of
or the maximum
prior
portion
probation
of the term of
guideline term.
7B1.5(a) (policy
to revocation.” See id.
statement).
that,
Eighth
in accor-
This result
is in accord with the
Horek concedes
Iversen,
section, may
v.
with this
he
not receive Circuit’s decision United States
dance
only
reply
additionally
reply
appeal
argues in his
brief
on
in his
brief and because
3. Horek
that,
this Court find the district court’s
any
“should
evidence that he
Horek has not offered
legal,
sentence to be
... he did not elect deten-
probation
would have declined
if he had received
i.e.,
halfway
intelligently,
in a
house
tion
confine-
notice that
time served
house,
comprehension
that timé in
count
his maximum
ment would not
yield
prison,
advantage
unlike time in
would
no
term,
argu-
we do not address the merits of this
potential
subsequent
sentence for a
toward
ment.
parole violation." Horek contends that he was
process
denied due
because he failed to receive
Chapter
7
notice that time
confinement
addresses revocation of
served toward his
would not be considered time
release,
argu-
policy
maximum term. While Horek made this
than
contains
statements rather
court,
hearing
ment at his
before the district
guidelines.'
actual
This court has held that the
opening
appeal.
it in
brief on
did not include
Chapter
policy
"advisory
are
7
statements
normally
arguments
This court will not
consider
mandatory
than
in nature.” United States
appeal
reply
on
the first time in a
brief.
raised
Hurst,
(10th Cir.1996) (internal
78 F.3d
Murray,
See United States v.
363 n. 3
omitted).
quotations
(10th Cir.1996).
raised this
Because Horek
issue
Like
id at *1
The
originally
F.3d 1340
n. 1.
defendant was
appealed
legality
years probation,
defendant in Iversen
three
sentenced to
with a
imposed upon
ninety days
revocation of
condition requiring
her
home deten-
id,,
Iversen,
Upon
See id. at 1345.
tion. See
at *1.
originally
probation,
defendant was
the defen-
resenteneed
years probation
with a condition that she
dant to four months
followed
years supervised
months in
two
three
home
release. See id
sentence,
Subsequently,
challenged
The
argu-
at 1341.
her
defendant
ing
length
maximum
sentence,
revoked and she received the
sen-
that “the
new
offense,
underlying
already spent
tence for her
six months
combined with the time he had
years supervised
impermissibly
and three
re-
on
exceeded the
lease. See
in Iversen maximum
when
defendant
sentence available
he was
appealed
arguing
initially
Relying
Id.
sentenced.”
7B1.5(a)
statement),
already
she had
(policy
served three
home
this court not-
detention,
revoked,
of-
ed that
“[w]hen
legally
ment
permitted
give
she could
receive was
district court is not
three
rejecting
id. at
months. See
1345. In
for time
credit
argument,
Eighth
length
in calculating
defendant’s
Circuit ex-
of the new sentence
plicitly
imposed.”
fact that
at *4.
“[t]he
[the
held
defen-
The court therefore
upheld
dant] had
served three months home
the defendant’s sentence because
*5
detention as
condition of
did not
the time
on probation
“[w]hen
[was]
disregarded,
limit the maximum
available
sentence
to the
sentence
[the defendant’s]
[was]
sentencing
district court in
well
[the
within the
limits.” Id.
defendant]
authorized
If
probation.”
disregards
of her
after revocation
this court
the time Horek has
previously spent
probation,
including the
Similarly,
unpublished
an
decision refer-
confinement as a
Vogt,
enced
v.
United States
No.
probation,
condition of that
his new sentence
(10th
96-1192,
Cir.1997),
we, very opinion, posited of our at the outset arising “in the context of that case as
punishment for a misdemeanor when the sentencing guide-
state law and the federal differently.” Al-
lines treat home detention detention,”
though Thomas involved “home completed in
the four months which Horek “halfway
“community confinement” at a
house” under the rationale of Thomas consti- guidelines to
tutes under the that, upon subsequent
the end only be Horek could term of six months
to maximum
ment, where, here, as the maximum sentence *6 guidelines
under the statutes and underlying Ten
for the crime is ten months. equals six
months minus case,
months. the instant
court, upon revocation of Horek’s
sentenced him to for nine
months, which, under the rationale of Thom- “illegal”
as is an three months.
Accordingly, I would reverse and remand resentencing to no more than six months
imprisonment, and credit Horek with the
time he has served in the federal City, Ar-
correctional institution Forest
kansas.