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UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 93-1478
_____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
COLUMBUS GIDDINGS,
Defendant-Appellant.
______________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
______________________________________________________
(October 28, 1994)
Before POLITZ, Chief Judge, GOLDBERG and DUHÉ, Circuit Judges.
DUHÉ, Circuit Judge:
Appellant, Columbus Giddings, appeals the district court's
sentence imposed upon revocation of supervised release. Finding
Appellant's sentence neither imposed in violation of law nor
plainly unreasonable, we affirm.
I. BACKGROUND
In 1991, Appellant plead guilty to two counts, possession of
a firearm in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. §
924(a), and possession of heroin in violation of 21 U.S.C. §
844(a). Appellant was sentenced to serve concurrent terms of
imprisonment of 18 and 12 months to be followed by 3 years of
supervised release.
Approximately four months after Appellant began serving his
period of supervised release, the United States moved to revoke

Appellant's supervised release for violation of its conditions.
The motion charged Appellant with 1) possessing and using a
controlled substance on three occasions, 2) failing to appear for
a random urinalysis test and a counseling session, and 3) failing
to successfully complete an in-patient drug treatment program.
Appellant admitted the violations except the failure to appear
for counseling. The district court specifically found that
Appellant had possessed a controlled substance and therefore
concluded that revocation of the Appellant's supervised release was
mandatory under 18 U.S.C. § 3583(g). The district court revoked
Appellant's supervised release.
After consideration of the policy statements of Chapter 7 of
the Sentencing Guidelines and the statutory minimum, the district
court sentenced Appellant to 24 months of imprisonment. Appellant
appeals the sentence on two grounds. First, Appellant contends
that the policy statements in Chapter 7 of the Sentencing
Guidelines are binding on the district court, and therefore that
the imposition of the 24 month sentence constituted an unjustified
upward departure. Next, Appellant asserts that the district court
improperly considered Appellant's need for drug rehabilitation in
arriving at the 24 month sentence.
II. STANDARD OF REVIEW
"We will uphold a sentence unless it 1) was imposed in
violation of law, 2) resulted from an incorrect application of the
guidelines, 3) was outside the guideline range and is unreasonable,
or 4) was imposed for an offense for which there is no applicable
2

sentencing guideline and is plainly unreasonable." United States
v. Headrick, 963 F.2d 777, 779 (5th Cir. 1992) (citing 18 U.S.C. §
3742(e)). Because there is no applicable guideline for sentencing
after revocation of supervised release, we will uphold Appellant's
sentence unless it is in violation of law or is plainly
unreasonable. Id.
III. POLICY STATEMENTS
A. The District Court's Application
Appellant first contends that his sentence was imposed in
violation of law because the district court failed to sentence him
to a term of imprisonment within the applicable range set forth in
the "Revocation Table", U.S.S.G. § 7B1.4, p.s. The "Revocation
Table" recommends a sentence of five to eleven months based on
Appellant's grade of violation and criminal history category.1
However, because the court determined that Appellant possessed a
controlled substance, the court was required, at minimum, to impose
a sentence of one-third of the term of the supervised release. See
18 U.S.C. § 3583(g). Section 3583(g) does not provide a maximum
sentence.
Under the sentencing guidelines, if the minimum term of
imprisonment required by the statute exceeds the maximum term of
imprisonment under § 7B1.4(a), then section 7B1.4(b)(2) provides
that the statutory minimum shall be substituted for the applicable
range. Accordingly, the sentence recommended by the policy
1
The district court found that Appellant had committed a grade
C violation and had a criminal history category of III.
3

statement was one year. To determine the maximum sentence
permitted under § 3583(g), the district court looked to §
3583(e)(3) and determined, by analogy, that the maximum allowable
sentence of imprisonment was 24 months. The district court
concluded, therefore, that the applicable sentencing range was
between 12 and 24 months. Based on its evaluation of the factors
set out in 18 U.S.C. § 3553(a), the court sentenced Appellant to 24
months of imprisonment.
B. Analysis
In United States v. Headrick,2 we held that when a court
sentences a defendant upon revocation of his supervised release
under § 3583(g), the policy statements of Chapter 7 are advisory
only.3 In United States v. Mathena,4 we reaffirmed the holding of
Headrick in the context of sentencing upon revocation of supervised
release under 18 U.S.C. § 3583(e)(3). In Mathena, we explained
that the Supreme Court's recent opinion in Stinson v. United
States,5 did not affect our holding in Headrick.6 Thus, the
2
963 F.2d 777 (5th Cir. 1992).
3
Id. at 782.
4
23 F.3d 87 (5th Cir. 1994).
5
113 S. Ct. 1913 (1993).
6
See United States v. Mathena, 23 F.3d at 93,
In Stinson, the Court drew an analogy between commentary that
interprets or explains a guideline, and an agency's
interpretation of its own legislative rules. Because courts
usually give controlling weight to an agency's interpretation
of its own legislative rules, the Court reasoned the same
treatment should be accorded commentary that explains or
interprets a guideline. The Court's rationale for its holding
4

district court was not bound by the suggested sentencing range set
forth in the policy statements of Chapter 7.
IV. DRUG REHABILITATION
Appellant next contends that even if the district court was
not bound by the Sentencing Guideline policy statements, the term
of imprisonment imposed was in error because the district judge
improperly considered Appellant's need for drug rehabilitation in
determining the sentence.7
A. Sentencing Framework
(regarding
commentary)
and
dictum
(regarding
policy
statements) does not apply here because the statements of
Chapter 7 do not interpret or explain a guideline. As we
stated in Headrick, the policy statements of Chapter 7 "stand
alone, and in a state of nascency."
(citation omitted).
7
At sentencing, the district judge stated,
[C]onsidering the scope of the activity of the defendant
in violation of the terms of supervised release, the court
orders and adjudges the defendant be committed to the custody
of the Bureau of Prisons to serve a term of imprisonment for
2 years.
And, by the way, I might add that I have taken into
account all of the provisions of Title 18, Sections
[3]553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(B), (a)(4), (a)(5)
and (a)(6) in arriving at the appropriate term. All those
factors have been taken into account.
One thing of particular significance to me was the
(a)(2)(D) provision, that one of the factors the court is to
consider is the need for the sentence imposed to provide the
defendant with needed medical care or other direct treatment
in the most effective manner.
And because of the defendant's problem with drugs, I feel
like that two year sentence, not only would benefit society,
but would benefit the defendant in this particular case, in
that treatment would be more readily available with the 2-year
sentence.
5

For purposes of an initial sentencing, 18 U.S.C. § 3553(a)8
sets out the relevant factors to be used by the district court to
8
18 U.S.C. § 3553(a) provides,
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--
(1)
the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2)
the need for the sentence imposed--
(A)
to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B)
to afford adequate deterrence to criminal
conduct;
(C)
to protect the public from further crimes of
the defendant; and
(D)
to
provide
the
defendant
with
needed
educational or vocational training, medical care,
or other correctional treatment in the most
effective manner;
(3)
the kinds of sentences available;
(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) and that are
in effect on the date the defendant is sentenced;
(5)
any pertinent policy statement issued by the
Sentencing Commission pursuant to 28 U.S.C. § 994(a)(2)
that is in effect on the date the defendant is sentenced;
(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 any victims of
the offense.
6

fashion a defendant's sentence. Although the district judge is
required to review the § 3553(a) factors in determining the
sentence, the court has limited discretion in the factors it can
use to determine whether to impose a term of imprisonment.
Typically, a person's need for rehabilitation cannot be used to
determine whether a sentence of imprisonment is imposed.9
In contrast, when initially determining the period of
supervised release, the district court must consider the § 3553(a)
factors, therefore the defendant's need for rehabilitation10 is
necessarily taken into account.11 If supervised release is
subsequently revoked under 18 U.S.C. § 3583(e), the statute also
requires that the § 3553(a) factors be considered. However, when
revocation of supervised release is mandatory under 18 U.S.C. §
3583(g), the statute does not require consideration of the §
3553(a) factors.
The issue before this court is whether a district court may
properly consider a defendant's rehabilitative needs in determining
the length of a sentence of imprisonment upon revocation of
supervised release. The issue is one of first impression for this
9
Title 18, section 3582(a) provides,
The court, in determining whether to impose a term of
imprisonment, and, if a term of imprisonment is to be imposed,
in determining the length of the term, shall consider the
factors set forth in section 3553(a) to the extent that they
are applicable, recognizing that imprisonment is not an
appropriate means of promoting correction and rehabilitation.
10
Rehabilitation is one of the factors contained within 18
U.S.C. § 3553(a)(2)(D).
11
See 18 U.S.C. § 3582(c).
7

circuit. We do not, however, write on an entirely blank slate.
The Second Circuit considered a similar issue in United States v.
Anderson,12 and the majority concluded that an inquiry into the
defendant's rehabilitative needs was permissible.
In Anderson, the Second Circuit was faced with a district
court's revocation of supervised release under 18 U.S.C. § 3583(e).
Under § 3583(e), imprisonment is one of several options that a
district judge may employ to remedy a violation of supervised
release. The court affirmed the district judge's revocation of
supervised release, and upheld the imposition of a 17 month
sentence13 based on the district judge's view that the defendant
required "intensive substance abuse and psychological treatment in
a structured environment."14 The Anderson majority reasoned that
because the defendant's need for rehabilitation or medical care
must be considered in fashioning the initial term of supervised
release, a fortiori these factors may also be considered in
fashioning a sentence upon revocation of supervised release.15
12
15 F.3d 278 (2nd Cir. 1994).
13
The relevant Sentencing Guidelines policy statements
recommended a sentencing range of 6-12 months. Id. at 279.
14
Id.
15
See United States v. Anderson, 15 F.3d at 282,

Far from explicitly contemplating the applicability of 18
U.S.C. § 3582 or 28 U.S.C. § 994, 18 U.S.C. § 3583 appears to
contemplate that the limitations will not apply and that such
factors as the medical and correctional needs of the defendant
may be considered by a district court. Upon revocation a
district court may "require the person to serve in prison all
or part of the term of supervised release without credit for
time previously served on postrelease supervision." Thus, the
8

The issue before this Court arises in a context similar to
that decided by the Second Circuit, but with an important
distinction. While the Second Circuit was presented with a
permissive revocation under 18 U.S.C. § 3583(e), this Court is
faced with a mandatory revocation under 18 U.S.C. § 3583(g). In
the present situation, the district court did not determine whether
revocation and imprisonment were warranted))the decision to revoke
Appellant's supervised release and to impose a period of
imprisonment was dictated by statute. Therefore, we need only
decide whether the district court properly considered Appellant's
rehabilitative needs in arriving at the length of sentence. We
need not, and do not decide whether a district court may properly
consider a defendant's rehabilitative needs in deciding whether, as
an initial matter, imprisonment is warranted.
B. Analysis
As explained above, the Sentencing Guidelines do not provide
statute contemplates that a district court may require a
person to serve time in prison equal to the length of the term
of supervised release. In determining the length of a period
of supervised release, it will be recalled, a district court
may consider such factors and the medical and correctional
needs of the offender. Because those factors may be
considered in determining the length of a period of supervised
release and because a district court may require a person to
serve in prison the period of supervised release, the statute
contemplates that the medical and correctional needs of the
offender will bear on the length of time an offender serves in
prison following revocation of supervised release. We
conclude, therefore, that a court may consider an offender's
medical and correctional needs when requiring that offender to
serve time in prison upon the revocation of supervised
release.
(citations omitted).
9

a binding sentencing range applicable to the revocation of
supervised release. Therefore, the sentencing range is determined
by statute. Title 18, Section 3582(g) of the United States Code
provides a minimum sentence of 12 months))one-third of the initial
period of supervised release))for the instant revocation. Assuming
without deciding that the district court correctly adopted a
maximum sentence of 24 months from 18 U.S.C. § 3582(e)(3), the
district court was faced with a sentencing range of 12 to 24
months.
This court has previously held that rehabilitative factors may
be considered by a district court when determining where to
sentence within a particular guideline range.
[T]he Sentencing Guidelines reject the rehabilitation
model as a valid penological paradigm. The Guidelines
recognize that the principal purpose of sentencing is
punishment, creating sentencing ranges to effect this
purpose. Even so, the Guidelines do not preclude
consideration of a defendant's rehabilitative potential
as a mitigating factor within an applicable range of
punishment. Indeed, the Sentencing Guidelines expressly
permit the district court to consider all relevant and
permissible character traits of the defendant in
assessing a sentence within a particular range.
United States v. Lara-Velasquez, 919 F.2d 946, 956 (5th Cir.
1990)(emphasis in original); see also United States v. Duran, ___
F.3d ___, 1994 WL 544086 (9th Cir. 1994).16 The legislative history
16
The Ninth Circuit stated therein,
Section 3582 distinguishes between the determinations of
whether to impose a term of imprisonment and of the actual
length of the imprisonment. It admonishes the court to
recognize that imprisonment is not an appropriate means of
promoting correction and rehabilitation. Once imprisonment is
chosen as a punishment, however § 3582 does not prohibit
consideration of correction and rehabilitation in determining
10

of the Comprehensive Crime Control Act of 1984 also indicates that
the prohibition against considering rehabilitative needs relates to
the decision of whether to impose imprisonment, not to the length
of the term of imprisonment.17
This rationale is especially compelling in a revocation of
supervised release context. When revoking supervised release the
district judge is not resentencing the defendant. The type and the
term of the sentence has already been determined by the sentencing
the length of imprisonment. In fact, § 3553(a) includes
"correctional treatment" as a factor to be considered in
determining sentence length.
If Congress had intended to prohibit sentencing judges
from considering correction and rehabilitation in setting the
length of the sentence, it could have enacted a statute that
admonished judges to recognize "that imprisonment or the
length of imprisonment is not an appropriate means of
promoting correction and rehabilitation." It did not enact
such a statute in 18 U.S.C. § 3582. We decline to extend the
prohibition in § 3582 to sentence length determinations.
United States v. Duran, 1994 WL at *3-*4 (citations omitted).
17
See S.Rep. No. 225, 98th Cong.,2d Sess. 119 (1983), reprinted
in 1984 U.S.C.C.A.N. 3182, 3302,
Subsection (a) [18 U.S.C. § 3582] specifies, in light of
current knowledge, that the judge should recognize, in
determining whether to impose a term of imprisonment, "that
imprisonment is not an appropriate means of promoting
correction and rehabilitation." This caution concerning the
use of rehabilitation as a factor to be considered in imposing
sentence is to discourage the employment of a term of
imprisonment on the sole ground that a prison has a program
that might be of benefit to the prisoner. This does not mean,
of course, that if a defendant is to be sentenced to
imprisonment for other purposes, the availability of
rehabilitative programs should not be an appropriate
consideration, for example, in recommending a particular
facility.
(emphasis supplied).
11

judge. The supervising district judge is bound by the sentence
previously imposed, and at revocation is merely converting all or
a portion of the supervised release period into a term of
imprisonment. Given the limited discretion available to the
supervising district judge, and the fact that the sentencing range
is fixed by statute, consideration of the § 3553(a) factors may be
appropriate to fashion a sentence conforming to the purpose and
intent of the original sentence, and that is within the boundaries
established by the sentencing judge.
C. Application
In the instant case, the district court was not faced with the
question of whether or not to sentence the Appellant to a term of
imprisonment. Once the district court determined that Appellant
violated his supervised release by possession of a controlled
substance, revocation and imprisonment were mandatory. 18 U.S.C.
§ 3583(g). The sentencing district judge, and the relevant
statutes, established the sentencing range within which the
supervising district judge had to impose sentence.
We now hold that the language of 18 U.S.C. § 3583(g), and the
purposes and intent behind the statute, is best served by
permitting a district judge to consider a defendant's need for
rehabilitation in arriving at a specific sentence of imprisonment
upon revocation of supervised release. While we do not decide
whether rehabilitative needs can be used to determine whether to
impose imprisonment as an initial matter, once imprisonment is
mandated by 18 U.S.C. § 3583(g) rehabilitative needs may be
12

considered to determine the length of incarceration within the
sentencing range.
V. REASONABLENESS OF SENTENCE
We also reject Appellant's contention that a sentence of two
years imprisonment was plainly unreasonable.18 The district court
was required to impose a sentence of at least twelve months
pursuant to § 3583(g). Unlike the permissive revocation provision
of § 3583(e)(3), the mandatory revocation provision of § 3583(g)
does not provide any maximum sentence. Appellant would be subject
to a maximum sentence of 24 months under § 3583(e)(3). It follows
that imposing that same sentence under § 3583(g) cannot be plainly
unreasonable. See United States v. Headrick, 963 F.2d at 782-83.
VI. CONCLUSION
For the foregoing reasons, the sentence imposed by the
district court is AFFIRMED.
18 Because the policy statements of Chapter 7 are advisory only,
a sentence that diverges from them is not a departure such that a
district court has to provide notice or make specific findings
normally associated with departures under § 3553(b). United States
v. Mathena, 23 F.3d at 93 n.13.
13