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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-10836
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TONY McCULLOUGH,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
( February 15, 1995 )
Before POLITZ, Chief Judge, HIGGINBOTHAM and DeMOSS, Circuit
Judges.
POLITZ, Chief Judge:
Tony R. McCullough pleaded guilty to theft of money from a
bank and was sentenced to five years probation, later modified to
three years probation. He violated a condition of his probation,
causing it to be revoked, and McCullough was sentenced to nine
months imprisonment, followed by two years supervised release.
McCullough timely appealed this sentence.
McCullough maintains on appeal that the district court erred
by imposing a term of supervised release following the period of
imprisonment. He contends that a sentence of supervised release is

not available under subchapter A as referred to in 18 U.S.C.
з 3565(a)(2).1
A sentence imposed after revocation of probation is reviewed
de novo and will be upheld unless it is in violation of law or is
plainly unreasonable.2 The government correctly notes that
McCullough did not object timely to the imposition of a term of
supervised release. In the absence of a contemporaneous objection,
we may correct only errors that are clear or obvious under current
law and which affect the defendant's substantial rights.3 If these
requirements are met, the court has the discretion to grant relief
but will do so only when the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.4
The sentencing court herein did not err. When a defendant
violates a condition of probation, 18 U.S.C. з 3565(a)(2) directs
the court to "revoke the sentence of probation and impose any other
sentence that was available under subchapter A at the time of the
118 U.S.C. з 3565 provides in pertinent part:
(a) 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 . . .
(2) revoke the sentence of probation and
impose any other sentence that was available
under subchapter A [18 U.S.C. зз 3551 et seq.]
at the time of the initial sentencing.
2United States v. Mathena, 23 F.3d 87 (5th Cir. 1994).
3United States v. Calverley, 37 F.3d 160 (5th Cir. 1994) (en
banc) (citing United States v. Olano, _____ U.S. _____, 113 S.Ct.
1770, 123 L.Ed.2d 508 (1993)).
4Calverley.
2

initial sentencing." It is abundantly clear that when initially
sentenced the controlling statutes made McCullough subject to
imprisonment and a term of supervised release.
Further, U.S.S.G. з 7B1.3(g)(1) provides that "[w]here
probation is revoked and a term of imprisonment is imposed, the
provisions of sections 5D1.1 - 1.3 shall apply to the imposition of
a term of supervised release." Section 5D1.1(a) in turn provides
that the court "shall order a term of supervised release to follow
imprisonment when a sentence of imprisonment of more than one year
is imposed, or when required by statute." McCullough was sentenced
to a term of imprisonment of nine months; therefore section
5D1.1(a) did not mandate the district court to impose a term of
supervised release. Section 5D1.1(b), however, provides that the
court "may order a term of supervised release to follow
imprisonment in any other case." Under this section the district
court was empowered to impose a term of supervised release. We
therefore hold that the court a` quo did not err in imposing the
challenged term of supervised release following the period of
imprisonment.5
AFFIRMED.
5See also United States v. Hobbs, 981 F.2d 1198, 1199 (11th
Cir.), cert. denied, 114 S.Ct. 103 (1993) ("District courts are
authorized to impose a period of supervised release as a
consequence of probation revocation.").
3