by David Kim

Sitting en banc, the United States Court of Appeals for the Tenth Circuit held that, after probation revocation, Chapter 7 of the U.S. Sentencing Guidelines provides the initial advisory range under 18 U.S.C. § 3553(a)(4)(B). The Court abrogated United States v. Moore (“Moore I”), 30 F.4th 1021 (10th Cir. 2022), and its two-step framework requiring separate Chapter 5 and Chapter 7 sentences. Chapter 5 should instead inform whether the other § 3553(a) factors warrant a variance. Because the U.S. District Court for the District of Colorado began with Chapter 5, the Court reversed the defendant’s 36-month sentence and remanded for resentencing.

Background

Malachi Moon Seals entered guilty pleas to 12 counts arising from threats directed at members of Congress and members of their families, i.e., six violations of 18 U.S.C. § 115(a)(1) and six violations of 18 U.S.C. § 875(c) based on interstate transmission of the threats. The presentence report assigned offense level 20 and criminal-history category I, producing a 33-to-41-month Chapter 5 range. Probation was unavailable under the Guidelines at that range, but Moon Seals, the Government, and the probation office requested a variance. The Government cited his rehabilitative progress. The District Court imposed five years’ probation and prohibited further threats as a special condition.

Several days later, Moon Seals sent a threat to a former federal official and admitted the violation. At the revocation hearing, Moon Seals relied on Chapter 7’s three-to-nine-month range, while the Government requested 33 to 41 months under Chapter 5. Believing either range was available, the District Court chose Chapter 5 and imposed 36 months’ imprisonment.

Moon Seals preserved his argument that Moore I was wrongly decided. After his sentence was affirmed, the Tenth Circuit granted rehearing en banc to determine whether post-revocation resentencing requires a Chapter 5 sentence for the original offense and a separate Chapter 7 sentence for the probation violation.

Analysis

The Court began its analysis by reviewing the federal probation and revocation scheme. Probation constitutes an independent sentence in place of incarceration and remains revocable until it ends. Following a violation, 18 U.S.C. § 3565(a) permits the District Court to continue probation, with or without changes, or revoke it and “resentence the defendant under subchapter A.” Subchapter A includes 18 U.S.C. § 3553(a), which requires consideration of its applicable factors at resentencing.

Section 3553(a)(4) identifies the Guidelines provisions a court must consider. Subparagraph A directs ordinary sentencing to Chapter 5, while subparagraph B directs courts, “in the case of a violation of probation or supervised release,” to the applicable Chapter 7 guidelines or policy statements. 18 U.S.C. § 3553(a)(4)(A), (B). The Court rejected the contention that “resentence” necessarily means imposing another punishment for the original offense. It describes replacement of the revoked probationary sentence, not a requirement that the new sentence address the conduct underlying the first sentence.

The Court next addressed whether both subparagraphs apply. The word “or” presents alternatives, and subparagraph B’s specific treatment of probation violations displaces subparagraph A’s general direction, the Court reasoned. Congress’ 1994 amendment reinforced that interpretation. The former wording restricted the court to options available at the initial hearing. The amended provision eliminated that constraint. The Court explained that the legislative materials invoked in defense of Moore I likewise described Chapter 7, not the initial-sentencing Guidelines, as governing revocation decisions.

United States v. Kelley, 359 F.3d 1302 (10th Cir. 2004), also interpreted § 3553(a)(4)’s disjunctive language to make Chapter 7 controlling after supervised-release revocation. Although probation and supervised release are revoked under different statutes, both statutes make § 3553(a)(4) relevant, the Court explained.

The Court found no sister circuit that mandates Moore I’s sequence. The Eighth Circuit requires attention to Chapter 7 and permits consultation of both chapters. See, e.g., United States v. Tschebaum, 306 F.3d 540 (8th Cir. 2002); United States v. Michael, 12 F.4th 858 (8th Cir. 2021). The Eleventh Circuit has upheld reliance on Chapter 7 alone. See, e.g., United States v. Cook, 291 F.3d 1297 (11th Cir. 2002). In United States v. Olabanji, 268 F.3d 636 (9th Cir. 2001), the Ninth Circuit required consideration of Chapter 5 after rejecting Chapter 7, but it identified § 3553(a)(4)(B) as governing and relied on a provision later severed by United States v. Booker, 543 U.S. 220 (2005).

Chapter 7 Starting Point
and Application

The Court replaced Moore I with a one-step framework, instructing that Chapter 7 provides the initial range under § 3553(a)(4)(B), and § 3553(a)(4)(A) does not apply. A District Court may vary upward under the remaining § 3553(a) factors and should examine Chapter 5’s range when deciding whether to do so, particularly under § 3553(a)(1), (2), and (6). Those provisions address the offense and the defendant’s history and characteristics, sentencing purposes, and disparities. Chapter 7 focuses primarily on breach of trust while giving limited weight to the violating conduct and criminal history. See U.S. Sentencing Guidelines Manual ch. 7, pt. A, introductory cmt. 3(b) (U.S. Sentencing Commission 2021). The original offense and Chapter 5 range remain relevant. The Court stated that the ultimate sentence must be “no greater than necessary” to achieve § 3553(a)’s purposes, and § 3553(c) requires an explanation for an upward variance.

The Court rejected the concern that this framework grants probation violators an unjustified benefit because the variance analysis permits consideration of the original offense and range. It also rejected the claim that appellate review would be impaired. Sentences based on either chapter receive the same reasonableness review, and the required explanation permits review of any variance, the Court reasoned. See United States v. Steele, 603 F.3d 803 (10th Cir. 2010); see also United States v. Contreras-Martinez, 409 F.3d 1236 (10th Cir. 2005).

The District Court stated that it “could use either” range and expressly rejected Chapter 7. Because Chapter 7 had to provide the initial benchmark, the Court concluded that the District Court used the wrong procedure.

Conclusion

Accordingly, the Court reversed Moon Seals’s 36-month sentence and remanded for resentencing under the Chapter 7-first framework. See: United States v. Seals, 2026 U.S. App. LEXIS (10th Cir. 2026) (en banc).  

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