At page 1318 Revocation of supervised release and sentencing factors21 citing casesrequiring sentencing court to consider, inter alia, the § 3553(a) factors and the sentencing range before revoking supervised release and imposing a prison term
- Gonzalez v. United States, No. 8:19-cv-01033 (M.D. Fla. Sept. 23, 2022).“While the district court is required to consider the policy statements, it is not bound by them.” 443 F.3d at 799 . “[U]pon determining that a defendant violated a condition of supervised release, the district court may revoke the term of…
- United States v. Fakeria Shazay Phillips, No. 20-10455 (11th Cir. Feb. 16, 2021).unpublishedSee U.S.S.G. § 7B1.4(a); United States v. White, 416 F.3d 1313, 1318 (11th Cir. 2005) (per curiam).
- United States v. J.L Menefee, II, 607 F. App'x 859 (11th Cir. 2015).unpublished “A reasonable probability of a different result means a probability sufficient to undermine confidence in the outcome.” Id. (internal quotation marks omitted). “[U]pon finding that a defendant violated a condition of supervised release, a…
- United States v. Ulises Prieto, 517 F. App'x 726 (11th Cir. 2013).unpublished“One of the factors a court must consider in sentencing following revocation is ‘the kinds of sentence and the sentencing range established for — in the case of a violation of probation or supervised release, the applicable guidelines or p…
- United States v. Kelvin Tremayne White, 463 F. App'x 826 (11th Cir. 2012).unpublished(requiring sentencing court to consider, inter alia, the § 3553(a) factors and the sentencing range before revoking supervised release and imposing a prison term)
- United States v. Travis Wayne Backus, 298 F. App'x 810 (11th Cir. 2008).unpublished(district court must consider sentencing range established by the guidelines when imposing term of imprisonment after revocation of supervised release)
- United States v. Alphonso Watts, 269 F. App'x 912 (11th Cir. 2008).unpublishedUnited States v. White, 416 F.3d 1313, 1318 (11th Cir.2005).
- United States v. Gregory A. Baxter, 239 F. App'x 559 (11th Cir. 2007).unpublished“One of the factors a court must consider ... is ... the sentencing range established [by] ... the applicable guidelines or policy statements issued by the Sentencing Commission.” United States v. White, 416 F.3d 1313, 1318 (11th Cir.2005)…
- United States v. Nekyle Chaney, 238 F. App'x 531 (11th Cir. 2007).unpublished In addition, “[t]he Supreme Court explained pre-Booker that, while certain Fifth Amendment due process protections apply in revocation proceedings, the Sixth Amendment right to a jury trial is not *533 applicable.” United States v. White,…
- State of Tennessee v. Mohamed Medhet Karim, No. M2006-00619-CCA-R3-CD (Tenn. Crim. App. May 16, 2007).published(facts admitted at sentencing hearing)
Show 11 more citing cases
- United States v. John Mark Polke, 224 F. App'x 945 (11th Cir. 2007).unpublishedWhen a court decides to revoke supervised release under 18 U.S.C. § 3583 (e), the court must consider the sentencing factors under section 3553(a), United States v. White, 416 F.3d 1313, 1318 (11th Cir.2005), but “ ‘when revocation of supe…
- United States v. Mark Anthony Campbell, 473 F.3d 1345 (11th Cir. 2007).published In United States v. White, 416 F.3d 1313, 1318 (11th Cir.2005), this court stated that upon determining that a defendant violated a condition of supervised release, the district court may revoke the term of supervision and impose a term of…
- United States v. Frank Wesley, 200 F. App'x 892 (11th Cir. 2006).unpublishedUnited States v. White, 416 F.3d 1313, 1318 (11th Cir.2005) (per curiam).
- United States v. Robert L. Perkins, 184 F. App'x 938 (11th Cir. 2006).unpublished(concluding that no constitutional error occurred when defendant admitted violating terms of his supervised release)
- United States v. Maria Lamelas-Linares, 181 F. App'x 788 (11th Cir. 2006).unpublishedPre-Booker, the Supreme Court explained that the Sixth Amendment is not applicable in revocation proceedings, and concluded that violations “need not be criminal and need only be found by a judge under a preponderance of the evidence stand…
- United States v. Alvin G. Keel, 164 F. App'x 958 (11th Cir. 2006).unpublishedUnited States v. White, 416 F.3d 1313, 1318 (11th Cir.2005); United States v. Work, 409 F.3d 484, 492 (1st Cir.2005).
- United States v. Kenneth Richard Carpenter, 165 F. App'x 731 (11th Cir. 2006).unpublished United States v. White, 416 F.3d 1313, 1318 (11th Cir.2005).
- United States v. Gerald Lackey, 155 F. App'x 482 (11th Cir. 2005).unpublishedA district court, after considering the factors set forth in 18 U.S.C. § 3553 (a), may revoke supervised release and resentence a defendant. 18 U.S.C. § 3583 (e)(3); United States v. White, 416 F.3d 1313, 1318 (11th Cir.2005).
- United States v. Gregory Alphonso Finney, 154 F. App'x 865 (11th Cir. 2005).unpublished United States v. White, 416 F.3d 1313, 1318 (11th Cir.2005).
- United States v. Tyrone Dunkley, No. 19-10900 (11th Cir. Apr. 28, 2020).unpublishedAfter satisfying this requirement, the district court may impose a more severe or more lenient sentence, “but the requirement of consultation itself is inescapable.” Id. at 1179 ; see also United States v. White, 416 F.3d 1313, 1318 (11th…
- United States v. Laura Ellen Lee, 221 F. App'x 858 (11th Cir. 2007).unpublished(recognizing that even pre-Booker the Chapter Seven revocation guidelines were advisory)
At page 1316 Challenging sentencing and supervised release revocation procedures18 citing cases“a defendant may not challenge, for the first time on appeal from the revocation of supervised release, his sentence for the underlying offense.”
- United States v. Burl L. Bargeron, No. 23-11100 (11th Cir. Aug. 28, 2024).unpublished ([A] defendant may not challenge, for the first time on appeal from the revocation of supervised release, his sentence for the underlying offense.)
- Ladaris Lemmon Jackson v. United States, No. 2:23-cv-00680 (M.D. Ala. Oct. 16, 2025).Cf. United States v. Nicolas, 490 F. App’x 300, 303 (11th Cir. 2012) (per curiam) (“[A] defendant, facing re- incarceration upon the revocation of supervised release, may not sidestep Section 2255 and challenge the validity of his original…
- United States v. Christopher Shawn Walton, 819 F. App'x 731 (11th Cir. 2020).unpublishedAs such, “a defendant may not challenge, for the first time on appeal from the revocation of supervised release, his sentence for the underlying offense.” United States v. White, 416 F.3d 1313, 1316 (11th Cir. 2005) (citing Almand, 992 F.2…
- United States v. Johnson, 570 F. App'x 611 (7th Cir. 2014).unpublished Indeed, we have made clear that challenges to the underlying sentence cannot be raised in a revocation proceeding: “The proper method for challenging a conviction and sentence is through direct appeal or collateral review, not a supervised…
- United States v. Steven Howard, 537 F. App'x 889 (11th Cir. 2013).unpublished I “[A] defendant may not challenge, for the first time on appeal from the revocation of supervised release, his sentence for the underlying offense.” United States v. White, 416 F.3d 1313, 1316 (11th Cir.2005).
- United States v. Ruben Lee Russell El-Amin, 343 F. App'x 488 (11th Cir. 2009).unpublishedHowever, El-Amin does not identify the source of the district court’s authority to do so, and it is well-established under our case law that a supervised release revocation proceeding is not the proper forum in which to attack the underlyi…
- United States v. Cordova, 461 F.3d 1184 (10th Cir. 2006).publishedUnited States v. Hinson, 429 F.3d 114, 116 (5th Cir.2005); United States v. White, 416 F.3d 1313, 1316 (11th Cir.2005); see also Johnson v. United States, 529 U.S. 694, 700 , 120 S.Ct. 1795 , 146 L.Ed.2d 727 (2000) (stating that supervised…
- United States v. Marino Rodallega Arboleda, 180 F. App'x 64 (11th Cir. 2006).unpublishedUnited States v. White, 416 F.3d 1313, 1316 (11th Cir.2005) (per curiam).
- United States v. Lorenzo Cordova Illuviano, 154 F. App'x 873 (11th Cir. 2005).unpublishedAs we have said, “a defendant may not challenge, *875 for the first time on appeal from the revocation of supervised release, his sentence for the underlying offense.” United States v. White, 416 F.3d 1313, 1316 (11th Cir.2005).
- United States v. Gustav Walter Kloszewski, 147 F. App'x 961 (11th Cir. 2005).unpublishedTo the extent Kloszewski is attempting to challenge his original sentence based on Booker , “a defendant may not challenge, for the first time on appeal from the revocation of supervised release, his sentence for the underlying offense.” U…
Show 7 more citing cases
- United States v. Joseph Harden, No. 19-14459 (11th Cir. Aug. 14, 2020).unpublished See United States v. White, 416 F.3d 1313, 1316 (11th Cir. 2005).
- United States v. Julio Ramirez-Ramirez, 594 F. App'x 590 (11th Cir. 2015).unpublished([A] defendant may not challenge, for the first time on appeal from the revocation of supervised release, his sentence for the underlying offense.)
- United States v. Tobias A. Thomas, 518 F. App'x 610 (11th Cir. 2013).unpublished See United States v. White, 416 F.3d 1313, 1316 (11th Cir.2005). 1 We find no error as to the first two findings of fact.
- United States v. Cesar Nicolas, 490 F. App'x 300 (11th Cir. 2012).unpublished See White, 416 F.3d at 1316 .
- United States v. Thoms, 150 F. App'x 239 (4th Cir. 2005).unpublishedSee United States v. White, 416 F.3d 1313, 1316 (11th Cir.2005).
- United States v. Jason Lamar Chisolm, 559 F. App'x 800 (11th Cir. 2014).unpublished(holding that a prisoner may not challenge his underlying sentence, “for the first time on appeal from the revocation of supervised release,” and instead must bring a motion to vacate under 28 U.S.C. § 2255)
- United States v. David Henry Wysocki, II, 463 F. App'x 814 (11th Cir. 2012).unpublished(holding that a prisoner may not challenge, “for the first time on appeal from the revocation of supervised release,” his underlying sentence and instead must bring a Section 2255 motion to vacate)
At page 1319 Determining plain error when issue is unresolved7 citing casesAn error cannot meet the ‘plain’ requirement of the plain error rule if it is not clear under current law.” (internal quotation omitted)
- United States v. Amil Gonzalez-Rodriguez, 301 F. App'x 874 (11th Cir. 2008).unpublishedThere can be no plain error “where neither the Supreme Court nor [our] Court has ever resolved an issue, and other circuits are split.” United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir.2000) (quoted in United States v. White, 416…
- United States v. Omar Silva-Nava, 243 F. App'x 589 (11th Cir. 2007).unpublishedUnited States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005). “[A]n error cannot meet the ‘plain’ requirement of the plain error rule if it is not ‘clear under current law.’ ” United States v. White, 416 F.3d 1313, 1319 (11th Cir.2005)…
- United States v. Jose Jorge Anaya Castro, 455 F.3d 1249 (11th Cir. 2006).published“As we have repeatedly recognized, an error cannot meet the ‘plain’ requirement of the plain error rule if it is not clear under current law.” United States v. Chau, 426 F.3d 1318, 1322 (11th Cir.2005) (internal quotations omitted) (quotin…
- United States v. Jasper Moore, 174 F. App'x 540 (11th Cir. 2006).unpublished“An appellate court may not correct an error the defendant failed to raise in the district court unless there is: ‘(1) error, (2) that is plain, and (3) that affects substantial rights.’ ” Id. (quotation omitted). “ ‘If all three condition…
- United States v. Gregory Alphonso Finney, 154 F. App'x 865 (11th Cir. 2005).unpublished United States v. White, 416 F.3d 1313, 1318 (11th Cir.2005).
- United States v. Quan Chau, 426 F.3d 1318 (11th Cir. 2005).publishedAs we have repeatedly recognized, “[a]n error cannot meet the ‘plain’ requirement of the plain error rule if it is not ‘clear under current law.’ ” United States v. White, 416 F.3d 1313, 1319 (11th Cir.2005) (quoting United States v. Aguil…
- United States v. Evaristo Yanez-Corbo, 237 F. App'x 611 (11th Cir. 2007).unpublished(An error cannot meet the ‘plain’ requirement of the plain error rule if it is not clear under current law.” (internal quotation omitted))
At page 1314 Challenging original sentence on appeal from revocation2 citing cases
- United States v. Venester Fayne, 163 F. App'x 785 (11th Cir. 2005).unpublished She asserts that the district court lacked authority to sentence her to additional imprisonment — after she had served the statutory maximum sentences for the conspiracy and credit card fraud convictions— *788 without affording her a jury…
- United States v. Gustav Walter Kloszewski, 147 F. App'x 961 (11th Cir. 2005).unpublishedTo the extent Kloszewski is attempting to challenge his original sentence based on Booker , “a defendant may not challenge, for the first time on appeal from the revocation of supervised release, his sentence for the underlying offense.” U…
At page 1317 Appellate court review of unraised Sixth Amendment errors2 citing cases“Resolving the constitutional question left open in Blakely, the Court held that the mandatory nature of the federal guidelines rendered them incompatible with the Sixth Amendment’s guarantee to the right to a jury trial.”
- United States v. Ray Lacount Allen, Jr., 188 F. App'x 948 (11th Cir. 2006).unpublished United States v. White, 416 F.3d 1313, 1317 (11th Cir.2005).
v.
Mark Keith WHITE, Defendant-Appellant
Mark Keith White appeals his sentence of 12 months’ imprisonment and 2 years’ supervised release, which the district court imposed after determining that White had violated the terms of his original supervised release. White argues on appeal that this sentence violated his rights in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). For the reasons set forth more fully below, we affirm White’s sentence.
A federal grand jury returned an indictment, charging White and other codefen-dants with conspiracy to commit theft of goods in interstate commerce, in violation of 18 U.S.C. §§ 371, 659 (“Count 1”); and theft of goods in interstate commerce, in violation of 18 U.S.C. §§ 2, 659 (“Count 2”). Following trial, a jury convicted White of both of these' offenses. In November 1999, the district court sentenced White to 37 months’ imprisonment and 3 years’ supervised release, with conditions of release including that he refrain from committing further criminal offenses and not illegally possess a controlled substance. On direct appeal, White only challenged the sufficiency of the evidence, some of the court’s evidentiary rulings, and the court’s denial of his request for an adjustment in his guideline offense level for his minor role in the offense. We affirmed White’s convictions and sentence.
In April 2001, White’s three-year term of supervised release commenced. In March 2004, the government charged White with violating a term of his supervised release by being arrested for committing the state offenses of (1) possession with intent to sell cocaine, and (2) selling cocaine within 1,000 feet of a convenience store. In April 2004, at White’s preliminary hearing on these violations, he admitted to possessing drugs, without conceding that he intended to sell the drugs. Absent any objections, the court accepted White’s admission and found him guilty of violating his supervised release.
On June 25, 2004, at sentencing on these violatiohs, the probation officer proffered that White’s state arrest had involved the sale of $1,000 worth of cocaine base to a confidential informant, which was a Grade A violation, with a resulting recommended guideline range of 15 to 21 months’ imprisonment, pursuant to U.S.S.G. § 7B1.4(a) [1] White again admitted to violating a condi[*1316] tion of his supervised release, but he argued that his admission to possessing the drugs only supported a finding that he committed a Gradé B violation and, thus, had a § 7B1.4(a) recommended guideline range of only 6 to 12 months’ imprisonment. '
Agreeing with White that the offense was a Grade B violation, the court explicitly discussed the factors that it had considered, pursuant to 18 U.S.C. § 3553©, in determining what sentence to impose. In doing so, the court acknowledged that the probation officer had stated that White had stable employment, and that there was no evidence that White was using drugs. On the other hand, the court noted that the offenses forming the basis for his new arrest were serious, and that White had a “history of involvement with drugs.” The court also stated that “Mr. White needs to understand that he simply cannot have involvement with drugs. Drugs, I think, are what are a problem to him.” The court ultimately revoked White’s term of supervised release and sentenced him, without objection, to 12 months’ incarceration, to be followed by 24 months’ supervised release.
In a brief White filed prior to the Supreme Court issuing its decision in Booker, he argues for the first time that the district court violated his rights under the Fifth and Sixth Amendments to the United States Constitution, in light of the Supreme Court’s decision in Blakely, by sentencing him to additional terms of imprisonment and supervised release after determining that he violated a term of his supervised release. White specifically contends that, assuming the Supreme Court held that Blakely was applicable to the federal guidelines, the law governing the imposition and revocation of supervised release, which was part of the “package” of sentencing reforms enacted in 1984, also is unconstitutional. White, thus, argues that (1) his original term of supervised release was unconstitutionally imposed and could not support the violation at issue in this case, and (2) the court’s ultimate sentence following revocation of supervised release was unconstitutional.
As a preliminary matter, to the extent White is attempting to challenge the district court’s original imposition of three years’ supervised release, a defendant may not challenge, for the first time on appeal from the revocation of supervised release, his sentence for the underlying offense. United States v. Almand, 992 F.2d 316, 317-18 (11th Cir.1993). We explained in Almand that “[a] sentence is presumed valid until vacated under [28 U.S.C. § 2255].” Id. at 317. We also have determined that the Supreme Court’s decisions in Blakely and Booker are not retroactively applicable to cases on collateral review. Varela v. United States, 400 F.3d 864, 867-68 (11th Cir.2005). The scope of our review, therefore, is limited to White’s challenge of the court’s sentence following the revocation of his supervised release.
Because White did not raise his Blakely/Booker objections in the district court, we review them only for plain error. See United States v. Rodriguez, 398 F.3d 1291, 1297-98 (11th Cir.) (reviewing a newly raised Blakely/Booker challenge to the federal guidelines for plain error), cert. denied, — U.S. —, 125 S.Ct. 2935, 162[*1317] L.Ed. 866 (2005). [2] “An appellate court may not correct an error the defendant failed to raise in the district court unless there is: ‘(1) error, (2) that is plain, and (3) that affects substantial' rights.’” Id. (quoting United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002)). “ ‘If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.’ ” Id. (quoting Cotton, 535 U.S. at 631, 122 S.Ct. at 1785).
In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, arid proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. at 2362-63. Before White’s sentencing hearing, the Supreme Court revisited that rule in Blakely, in the context of Washington state’s sentencing guideline scheme, and clarified that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant .... In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Blakely, 124 S.Ct. at 2537 (emphasis in original).
Applying these principles, the Supreme Court held that Blakely’s sentence — which was enhanced under the state guidelines based on the sentencing court’s additional finding by a preponderance of the evidence that Blakely committed his kidnaping offense with deliberate cruelty — violated the Sixth Amendment. Id. at 2534-38. In a footnote, however, the Court explicitly remarked that “[t]he Federal Guidelines are not before us, and we express no opinion on them.” Id. at 2538 n. 9.
While the instant case was pending on appeal, the Supreme Court issued its decision in Booker, finding “no distinction of constitutional significance between the Federal Sentencing Guidelines and the Washington procedures at issue”, in Blakely. Booker, 125 S.Ct. at 749. Resolving the constitutional question left open in Blakely, the Court held that the mandatory nature of the federal guidelines rendered them incompatible with the Sixth Amendment’s guarantee to the right to a jury trial. Id. at 749-51. Thus, the Supreme Court determined in Booker “that the Sixth Amendment right to trial by jury is violated where under a • mandatory guidelines system a sentence is increased because of an enhancement based on facts found by the judge that were neither admitted by the defendant nor found by the jury.” Rodriguez, 398 F.3d at 1298 (citing Booker, 125 S.Ct. at 749-56) (emphasis in original).
Post -Booker, ■ we have distinguished between two types of errors under Booker: (1) Sixth Amendment, or constitutional, error based upon sentencing enhancements in a mandatory guidelines system when the enhancements neither are admitted by the defendant, nor submitted to a jury and proven beyond a reasonable doubt; and (2) statutory error based upon sentencing un[*1318] der a mandatory guideline system. United States v. Shelton, 400 F.3d 1325, 1329-30 (11th Cir.2005). The Supreme Court explained pre-Booker that, while certain Fifth Amendment due process protections apply in revocation proceedings, the Sixth Amendment right to a jury trial is not applicable. See Johnson v. United States, 529 U.S. 694, 700, 120 S.Ct. 1795, 1800, 146 L.Ed.2d 727 (2000) (holding that conduct giving rise to a supervised release violation “need not be criminal and need only be found by a judge under a preponderance of the evidence standard”). However, neither the Supreme Court nor this Court has addressed in a published opinion whether Booker applies to a sentence imposed after the revocation of supervised release.
Regardless, even if we were to decide that Booker was applicable, we have determined that there is no Sixth Amendment error under Booker where the defendant has admitted to facts later used by the district court to enhance his sentence. Shelton, 400 F.3d at 1330. Because White admitted during his preliminary hearing and at sentencing that he violated a term of his supervised release by possessing drugs, which is a Grade B violation, there was no Sixth Amendment error under Booker.
In determining whether the court committed a statutory Booker error, upon finding that a defendant violated a condition of supervised release, a district court, after considering factors set forth in § 3553(a), may, among other options, revoke a term of supervised release and require the defendant to serve in prison all or part of the term of supervised release. 18 U.S.C. § 3583(e)(3). One of the factors a court must consider in sentencing following revocation is “the kinds of sentence and the sentencing range established for— in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission ....” 18 U.S.C. § 3553(a)(4)(B). Moreover, one of the policy statements in Chapter 7 of the federal guidelines — the section that governs violations of supervised release — provides recommended ranges of imprisonment applicable upon revocation. See generally U.S.S.G. § 7B1.4(a).
However, “[t]he Sentencing Commission has not yet promulgated any binding probation revocation guidelines; instead, the Sentencing Commission has opted for the flexibility of advisory policy statements, which are nonbinding on the courts.” United States v. Cook, 291 F.3d 1297, 1301 (11th Cir.2002). [3] A review of the sentencing transcript also does not reveal that the district court believed that White’s guideline range of 6 to 12 months’ imprisonment was mandatory as opposed to advisory. Accordingly, White’s sentence was not increased under a mandatory guideline system, and no statutory Booker error occurred. See Rodriguez, 398 F.3d at 1298; cf. Shelton, 400 F.3d at 1330-31 (holding that the district court plainly erred when it sentenced defendant under a mandatory guidelines scheme and the defendant established that this error affected his substantial rights). [4]
[*1319] Furthermore, an error cannot meet the “plain” requirement of the plain error rule if it is not “clear under current law.” United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir.2000) (quotation omitted). “[W]here neither the Supreme Court nor this Court has ever resolved an issue, and other circuits are split on it, there can be no plain error in regard to that issue.” Id.; see also United States v. Gerrow, 232 F.3d 831, 835 (11th Cir.2000) (concluding that, we need not determine under plain-error review, in the absence of precedent from the Supreme Court or this Court, whether 18 U.S.C. § 3583(b)((2) provided the maximum term of supervised release for a defendant sentenced under 21 U.S.C. § 841(b)(1)©)). Thus, even if we were to conclude that error occurred, neither the Supreme Court nor this Court has determined whether Booker was applicable to a defendant’s sentence following a revocation of supervised release, and any error was not “plain.” See Aguillard, 217 F.3d at 1321.
Accordingly, we conclude that the district court did not plainly err in sentencing White upon .revocation of his supervised release. We, therefore, affirm.
AFFIRMED.
. The criminal history category to be used in determining the applicable advisory guideline range of imprisonment in U.S.S.G. § 7B 1.4(a) is the category determined at the time the defendant originally was sentenced to the term of supervision. See U.S.S.G. § 7B1.4,[*1316] comment, (n.l). White's presentence investigation report from his original sentencing hearing reflects that he fell within criminal history category II.
. The Supreme Court also noted in Booker that the Court “expect[ed] reviewing courts to apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the ‘plain-error’ test.” See Booker, 125 S.Ct. at 769.
. Although Cook involved a revocation of probation, the statute governing the imposition of a sentence upon revocation and the Chapter 7 policy statement are the same for probation and supervised release. See 18 U.S.C. § 3553(a)(4)(B); U.S.S.G. § 7B1.4(a); see also U.S.S.G., Chapter 7, Part B, Introductory Commentary (providing that violations of probation and supervised release are treated as functionally equivalent).
. As persuasive authority, the Second Circuit in United States v. Fleming, 397 F.3d 95 (2d Cir.2005), distinguished a similar Blake [*1319] ly/Boolcer challenge to a sentence following the revocation of supervised release from a Blakely/Booker challenge to a sentence following conviction, because the sentencing court in Fleming was operating under a sentencing regime that, even before Booker, was advisory with respect to revocation of supervised release. See id. at 101.