No “Zero‑Month Lock‑In” After Probation Revocation: Tenth Circuit Reaffirms Moore’s Two‑Step Resentencing and Clarifies Plain‑Error Limits

Introduction

In United States v. Moon Seals (10th Cir. Oct. 17, 2025), the Tenth Circuit revisits, applies, and further explains the resentencing procedure that follows revocation of probation, first articulated in United States v. Moore (Moore I), 30 F.4th 1021 (10th Cir. 2022), and reaffirmed as binding in United States v. Moore (Moore II), 96 F.4th 1290 (10th Cir. 2024). The panel (Phillips, J., joined by Murphy and Eid, JJ.) affirms a 36‑month post‑revocation sentence imposed after the district court failed to use Moore I’s two‑step framework. Although that failure was “plain” error, the court holds the appellant did not establish the additional, specific plain error he claimed—namely, that the district court was compelled to impose a zero‑month sentence for the underlying offenses at step one because no “alternative sentence” was announced at the original sentencing.

The opinion thus does three important things. First, it reiterates that Moore I’s two‑step framework is binding in the Tenth Circuit and that disregarding it is plain procedural error. Second, it rejects a defense theory that would “lock in” a zero‑month step‑one sentence whenever the original probation sentence lacked an announced “alternative” prison term. Third, through a separate concurrence by Judge Phillips, the court supplies an extensive account of the 1994 statutory amendments (the “Wilkins‑Thurmond” history) to explain why Congress intended separate, cumulative punishment for the underlying offense (Chapter 5) and the probation violation (Chapter 7).

Summary of the Opinion

Malachi Moon Seals, then 18, pled guilty to twelve felony counts arising out of violent threats to federal officials and their families. Despite an advisory Guidelines range of 33–41 months (Offense Level 20, CHC I), the district court varied downward and imposed five years of probation with stringent conditions. Within weeks, he violated probation with new, graphic threats. The court revoked probation and, without applying the Moore I two‑step procedure, imposed a 36‑month prison term by “stick[ing] to” the original Chapter 5 range and ignoring Chapter 7.

On appeal, everyone agreed the district court erred under Moore I by not conducting the two‑step analysis. The government dropped any invited‑error argument and the court rejected a plea‑agreement waiver defense under United States v. Porter, 905 F.3d 1175 (10th Cir. 2018). But the appellant did not argue prejudice from the general Moore I error. Instead, he advanced a targeted claim: that the district court committed plain error by failing to impose a zero‑month sentence at step one because it had not announced an “alternative sentence” at the original hearing.

The Tenth Circuit rejected that theory. The court held that Moore I contains no “alternative sentence” rule, that a zero‑month lock‑in is inconsistent with the structure and purpose of probation‑revocation sentencing, and that even a hypothetical variance to Zone A would be 0–6 months—not 0 months. Because the appellant failed to demonstrate error (and certainly not plain error) on his zero‑month theory, the court affirmed without reaching prejudice as to that specific claim. A separate concurrence by Judge Murphy would have resolved the case at plain‑error prong three (no prejudice) and underscored that, in practical effect, the district court gave Moon Seals an unwarranted windfall by imposing no Chapter 7 sanction—something the government did not cross‑appeal. Judge Phillips also wrote separately to defend Moore I’s two‑step structure through a detailed review of the 1994 amendments and their legislative history.

Analysis

Precedents Cited and Their Role

United States v. Moore (Moore I), 30 F.4th 1021 (10th Cir. 2022): The cornerstone precedent. Moore I requires a two‑step procedure after probation revocation: (1) “resentence” on the underlying offense under 18 U.S.C. §§ 3553(a)(4)(A), 3565(a)(2) with reference to Chapter 5; and (2) separately sanction the probation violation under 18 U.S.C. § 3553(a)(4)(B) and Chapter 7. It also condemns pre‑committed “sentence‑in‑advance” practices and requires transparent apportionment so appellate courts can review each component for substantive reasonableness.
United States v. Moore (Moore II), 96 F.4th 1290 (10th Cir. 2024): Confirms that Moore I’s two‑step framework is not dicta but binding circuit law.
United States v. Booker, 543 U.S. 220 (2005) and Gall v. United States, 552 U.S. 38 (2007): Establish the advisory nature of the Sentencing Guidelines and the framework for procedural and substantive reasonableness, enabling variances while requiring reasoned sentencing.
United States v. Cookson, 922 F.3d 1079 (10th Cir. 2019); United States v. Friedman, 554 F.3d 1301 (10th Cir. 2009): Provide standards for procedural reasonableness review.
United States v. Porter, 905 F.3d 1175 (10th Cir. 2018): Limits the scope of plea‑agreement appeal waivers as applied to post‑revocation sentencing challenges.
United States v. Smith, 907 F.2d 133 (11th Cir. 1990): A pre‑1994 decision that triggered congressional correction. Smith limited revocation sentences to what was available “at the time of initial sentencing,” effectively blocking additional sanction for the violation beyond the original range. The 1994 amendments (discussed below) were drafted to undo Smith’s approach.
United States v. Shaefer, 120 F.3d 505 (4th Cir. 1997): Recognizes that “resentencing” under § 3565(a)(2) permits the district court to begin anew within subchapter A and impose any sentence appropriate under statutory and Guidelines provisions—supporting a distinct sentence for the underlying offense apart from the violation sanction.
Guidelines and Statutes: 18 U.S.C. §§ 3553(a)(4)(A) & (B), 3565(a)(2); U.S.S.G. chs. 5 & 7; U.S.S.G. § 5B1.1 (probation eligibility); § 7B1.4 (Chapter 7 sanction table).

The opinion also canvasses other circuits’ revocation decisions—many of which predate or do not rigorously engage with the 1994 statutory amendments—and underscores that Moore I is firmly anchored in Congress’s 1994 changes.

Legal Reasoning

1) The Moore I Two‑Step Is Binding; Ignoring It Is Plain Error

The district court’s approach—selecting a term within the original Chapter 5 range and disregarding Chapter 7 entirely—conflicted with Moore I’s required two‑step framework. The panel is explicit: that misstep is error, and it is plain.

2) The Appellant’s “Alternative Sentence = 0 Months” Theory Fails

Rather than argue prejudice from the general Moore I error, the appellant advanced a narrow theory: because the original sentencing court did not announce an “alternative” prison term (e.g., “If probation is revoked, I’ll impose X months”), the step‑one resentencing on the underlying offenses had to be zero months. The court rejected this argument for multiple reasons:

No textual or precedential support in Moore I. Moore I did not articulate an “alternative sentence” rule and cannot be fairly read to lock in a zero‑month prison term absent such an announcement.
Functional inconsistency with probation as a conditional sentence. The original court here imposed a conditional sentence of probation and explicitly contemplated incarceration were probation violated. Had the court intended a zero‑month sentence for the underlying offenses, it could have imposed time served and supervised release from the outset. Moreover, even if the court had varied to Zone A at the original sentencing, the step‑one range would have been 0–6 months—not a mandatory zero.
Doctrinal incoherence with Chapter 7’s breach‑of‑trust paradigm. The Chapter 7 sanction for the violation is cumulative to the step‑one sentence for the underlying crimes; collapsing step one to zero would reward a defendant for securing—and then violating—probation.
Plain‑error prong two not satisfied. Because Moore I does not support the “alternative sentence = 0 months” proposition, the asserted error was not “plain.”

3) Why the Two Steps Are Distinct and Cumulative

The court’s reasoning, reinforced by Judge Phillips’s concurrence, emphasizes that Congress intended two separate and cumulative sentencing activities after probation revocation:

Step One (Chapter 5): “Resentence” on the underlying offense under subchapter A and the Chapter 5 Guidelines, applying the § 3553(a) factors.
Step Two (Chapter 7): Separately sanction the probation violation under Chapter 7’s policy statements, which implement a breach‑of‑trust model. The sanction is in addition to any sentence for the underlying offense.

The panel notes that fusing the two would muddle appellate review: courts apply different degrees of deference when assessing substantive reasonableness of a Chapter 5 sentence versus a Chapter 7 sanction. Without transparent apportionment, meaningful review is impossible.

4) Legislative History: The Wilkins–Thurmond Amendments of 1994

Judge Phillips’s concurrence supplies an authoritative account of the 1994 statutory amendments that Moore I implemented. After the Eleventh Circuit’s Smith decision confined post‑revocation sentences to what was available “at the time of initial sentencing,” then‑Chair of the Sentencing Commission, Judge William W. Wilkins, asked Senator Strom Thurmond to shepherd statutory fixes:

18 U.S.C. § 3565(a)(2): Congress deleted Smith’s “available at the time of initial sentencing” language and replaced it with “resentence the defendant under subchapter A.” This ensured the district court could impose a fresh step‑one sentence for the underlying offense and was not tethered to the original range.
18 U.S.C. § 3553(a)(4)(B): Congress added a specific instruction to consider “the applicable guidelines or policy statements” for probation/supervised‑release violations—i.e., Chapter 7—thus authorizing a separate violation sanction beyond the underlying offense sentence.

The concurrence explains that using “or” between § 3553(a)(4)(A) and (B) does not force courts to choose between Chapter 5 and Chapter 7; it directs courts to the correct source for each distinct task (underlying offense vs. violation). In other words, sentencing after revocation involves two different statutory commands applied to two different questions—hence two steps.

5) What the District Court Should Have Done

Under Moore I:

Calculate a step‑one Chapter 5 sentence for the underlying offenses (here, within the original 33–41 month range, subject to variance).
Separately calculate a step‑two Chapter 7 sanction for the violation (here, undisputedly 3–9 months), and decide whether to run it consecutively or concurrently, explaining the § 3553(a) factors and the breach‑of‑trust rationale.
State, on the record, which portion of the total sentence corresponds to step one and which to step two, to facilitate procedural and substantive reasonableness review.

In this case, the district court effectively imposed 36 months under Chapter 5 and zero months under Chapter 7—something Judge Murphy described as an “unwarranted benefit”—but the government did not cross‑appeal.

Impact

On District Courts

Moore I’s two‑step resentencing procedure is not optional. Disregarding it is plain procedural error. Courts must “show their work” and apportion the total sentence between step one and step two.
Avoid “sentence‑in‑advance” commitments. A judge cannot pre‑commit the punishment for hypothetical future violations.
Do not collapse Chapter 5 and Chapter 7. The underlying offense sentence and the breach‑of‑trust sanction are conceptually and legally distinct, serve different purposes, and receive different appellate deference.

On Probation Offices and Sentencing Memoranda

Outdated authorities like United States v. Maltais (10th Cir. 1992), which predate the 1994 amendments, should not be cited to support exclusive reliance on the original offense range at revocation.
Presentence and violation reports should expressly identify both the Chapter 5 range for resentencing and the Chapter 7 range for the violation, and recommend how to apportion and structure the total sentence.

On Appellate Strategy

Defense counsel must object below to preserve procedural claims, or be prepared to show all four prongs of plain error on appeal. Targeted theories (like an “alternative sentence” lock‑in) must be supported by clear precedent to satisfy prongs one and two.
The government should consider cross‑appealing when a district court effectively imposes a zero‑month Chapter 7 sanction despite a clear violation range—particularly when the court’s failure to apply step two is acknowledged as plain error.

Broader Doctrinal Effects

The decision fortifies Moore I against calls to narrow or abandon it, particularly in light of the detailed legislative history showing Congress’s intent for a two‑track, cumulative sentencing structure after revocation.
It rejects attempts to craft judge‑made “lock‑in” rules that would undercut that structure by collapsing step one to zero months in the absence of a previously announced alternative prison term.

Complex Concepts Simplified

Two‑Step Resentencing After Probation Revocation: Step one is a fresh sentence for the original crime under Chapter 5; step two is an additional sanction for violating probation under Chapter 7. They are separate and cumulative.
Chapter 5 vs. Chapter 7: Chapter 5 contains the offense‑specific sentencing framework; Chapter 7 contains policy statements for breaches of supervision (probation/supervised release) and reflects a “breach‑of‑trust” model. Chapter 7 sanctions are generally in addition to the sentence for the offense.
Plain Error (Four Prongs): (1) Error; (2) that is clear or obvious (plain); (3) affecting substantial rights (a reasonable probability of a different result); and (4) seriously affecting the fairness, integrity, or public reputation of judicial proceedings. Failing to apply Moore I is plain error, but appellants must still show prongs three and four—or, for any novel sub‑theory, prongs one and two as well.
“Sentence‑in‑Advance”: A practice by which a court pre‑announces a future punishment for a hypothetical violation. Moore I forbids this because courts cannot punish conduct that has not occurred and because it undermines individualized sentencing and reviewability.
“Alternative Sentence” Myth: There is no rule that a court’s failure to announce an alternative prison term at the original probationary sentencing compels a zero‑month sentence at step one after revocation. Even a Zone A variance would be a 0–6 month range, not a guaranteed zero.

Conclusion

United States v. Moon Seals consolidates and clarifies the Tenth Circuit’s framework for sentencing after probation revocation. It reaffirms that district courts must: (1) “resentence” under Chapter 5 for the underlying offense, and (2) separately sanction the violation under Chapter 7—explaining each component and the total sentence. It also rejects a defense attempt to create a “zero‑month lock‑in” at step one in the absence of a previously announced alternative sentence. The majority holds the failure to apply Moore I is plain error; yet without a viable theory establishing prongs one and two (and ultimately prejudice), appellate relief will be denied.

The concurrences drive home two complementary points: Judge Murphy highlights the absence of prejudice and the windfall created when the Chapter 7 sanction is omitted; Judge Phillips anchors Moore I in the 1994 amendments and their legislative history, showing that Congress deliberately designed a two‑step, cumulative system that separates punishment for the underlying offense from the breach‑of‑trust sanction. Going forward, sentencing courts in the Tenth Circuit should expect their work to be scrutinized for compliance with this structure, and litigants should tailor their arguments accordingly.