Lanz

MEMORANDUM **

Defendant-Appellant Cenobio Humberto Herrera Lanz appeals the 36-month sentence the district court imposed upon the revocation of Lanz’s supervised release.

I

Subsequent to the imposition of sentence in this case, we decided United States v. Olabanji, 268 F.3d 636, 638-39 (9th Cir. 2001) (holding that a district court that has rejected the range suggested by the policy statement must then consider the guideline sentencing range applicable to the underlying offense when sentencing for a revocation of probation). In Olabanji , we read 18 U.S.C. § 3565 , the statutory basis for revocation of probation, in conjunction with 18 U.S.C. § 3553 , in particular § 3553(b). 268 F.3d at 638-39 . This subsection provides in part that when there is no applicable sentencing guideline, “the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses.” We held that a violation of probation is “similar” to the underlying offense and therefore the guideline range applicable to the underlying offense must be considered. Id. at 639 .

Olabanji directly concerned revocation of probation, rather than…