United States v. Anthony Sherone Wiggins , 220 F.3d 1248 ( 2000 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 2, 2000
THOMAS K. KAHN
No. 99-14884 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 95-00100-CR-001
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY SHERON WIGGINS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(August 2, 2000)
Before TJOFLAT, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Anthony Sherone Williams appeals his twenty-four month sentence imposed
upon the revocation of his supervised release. Upon review, we affirm.
I. BACKGROUND
Wiggins pled guilty to three counts of bank robbery, in violation of 18
U.S.C. § 2113(a), and was sentenced to forty-eight months’ imprisonment and
three years’ supervised release. While Wiggins was serving the supervised release
portion of this sentence, a United States probation officer filed a petition to revoke
his supervised release contending that Wiggins violated several conditions of his
supervised release.1 A hearing was conducted on November 10, 1999 at which
Wiggins admitted these violations.
At the conclusion of the revocation hearing, the district court stated that “the
seriousness of your drug problem is reflected here in Court. And you need to be
rehoused in the Bureau of Prisons to take the comprehensive residential substance
program for a period of two years.” As a result, the district court sentenced
Wiggins to twenty-four months’ imprisonment, the maximum term allowed under
1
Specifically, the probation officer alleged that Wiggins (1) tested positive for
cocaine, (2) failed to report for urinalysis, (3) associated with a person engaged in
criminal activity, (4) failed to refrain from conduct or activities that would give
reasonable cause to believe he had violated any criminal law, (5) failed to make
restitution payments as ordered by the court, and (6) failed to report and file reports
with his probation officer as directed.
2
18 U.S.C. § 3583, rather than the three to nine months recommended by chapter
seven of the United States Sentencing Guidelines (“Guidelines”). Wiggins appeals
this sentence.
II. DISCUSSION
We review the district court’s decision to exceed the sentencing range
recommended in chapter seven of the Guidelines for abuse of discretion. See
United States v. Hofierka, 83 F.3d 357, 361-62 (11th Cir. 1996). Wiggins argues
on appeal that is was inappropriate for the district court to impose a two-year
sentence solely for the purpose of ensuring that he would undergo comprehensive
drug abuse rehabilitation treatment. Specifically, he asserts that such reliance upon
a rehabilitative program for sentencing is contrary to this Court’s decision in
United States v, Harris, 990 F.2d 594 (11th Cir. 1993).
This court was faced with a similar question in United States v. Aguillard,
__ F.3d __, No. 99-13358 (11th Cir. July 5, 2000). In Aguillard, we determined
that we were not bound by our decision in Harris, because dealt with the
imposition of an initial sentence rather than the revocation of supervised release.
Further, we noted that all six of our sister circuits to address the issue concluded
that it is not improper to take the availability of rehabilitative programs into
account in deciding the length of sentence up to the maximum upon the revocation
3
of supervised release. See United States v. Anderson, 15 F.3d 278 (2d Cir. 1994);
United States v. McGhee, 85 F.3d 618 (4th Cir. 1996) (unpublished table
decision); United States v. Giddings, 37 F.3d 1091 (5th Cir. 1994); United States v.
Jackson, 70 F.3d 874 (6th Cir. 1995); United States v. Harlow, 124 F.3d 205 (7th
Cir. 1997) (unpublished table decision); United States v. Shaw, 180 F.3d 920 (8th
Cir. 1999). Accordingly, we held in Aguillard that the district court’s reliance
upon the availability of a drug treatment program in determining the sentence for
the revocation of supervised release was not plain error.
We recognize that Aguillard does not control our decision in this case
because the Aguillard court was reviewing the district court’s action for plain error,
while we review Wiggins’ sentence for an abuse of discretion.2 However, we find
the reasoning in Aguillard compelling, and conclude that the same result is
warranted under the abuse of discretion standard. Accordingly, the district court
did not abuse its discretion in considering the availability of drug treatment in
imposing a sentence exceeding that recommended by chapter seven of the
Guidelines.
III. CONCLUSION
2
The appellant in Aguillard failed to object to the grounds for the district court’s
sentence in the district court, thus necessitating plain error review. Wiggins did raise
this objection in the district court in this case.
4
We conclude that the district court did not abuse its discretion in considering
the availability of a residential drug treatment program in determining Wiggins’
sentence upon revocation of his supervised release.
AFFIRMED.
5