United States v. Gibson , 225 F. App'x 175 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5178
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KENNETH N. GIBSON, III, a/k/a KG,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:03-cr-00154-ALL)
Submitted: February 12, 2007 Decided: April 13, 2007
Before WILKINS, Chief Judge, and WILKINSON and MOTZ, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Lex A. Coleman, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, Miller A. Bushong, III, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Beckley, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth N. Gibson, III appeals the revocation of his term of
supervised release by the district court and the resulting
sentence. Finding no error, we affirm.
I.
In late 2003, Gibson pleaded guilty to distribution of cocaine
base. He was sentenced to 36 months imprisonment, to be followed
by a three-year term of supervised release.
Gibson began to serve his supervised release term on
October 7, 2005. Less than two months later, on December 1,
Gibson’s urine tested positive for cocaine. Gibson had two
additional positive tests on June 23 and July 7, 2006. At that
point, Gibson heeded the advice of his probation officer to enter
a drug treatment program. The probation officer described Gibson
as doing “moderately well” in the program but noted that Gibson had
missed four random drug screens during the course of his
participation. J.A. 31.
In September 2006, Gibson was charged in state court with
sexual assault and burglary. Shortly thereafter, the probation
officer petitioned for revocation of Gibson’s supervised release,
citing two violations of the conditions of release: commission of
a crime and use of a controlled substance. Without objection from
the Government, the district court bifurcated the proceedings and
held the petition in abeyance insofar as it related to the state
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court charges. The court then proceeded on the drug possession
charges and ruled that Gibson was subject to revocation under 18
U.S.C.A. § 3583(g)(4) (West Supp. 2006) (providing for revocation
of supervised release if the defendant “tests positive for illegal
controlled substances more than 3 times over the course of 1
year”). Although Gibson urged the court to exercise its discretion
not to revoke his supervised release, see 18 U.S.C.A. § 3583(d)
(West Supp. 2006), the court sentenced him to ten months
imprisonment.
II.
Gibson first maintains that the district court failed to
recognize its discretion to except him from mandatory revocation of
supervised release, see id. We conclude, however, that the
district court was aware of its discretion and simply declined to
exercise it.
Section 3583(g)(4) provides for mandatory revocation of
supervised release when a defendant has tested positive for illegal
drug use more than three times in the course of a year. See id.§ 3583(g)(4). However, § 3583(d) requires the court to consider
“whether the availability of appropriate substance abuse treatment
programs, or an individual’s current or past participation in such
programs, warrants an exception ... from the rule of section
3583(g).” Id. § 3583(d). Although Gibson brought this provision
to the attention of the district court during the revocation
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hearing, the court did not explicitly discuss it. However, in
ruling on Gibson’s motion for reconsideration, the district court
acknowledged and expressly declined to exercise its discretion
under § 3583(d).
As an alternative to his claim that the district court was
unaware of its discretion not to revoke his supervised release,
Gibson argues that the court abused its discretion by resting its
decision solely on the facts that constituted the basis for
revocation in the first place. In essence, Gibson argues that the
district court was required to exercise its discretion because
Gibson was participating in a drug treatment program with moderate
success. We reject this argument. Successful participation in a
drug treatment program renders a defendant eligible for a
discretionary denial of revocation; it does not create an
entitlement. Here, the district court was within its discretion to
conclude that the circumstances did not warrant denial of
revocation.
III.
Gibson next argues that the ten-month sentence imposed by the
district court is “plainly unreasonable,” United States v. Crudup,
461 F.3d 433, 438 (4th Cir. 2006), petition for cert. filed,
No. 06-7631 (U.S. Nov. 3, 2006). We disagree.
Gibson does not dispute that the district court properly
calculated the applicable guideline range--8 to 14 months--and
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sentenced him within it. He simply maintains that the sentence
imposed by the district court is unreasonable because it is
unnecessary to achieve the goals of imposing a sentence for a
supervised release violation. See id. at 437-38 (noting that the
purpose of a sentence upon revocation of supervised release is “to
sanction the violator for failing to abide by the conditions of the
court-ordered supervision” (internal quotation marks omitted)). We
conclude, in light of the broad discretion granted to the district
court regarding sentencing upon revocation of supervised release,
that the sentence is not unreasonable.
IV.
For the reasons set forth above, we affirm. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before us and oral argument
would not aid the decisional process.
AFFIRMED
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