United States v. Holman ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4313
VANCE LEONARD HOLMAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., District Judge.
(CR-94-52)
Submitted: December 22, 1998
Decided: January 14, 1999
Before MURNAGHAN, WILKINS, and NIEMEYER,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Louis C. Allen, III, Federal Public Defender, Eric D. Placke, Assistant
Federal Public Defender, Greensboro, North Carolina, for Appellant.
Walter C. Holton, Jr., United States Attorney, Benjamin H. White, Jr.,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Vance Leonard Holman appeals from the twenty-four-month sen-
tence imposed by the district court after a hearing to revoke Holman's
term of supervised release. On appeal, he contends that the district
court erred in departing upward from the revocation guideline range
of three to nine months to twenty-four months so that Holman could
receive substance abuse treatment. Finding no error, we affirm.
Holman pled guilty and was convicted of conspiracy to distribute
cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846 (1994). Although
Holman's sentencing guideline range was sixty to seventy-one
months, the district court departed downward based on Holman's sub-
stantial assistance to the government. The district court sentenced
Holman to serve thirty months in prison and five years of supervised
release. Among the standard conditions of supervision imposed on
Holman were the requirements that he "not purchase, possess, use,
distribute or administer any narcotic or other controlled substance, or
any paraphernalia related to such substances" and that he "permit a
probation officer to visit him or her at any time at home or elsewhere
and shall permit confiscation of any contraband observed in plain
view by the probation officer."
Holman's supervised release began in May 1996. On March 5,
1998, the probation officer petitioned the court for a warrant and for
the revocation of Holman's term of supervision. In the petition, the
probation officer reported that Holman tested positive for cocaine
based on sweat patch tests on December 22, 1997, January 20, 1998,
and February 2, 1998. Also, from September 1997 through February
1998, Holman refused to provide to the probation officer his address
of residence and would not allow the probation officer to visit with
him. The probation officer noted that this constituted a grade C viola-
tion and carried a sentencing range of three to nine months imprison-
ment, with a statutory maximum of three years.
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Following a hearing, the district court found that Holman did vio-
late the terms of his release. After noting that Holman's original sen-
tence was the result of a downward departure from a range of sixty
to seventy-one months, the court revoked Holman's supervised
release, departed upward from his three to nine month range, and sen-
tenced Holman to twenty-four months imprisonment:"The court finds
that, since you were the recipient of a downward departure when you
were originally sentenced, that it is appropriate to depart upward in
this case from the three-to-nine month range to 24 months in order
that you may be designated for a facility where intensive substance
abuse treatment can be taken advantage of." The court explained its
departure: "[y]ou were using cocaine, according to the results of the
sweat patch test. For that reason, I feel that you are in need of further
rehabilitation and the participation in substance abuse treatment pro-
grams." On appeal, Holman contends that the district court erred by
departing upward from the guideline range for the impermissible rea-
son that Holman was in need of substance abuse treatment.
The district court did not err by considering Holman's need for
rehabilitation. The statute governing the imposition and revocation of
supervised release expressly authorizes consideration of a defendant's
need for rehabilitation. See 18 U.S.C.A.§ 3583 (West 1985 & Supp.
1998). Section 3583(e) directs the court to consider the factors set
forth in 18 U.S.C.A. § 3553(a) (West 1985 & Supp. 1998), which
include the defendant's need for "educational or vocational training,
medical care, or other correctional treatment." 18 U.S.C.A.
§ 3553(a)(2)(D). Thus, the express language of§ 3583 allows the dis-
trict court to consider Holman's need for rehabilitation in revoking
supervised release and determining the length of imprisonment. See
United States v. Thornell, 128 F.3d 687, 688 (8th Cir. 1997); United
States v. Jackson, 70 F.3d 874, 880 (6th Cir. 1995); United States v.
Giddings, 37 F.3d 1091, 1097 (5th Cir. 1994); United States v.
Anderson, 15 F.3d 278, 282-83 (2d Cir. 1994). We note that Hol-
man's sentence was well within the statutory maximum of three
years. See 18 U.S.C.A. § 3583(e)(3).
Accordingly, we affirm the district court's order revoking super-
vised release and imposing a twenty-four-month sentence. We dis-
pense with oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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