United States v. Winslow , 39 F. App'x 883 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4666
EARL WINSLOW,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-94-35)
Submitted: June 21, 2002
Decided: July 11, 2002
Before WILKINS and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Richard Andrew Davis, Charlottesville, Virginia, for Appellant. John
L. Brownlee, United States Attorney, Ray B. Fitzgerald, Jr., Assistant
United States Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. WINSLOW
OPINION
PER CURIAM:
Earl Winslow appeals the sentence of thirty-six months imprison-
ment that the district court imposed on him after it revoked his super-
vised release. For the reasons explained below, we vacate the
sentence and remand for resentencing.
Winslow pled guilty to federal drug charges in 1996 and was sen-
tenced to a term of eighty months imprisonment and sixty months
supervised release. Winslow began serving his term of supervised
release in March 2000, in New York City. After Winslow repeatedly
violated supervised release by using drugs and failing to appear for
drug testing, the district court revoked his supervised release in
August 2001. The guideline range recommended under U.S. Sentenc-
ing Guidelines Manual § 7B1.4, p.s. (2000), was 8-14 months impris-
onment. The statutory maximum sentence was thirty-six months
imprisonment.
The court found that Winslow needed an intensive drug treatment
program, and that the twelve-month, 500-hour treatment program he
had completed while incarcerated was not the most intensive program
the Bureau of Prisons (BOP) had to offer. The court stated its belief
that the BOP offered a longer program lasting 24-30 months that
would benefit Winslow. The court imposed a sentence of thirty-six
months imprisonment so that Winslow could participate in that treat-
ment program. On appeal, Winslow contends that the program envi-
sioned by the district court is not available and that the district court
consequently abused its discretion in imposing the three-year sen-
tence.
This court reviews a sentence imposed after a revocation of super-
vised release for abuse of discretion. United States v. Davis, 53 F.3d
638, 642 (4th Cir. 1995). The sentencing range calculated under
§ 7B1.4 is purely advisory, so the district court did not abuse its dis-
cretion simply by imposing a sentence above the range. Davis, 53
F.3d at 642. The district court did not err in considering Winslow’s
need for rehabilitation because the statute governing revocation of
supervised release, 18 U.S.C.A. § 3583 (West 2000 & Supp. 2002)
UNITED STATES v. WINSLOW 3
expressly permits consideration of this factor. See, e.g., United States
v. Brown, 224 F.3d 1237, 1240 (11th Cir. 2000). The sentence did not
exceed the statutory maximum. See 18 U.S.C.A. § 3583(e)(3) (provid-
ing for three-year maximum for Class B felony).
Winslow claims on appeal that the district court’s decision to sen-
tence him to the statutory maximum of thirty-six months was an
abuse of discretion because it was based on misinformation. Relying
on 18 U.S.C. § 3621(e) (1994), and 28 C.F.R. § 550.56 (2000), Wins-
low maintains that the BOP does not have a drug treatment program
lasting 24-36 months, that he has already completed the longest treat-
ment program, which is the 500-hour program lasting 6-12 months,
and that he is ineligible to repeat the program.
Our examination of the materials submitted on appeal reveals only
that Winslow may be correct. It is not entirely clear to this court what
treatment programs are available to an inmate returned to custody
after revocation of supervised release, but it is evident that the district
court lacked sufficient reliable information about treatment options to
justify imposing a thirty-six month sentence so that Winslow could
participate in a particular program that may not exist. The district
court specifically stated that it was imposing a thirty-six month sen-
tence so that Winslow could participate in a 24-30-month drug treat-
ment program which may well be unavailable. The district court did
not provide any other reason for imposing a sentence of that length,
and it is not clear from the record that the court would have imposed
the same sentence had it been aware that the intensive program it had
in mind is not currently available.
Given the circumstances, we vacate the sentence and remand for
further proceedings. On remand, the parties should consult the BOP
and present to the district court reliable information as to what treat-
ment programs are available to a defendant returned to custody after
revocation of supervised release.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED