United States v. Wortman , 182 F. App'x 755 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
May 18, 2006
UNITED STATES CO URT O F APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 05-2238
v.
(D.C. No. CR -01-1190 JP)
(D . N.M .)
LY N N G ER ALD WO R TM A N ,
Defendant-Appellant.
OR DER AND JUDGM ENT *
Before KELLY, M cKA Y, and LUCERO, Circuit Judges.
Following mandatory revocation of supervised release for testing positive
for drug use, Lynn Wortman w as sentenced to six months’ imprisonment. He
appeals the district court’s decision to imprison him arguing that he should have
been placed in a residential treatment program and that the district court imposed
an unreasonable sentence. Exercising jurisdiction under 28 U.S.C. § 1291, we
A FFIR M the district court and DISM ISS the appeal.
*
The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
Lynn W ortman w as sentenced to 18 months’ imprisonment and 3 years’
supervised release following his guilty plea to an indictment charging possession
of a unregistered firearm. After he w as released from prison, and two years
through his term of supervised release, the United States Probation Office filed a
petition for revocation of supervised release, alleging that Wortman had failed to
comply with mandatory conditions of supervised release by illegally possessing
and using controlled substances. The petition also alleged that W ortman had
violated a special condition of his supervised release by testing positive for drug
use on four occasions and failing to submit to drug testing on six occasions.
At the hearing held on the petition for revocation of supervised release,
W ortman admitted to testing positive for methamphetamine use on four occasions,
and to failing to submit himself to drug testing on six occasions. Pursuant to 18
U.S.C. §§ 3583(g)(1), (3), 1 the district court revoked Wortman’s supervised
1
18 U.S.C. §§ 3583(g) provides:
M andatory revocation for possession of controlled substance or firearm or
for refusal to comply with drug testing. – If the defendant –
(1) possesses a controlled substance in violation of the condition set
forth in subsection (d);
(2) possesses a firearm, as such term is defined in section 921 of this
title, in violation of Federal law, or otherwise violates a condition of
supervised release prohibiting the defendant from possessing a
firearm;
(3) refuses to comply with drug testing imposed as a condition of
supervised release; or
(4) as a part of drug testing, tests positive for illegal controlled
substances more than 3 times over the course of 1 year;
the court shall revoke the term of supervised release and require the
(continued...)
-2-
release and imposed a new sentence: six months’ imprisonment and two years’
supervised release. W ortman now appeals both the district court’s decision to
revoke his supervised release as well as the imposition of six months’
imprisonment.
Although W ortman concedes that he met the preconditions for mandatory
revocation of supervised release under 18 U.S.C. §§ 3583(g)(1), (3), he argues
that the district court erred by not placing him in a residential substance treatment
program pursuant to 18 U.S.C. § 3583(d). W e review this challenge to the district
court’s order revoking supervised release for abuse of discretion. United States v.
M cAfee, 998 F.2d 835, 837 (10th Cir. 1993). W ortman relies upon the following
provision from 18 U.S.C. § 3583(d):
The court shall consider whether the availability of appropriate
substance abuse treatment programs, or an individual’s current or
past participation in such programs, warrants an exception in
accordance with United States Sentencing Commission guidelines
from the rule of section 3583(g) when considering any action against
a defendant who fails a drug test.
In its sentencing hearing, the district court explained why it refused to place
W ortman in a residential treatment program. After noting that W ortman had
already spent close to eighteen months in prison, the district court observed that
the forty-hour substance abuse program he undertook while in prison appeared
1
(...continued)
defendant to serve a term of imprisonment not to exceed the maximum term
of imprisonment authorized under subsection (e)(3).
-3-
entirely ineffectual: W ortman tested positive for methamphetamine use four
times since he left prison, once while the petition for revocation of supervised
release was pending. The court also expressed its concern that W ortman had
refused to acknowledge to the United States Probation Office that he had a
serious problem with drug abuse. As such, the district court did not abuse its
discretion by imposing a term of imprisonment.
W ortman also challenges the district court’s imposition of a six month
sentence. The district court must revoke a defendant’s supervised release and
impose a term of imprisonment of up to two years if the original offense of
conviction was a Class C felony, as it was in this case. 2 18 U.S.C. § 3583(e)(3).
In doing so, the district court must comply with the general sentencing statutes,
set forth in 18 U.S.C. §§ 3551 thru 3559, and must consider the recommendations
set forth by the Sentencing Commission in the sentencing guidelines. United
States v. Burdex, 100 F.3d 882, 884 (10th Cir. 1996). Chapter 7 of the
Guidelines, which addresses probation and supervised release, does not provide a
guideline range for a defendant who violates the conditions of his or her
supervised release. Instead, it sets forth a non-binding policy statement.
U.S.S.G. §§ 7B1.1(a)(3), 7B1.4(a). The policy statement suggests that a range of
three to nine months is an appropriate range for a defendant who, like W ortman,
2
A Class C felony is one in which the statutory maximum sentence is less
than 25 years but ten years or more. 18 U.S.C. § 3559(a)(3).
-4-
was originally convicted of a Class C felony, and who is in criminal history
category I. Id.W ortman argues that the district court gave insufficient weight to several of
the factors set forth in 18 U.S.C. § 3553(a). W e reverse a sentence imposed for a
supervised release violation only if it is “plainly unreasonable.” United States v.
Kelley, 359 F.3d 1302, 1304 (10th Cir. 2004). Here, the district judge was
required to revoke Wortman’s supervised release, and six months’ imprisonment
was within the guideline range. U.S.S.G. §§ 7B1.1, 7B1.4. Likewise, the
sentence did not exceed the two-year maximum imprisonment term for class C
felonies. See 18 U.S.C. § 3583(e)(3). The district court’s decision was not
plainly unreasonable.
Accordingly, we A FFIR M the district court and DISM ISS the appeal.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
-5-