United States v. Wright ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 15, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 17-1191
(D.C. No. 1:06-CR-00195-DME-2)
ANTHONY WRIGHT, a/k/a (D. Colo.)
Playboy, a/k/a Rose,
Defendant-Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
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Convicted of conspiracy and bank fraud, Mr. Anthony Wright was
sentenced to 70 months’ imprisonment and 5 years’ supervised release. See
18 U.S.C. §§ 371, 1344. During Mr. Wright’s supervised-release term, the
district court ordered revocation of supervised release for violation of the
conditions and imposed a new sentence of 12 months’ imprisonment and 2
*
The parties have not requested oral argument, and it would not
materially aid our consideration of the appeal. See Fed. R. App. P.
34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we have decided the appeal based
on the briefs.
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
years’ supervised release. For the new term of supervised release, the
district court imposed special conditions that (1) required testing for drug
abuse, (2) authorized drug treatment at the probation office’s direction,
and (3) prohibited the consumption of alcohol. Mr. Wright challenges these
conditions, contending that the district court had
 abused its discretion because the new conditions were
unnecessary and
 improperly delegated judicial discretion over whether to
require drug treatment.
We disagree. The district court did not abuse its discretion and did not
improperly delegate judicial discretion. Thus, we affirm.
I. We review the special conditions for an abuse of discretion.
At sentencing, Mr. Wright objected to the special conditions, arguing
that they were unnecessary. We review the imposition of these conditions
for an abuse of discretion and “‘will not disturb the district court’s ruling
absent a showing it was based on a clearly erroneous finding of fact or an
erroneous conclusion of law or manifests a clear error of judgment.’”
United States v. Flaugher, 805 F.3d 1249, 1251 (10th Cir. 2015) (quoting
United States v. Bear, 769 F.3d 1221, 1226 (10th Cir. 2014)).
District courts have broad discretion to impose special conditions for
supervised release. Bear, 769 F.3d at 1226. But Congress has limited this
discretion in 18 U.S.C. § 3583(d), which sets out three requirements for
special conditions.
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First, the conditions must be reasonably related to
 the nature and circumstances of the offense,
 the defendant’s history and characteristics,
 the deterrence of criminal conduct,
 the protection of the public from further crimes by the
defendant, or
 the defendant’s educational, vocational, medical, or other
correctional needs.
United States v. Mike, 632 F.3d 686, 692 (10th Cir. 2011).
Second, the conditions must involve no greater deprivation of liberty
than is reasonably necessary to deter criminal activity, protect the public,
and promote the defendant’s rehabilitation. Id.Third, the conditions must be consistent with the Sentencing
Commission’s policy statements. Id.II. The district court did not abuse its discretion in requiring drug
testing and authorizing drug treatment.
The sentencing guidelines recommend drug treatment when the
district court has reason to believe that the defendant is abusing controlled
substances. U.S. Sentencing Guidelines Manual § 5D1.3(d)(4). Under the
guidelines, drug treatment can include testing. Id.
Mr. Wright argues that (1) there was little or no evidence of
continued drug abuse, and (2) he already completed a drug-treatment
program. We reject these arguments.
3
Prior to the initial sentencing, Mr. Wright admitted that he had used
marijuana weekly before his arrest. He also expressed optimism that he
would benefit from drug treatment while on supervised release. But he was
unsure whether he could refrain from marijuana use.
Mr. Wright admits that he tested positive for marijuana while on
supervised release. And in the petition for revocation, the probation office
alleged under oath that Mr. Wright had failed to take drug tests on two
occasions. Though this allegation was dismissed, defense counsel admitted
that Mr. Wright had failed to take these tests, blaming problems with
transportation but conceding that the probation office never received
notification of the transportation problem. And a probation officer stated
under oath that Mr. Wright had been arrested in 2017 for possession of a
controlled substance. See United States v. McGhee, 869 F.3d 703, 706 (8th
Cir. 2017) (per curiam) (stating that the court can consider dismissed
violations of supervised release involving an arrest).
In these circumstances, the district court had reason to believe that
Mr. Wright had recently been using marijuana, which could be considered
abuse of a controlled substance. See United States v. Cooper, 171 F.3d
582, 587 (8th Cir. 1999) (“‘When it comes to controlled substances, unlike
alcohol which can be consumed legally, a user is by definition an abuser.’”
(quoting United States v. Simmons, 130 F.3d 1223, 1224 (7th Cir. 1997))).
Thus, the district court had discretion to require drug testing and to
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authorize drug treatment. U.S. Sentencing Guidelines Manual
§ 5D1.3(d)(4); see also United States v. Jordan, 485 F.3d 982, 985 (7th
Cir. 2007) (stating that drug-treatment conditions “are not necessarily
reserved for individuals with extensive . . . histories of drug . . . abuse”).
Mr. Wright relies on United States v. Napier, 463 F.3d 1040 (9th Cir.
2006). There the district court imposed similar special conditions based on
a 20-year-old conviction for selling cocaine and the vague accusations of a
coworker, who believed that the defendant was abusing “some type of
substance.” Napier, 463 F.3d at 1044–45. The Ninth Circuit vacated the
special conditions, determining there was no reason to believe that the
defendant had abused drugs or alcohol. Id. at 1045. In contrast, the district
court here had evidence that Mr. Wright had used a controlled substance
within the recent past.
Mr. Wright also contends that drug treatment was unnecessary
because he had already participated in a treatment program. The district
court had discretion to reject this contention. Mr. Wright completed a
drug-treatment program when he was initially put on supervised release.
But the court had evidence of (1) a later drug test showing marijuana use
and (2) two failures to appear for drug tests. This evidence gave the
district court reason to question the effectiveness of the earlier drug
treatment.
* * *
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The district court’s special conditions involving testing and
treatment for drugs
 were reasonably related to Mr. Wright’s history and
characteristics,
 did not involve a greater deprivation of liberty than reasonably
necessary, and
 were consistent with § 5D1.3(d)(4).
See 18 U.S.C. § 3583(d). Accordingly, the district court did not abuse its
discretion in imposing the new special conditions involving testing and
treatment for drugs.
III. The district court did not abuse its discretion in requiring Mr.
Wright to abstain from alcohol.
Mr. Wright also argues that the district court abused its discretion in
banning alcohol while he was on supervised release. We disagree.
As Mr. Wright points out, the record does not contain any evidence
that he has abused alcohol. But the sentencing guidelines recommend an
alcohol ban when the court has reason to believe that the defendant is
abusing a controlled substance. U.S. Sentencing Guidelines Manual
§ 5D1.3(d)(4).
As discussed above, the district court had reason to believe that Mr.
Wright had abused marijuana. See p. 4, above. Under these circumstances,
the district court did not abuse its discretion in banning alcohol.
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IV. The district court did not err in delegating discretion over drug
treatment.
In his opening brief, Mr. Wright argued that the district court had
plainly erred by delegating its discretion to the probation office, which
could decide whether to require drug treatment. 1 A delegation is
impermissible it if implicates a “significant liberty interest, such as one
requiring the defendant to participate in residential treatment . . . .” United
States v. Mike, 632 F.3d 686, 696 (10th Cir. 2011).
In responding, the government argued that the special condition
would be problematic only if it were read to allow the probation office to
unilaterally require treatment in a residential program. The government
asks us to avoid this problem by narrowly construing the condition to
prohibit the probation officer from requiring residential treatment. See
United States v. Bear, 769 F.3d 1221, 1231 (10th Cir. 2014) (narrowly
construing a broadly worded special condition to prevent the probation
office from unilaterally ordering residential mental-health treatment in
order to avoid a delegation issue); Mike, 632 F.3d at 696 (same).
In his reply brief, Mr. Wright admitted that the special condition for
drug treatment would not constitute plain error if the condition were read
1
Mr. Wright did not raise this issue in district court. He therefore
seeks review under the plain-error standard. See United States v. Bear, 769
F.3d 1221, 1230 (10th Cir. 2014).
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in this manner. Thus, Mr. Wright agrees with the government’s requested
interpretation of the condition.
Like the parties, we interpret the condition in a way that prevents
placement in residential treatment based solely on the probation office’s
recommendation. With this interpretation, Mr. Wright concedes that the
condition would not constitute plain error.
V. Conclusion
The district court did not abuse its discretion in imposing the new
special conditions based on evidence that Mr. Wright had tested positive
for marijuana and missed two drug tests. Nor did the district court plainly
err by delegating discretion over whether to order drug treatment.
Accordingly, we affirm.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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