United States v. Terry Joseph Smith , 144 F. App'x 819 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
ELEVENTH CIRCUIT
________________________ AUGUST 11, 2005
THOMAS K. KAHN
No. 04-15900 CLERK
Non-Argument Calendar
________________________
D.C. Docket No. 01-00259-CR-E
UNITED STATES OF AMERICA,
Plaintiff-Appellee
versus
TERRY JOSEPH SMITH,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(August 11, 2005)
Before CARNES, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Terry Joseph Smith appeals his sentence of 24 months’ imprisonment for
violating the conditions of his supervised release. On appeal, Smith contends that
the district court abused its discretion when it imposed a 24-month sentence in
excess of the range established in section 7B1.4 of the sentencing guidelines
because the court disregarded the Chapter 7 policy statements prior to imposing
sentence. Smith asserts that at the revocation hearing, the testimony that he
presented that he maintained steady employment and supported his family
supported “the possibility of an alternative method for rehabilitation rather than
incarceration.” Smith contends that despite this testimony, and the fact that he
was not charged with any new offenses, the district court disregarded viable
options to address his drug problem and sentenced him to the statutory maximum
of 24-months’ imprisonment. Finally, Smith asserts that he should have been
sentenced within the recommended guideline sentencing range of 5 to 11 months’
incarceration instead of the statutory maximum.
Typically, we review a district court’s decision to exceed the sentencing
range in Chapter 7 of the Sentencing Guidelines for an abuse of discretion. United
States v. Brown, 224 F.3d 1237, 1239 (11th Cir. 2000). However, when a
defendant fails to state clearly the grounds for an objection, his objection is
waived on appeal and reviewed for plain error. United States v. Zinn, 321 F.3d
1084, 1087 (11th Cir. 2003). Plain error exists when: (1) an error exists that, (2) is
plain, (3) seriously affects a defendant’s substantial rights, and (4) “seriously
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affect[s] the fairness, integrity, or public reputation of judicial proceedings.”
United States v. Acevedo, 285 F.3d 1010, 1012 (11th Cir. 2002). The plain error
standard is applicable here because, although Smith urged the district court to
consider his circumstances and consider an alternative to incarceration, he did not
make the specific claims that he currently raises on appeal.
Chapter 7 of the Sentencing Guidelines provides imprisonment ranges that a
sentencing court may follow when revoking supervised release. U.S.S.G. Ch. 7,
Pt. A., intro. (2003). A sentencing court must consider the policy statements under
Chapter 7 when imposing sentence upon the revocation of probation, but is not
bound by them because they are merely advisory. Brown, 224 F.3d at 1242. We
have repeatedly held that drug rehabilitation programs may be considered in
determining the length of a sentence imposed upon revocation of supervised
release. See Brown, 224 F.3d at 1243 (holding that the district court did not abuse
its discretion in considering the defendant’s need for drug abuse treatment in
imposing a 24-month prison sentence where the maximum of the Chapter 7
recommended range was 11 months); United States v. Wiggins, 220 F.3d 1248,
1249 (11th Cir. 2000) (concluding that the district court did not abuse its
discretion in considering the availability of drug abuse treatment in imposing a 24-
month sentence where the Chapter 7 recommended range was 3 to 9 months);
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United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000) (upholding a 24-
month sentence imposed solely for the purpose of ensuring that the defendant
undergo comprehensive drug abuse rehabilitation where the Chapter 7
recommended range was 3 to 9 months). Under U.S.S.G. § 7B1.4(a), the range of
imprisonment applicable upon revocation is determined by plotting a defendant’s
grade of violation against his criminal history category at the time of his original
sentence to a term of supervision. United States v. Milano, 32 F.3d 1499, 1501
(11th Cir. 1994) superseded on other grounds by statute as recognized in United
States v. Cook, 291 F.3d 1297, 1300 n.3 (11th Cir. 2002). Here, it is undisputed
that the guideline range applicable to Smith’s violations was 5 to 11 months’
imprisonment. See U.S.S.G. § 7B1.4(a) (2003).
Under § 3583(g), the sentencing court must revoke supervised release if a
defendant possessed a controlled substance or refused to comply with drug testing
imposed as a condition of his release. 18 U.S.C. § 3583(g). In this situation, the
statute instructs a court to impose a sentence not exceeding the maximum term of
imprisonment authorized under subsection (e)(3). 18 U.S.C. § 3583. Under
subsection (e)(3), Smith may not serve more than two years’ imprisonment. 18
U.S.C. § 3583(e)(3).
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In this case, the district court made clear on the record that it had considered
the applicable recommended sentence range under § 7B1.4, but chose to apply the
statutory maximum in order to address Smith’s substance abuse problem. Smith
does not dispute the district court’s determination that he (a) failed to complete the
drug treatment program offered by the USPO, and (b) had a severe drug problem.
It was within the court’s authority to consider the guideline range as advisory and
to consider Smith’s need for rehabilitation when determining his term of
incarceration. See Brown, 224 F.3d at 1240, 1242. Accordingly, the district court
did not commit plain error when it sentenced Smith to the two-year maximum term
of incarceration authorized under the statute.
AFFIRMED.
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