United States v. Rodney Brewer, Jr. , 693 F. App'x 220 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4002
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RODNEY BERNARD BREWER, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of West Virginia,
at Huntington. Robert C. Chambers, Chief District Judge. (3:12-cr-00109-1)
Submitted: June 6, 2017 Decided: July 21, 2017
Before TRAXLER, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christian M. Capece, Federal Public Defender, Jonathan D. Byrne, Research & Writing
Specialist, Rhett H. Johnson, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Carol A.
Casto, United States Attorney, Lisa G. Johnston, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rodney Bernard Brewer, Jr., appeals the district court’s order revoking his
supervised release and sentencing him to a twenty-one month term of imprisonment.
Brewer argues that in lieu of prison, the district court should have ordered him to
participate in an outpatient drug treatment program. For the reasons that follow, we
reject Brewer’s argument and affirm the district court.
Under 18 U.S.C. § 3583(g), a district court must revoke supervised release and
impose a term of imprisonment for a defendant who illegally possesses a controlled
substance or tests positive for such substances more than three times in one year. Brewer
has conceded that this provision applies to him. Appellant’s Br. at 8–9.
With that said, 18 U.S.C. § 3583(d) directs the district court to “consider whether
the availability of appropriate substance abuse treatment programs, or an individual’s
current or past participation in such programs, warrants an exception” from the above-
described mandatory revocation rule. Relying on 18 U.S.C. § 3583(d), Brewer asked the
district court for the opportunity to participate in an outpatient drug treatment program
(having been denied inpatient treatment opportunities due to his status as a convicted sex
offender).
The district court denied this request, reasoning that outpatient treatment would be
insufficient to restrain Brewer from endangering the community, and would potentially
be inadequate to address Brewer’s drug problems. Ultimately, the court sentenced
Brewer to a twenty-one month term of imprisonment—i.e., the bottom of the applicable
Sentencing Guideline imprisonment range.
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“We review a district court’s ultimate decision to revoke a defendant’s supervised
release for abuse of discretion.” United States v. Padgett, 788 F.3d 370, 373 (4th Cir.
2015). “We will not disturb a district court’s revocation sentence unless it falls outside
the statutory maximum or is otherwise plainly unreasonable.” Id. (internal quotation
marks omitted).
We conclude that the district court acted well within its discretion in sentencing
Brewer to prison rather than directing him to an outpatient drug treatment program. The
record in this case justifies the district court’s position that Brewer posed a threat to
community safety: Brewer had an extensive criminal history, serious drug problems, and
a record of repeated violations of conditions of supervised release. It was therefore
reasonable for the district court to send Brewer to prison, where he can be considerably
restrained, instead of an outpatient drug treatment program, where he generally would not
encounter strict supervision and structure.
Of note, the record also shows that Brewer continued to test positive for controlled
substances even after his probation officer referred him to an outpatient drug treatment
program in 2016. This evidence lends support to the district court’s skepticism regarding
the adequacy of outpatient treatment to solve Brewer’s drug problems.
Accordingly, we affirm the district court’s sentencing decision. We dispense with
oral argument because the facts and legal contentions are adequately presented in the
materials before this Court and argument would not aid the decisional process.
AFFIRMED
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