United States v. Keith Bell , 483 F. App'x 804 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4912
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEITH BELL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:05-cr-00452-HEH-1)
Submitted: May 31, 2012 Decided: June 13, 2012
Before WILKINSON, NIEMEYER, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Paul G. Gill, Assistant Federal Public Defenders,
Richmond, Virginia, for Appellant. Olivia L. Norman, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Keith Bell appeals the district court’s order revoking
his supervised release and sentencing him to twenty-four months
of imprisonment. Counsel has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), certifying that there
are no meritorious issues for appeal but questioning whether the
district court failed to recognize and exercise its discretion
to exempt Bell from the mandatory revocation and imprisonment
directed by 18 U.S.C. § 3583(g) (2006). See 18 U.S.C.
§ 3583(d). In his pro se supplemental brief, Bell suggests that
the district court erroneously determined that he had failed to
successfully complete a drug treatment program. We affirm.
Generally, we review a district court’s judgment
revoking supervised release and imposing a term of imprisonment
for abuse of discretion. United States v. Pregent, 190 F.3d
279, 282 (4th Cir. 1999). However, because Bell did not object
to the district court’s revocation of his supervised release, we
review for plain error. United States v. Olano, 507 U.S. 725,
731-32 (1993). To satisfy the plain error standard, an
appellant must show: “(1) an error was made; (2) the error is
plain; and (3) the error affects substantial rights.” United
States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009).
Even if Bell satisfies these requirements, correction of the
error is appropriate only if we conclude that the error
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“seriously affects the fairness, integrity or public reputation
of judicial proceedings.” Id. at 343 (internal quotation marks
omitted).
Under § 3583(g), a district court must revoke
supervised release and impose a term of imprisonment for a
defendant who violates the terms of his supervised release by
illegally possessing a controlled substance or testing positive
for such substances more than three times in one year. However,
“when considering any action against a defendant who fails a
drug test,” § 3583(d) requires the 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 mandatory
revocation and imprisonment directed by § 3583(g). See United
States v. Hammonds, 370 F.3d 1032, 1038 (10th Cir. 2004).
Here, the record demonstrates that the district court
acknowledged and exercised its discretion under § 3583(d). The
court heard counsel’s submissions regarding possible non-
custodial dispositions during Bell’s revocation hearing, but
indicated that Bell’s chronic history of drug abuse all but
ruled out such options as appropriate. See United States v.
Kaniss, 150 F.3d 967, 968-69 (8th Cir. 1999). Further, the
district court did not cite a statutory imperative for its
disposition, focusing instead on Bell’s consistent inability to
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succeed in drug treatment programs and his lengthy criminal
history as counseling for revocation and imprisonment. See
United States v. Crace, 207 F.3d 833, 835 (6th Cir. 2000). The
record also belies Bell’s suggestion that he has in fact fully
and successfully completed a drug treatment program. Therefore,
we find no error, plain or otherwise, in the revocation of
Bell’s supervised release and the imposition of his twenty-four
month sentence.
In accordance with Anders, we have reviewed the record
and have found no meritorious issues for appeal. We therefore
affirm the judgment below. This court requires that counsel
inform Bell, in writing, of his right to petition the Supreme
Court of the United States for further review. If Bell requests
that a petition be filed, but counsel believes that such a
petition would be frivolous, counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Bell. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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