United States v. Hernandez , 298 F. App'x 314 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 28, 2008
No. 08-40127
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ROEL ERNESTO HERNANDEZ, JR
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
(06-CR-1445)
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Roel Ernesto Hernandez, Jr., appeals from the judgment revoking
supervised release pursuant to 18 U.S.C. § 3583(g) and sentencing him to 24
months of imprisonment. We affirm.
Section 3583(g) provides for mandatory revocation of supervised release
if the defendant “tests positive for illegal controlled substances more than 3
times over the course of 1 year.” Prior to revocation, Hernandez failed four drug
tests and absconded from an inpatient drug abuse treatment program.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 08-40127
Nevertheless, he contends that the district court failed to consider alternatives
to revocation and incarceration as required by 18 U.S.C. § 3583(d),1 thereby
imposing an unreasonable sentence.
The court considered and rejected Hernandez’s arguments for alternatives
to imprisonment and concluded that incarceration was appropriate in light of
Hernandez’s unabated addiction and need for the more intense drug treatment
program available in prison. The court was permitted to impose the statutory
maximum sentence of 24 months.2 The court committed no error, plain or
otherwise, and Hernandez’s sentence is neither unreasonable nor plainly
unreasonable.3 AFFIRMED.
1
Section 3583(d) provides in relevant part: “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.”
2
See 18 U.S.C. § 3583(e)(3) (“ . . . except that a defendant whose term is
revoked under this paragraph may not be required to serve on any such
revocation more than . . . 2 years in prison if [the offense that resulted in the
term of supervised release] is a class C or D felony.”); U.S. v. Ferguson, 369 F.3d
847, 850-51 (5th Cir. 2004) (“When a defendant violates a condition of his
supervised release, a court may choose to (1) impose the maximum sentence of
incarceration allowed under § 3583(e)(3); (2) order home detention ‘as an
alternative to incarceration’ under § 3583(e)(4); or (3) order an incarceration
term less than the maximum allowable term and reimpose a term of supervised
release under § 3583(h).”).
3
See U.S. v. McKinney, 520 F.3d 425, 428 (5th Cir. 2008).
2