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United States v. Eric T. Holmes ( 2002 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 01-1672
    ___________
    United States of America,               *
    *
    Appellee,                   *
    * Appeal from the United States
    v.                                * District Court for the
    * District of Nebraska.
    Eric T. Holmes,                         *
    *
    Appellant.                  *
    ___________
    Submitted: October 16, 2001
    Filed: March 22, 2002
    ___________
    Before HANSEN,1 Chief Judge, McMILLIAN, and BEAM, Circuit Judges.
    ___________
    BEAM, Circuit Judge.
    After Eric T. Holmes admitted that he violated a condition of his supervised
    release by consuming amphetamine or methamphetamine, the district court2 revoked
    his supervised release and sentenced him to twenty-four months' imprisonment.
    Holmes appeals, contending that, in light of considerations set forth in 18 U.S.C. §
    1
    The Honorable David R. Hansen became Chief Judge of the United States
    Court of Appeals for the Eighth Circuit on February 1, 2002.
    2
    The Honorable Richard G. Kopf, Chief Judge, United States District Court for
    the District of Nebraska.
    3553(a) and in policy statements found within chapter 7 of the United States
    Sentencing Guidelines Manual, the court imposed an excessive sentence and thereby
    abused its discretion. We affirm.
    In determining a sentence, the court must consider various factors3 specific to
    3
    The considerations include:
    (1)      the nature and circumstances of the offense and the history
    and characteristics of the defendant;
    (2)      the need for the sentence imposed–
    (A) to reflect the seriousness of the offense, to
    promote respect for the law, and to provide
    just punishment for the offense;
    (B) to afford adequate deterrence to criminal
    conduct;
    (C) to protect the public from further crimes of
    the defendant; and
    (D) to provide the defendant with needed
    educational or vocational training, medical
    care, or other correctional treatment in the
    most effective manner;
    ....
    (4) the kinds of sentence and the sentencing range established
    for–
    ....
    (B) in the case of a violation of probation or
    supervised release, the applicable guidelines
    or policy statements issued by the Sentencing
    Commission pursuant to section 994(a)(3) of
    title 28, United States Code;
    (5) any pertinent policy statement issued by the Sentencing
    Commission pursuant to 28 U.S.C. 994(a)(2) that is in
    effect on the date the defendant is sentenced[.]
    18 U.S.C. § 3553(a).
    -2-
    the defendant and the offense, including pertinent Sentencing Guidelines policy
    statements (policy statements). 18 U.S.C. § 3553(a). The sentencing court "shall
    impose a sentence sufficient, but not greater than necessary, to comply with" the
    sentence's purposes, which are set forth in section 3553(a)(2). 
    Id. Although the
    court
    must recognize "that imprisonment is not an appropriate means of promoting
    correction and rehabilitation," the sentence purposes that the court must consider
    include promoting "respect for the law" and providing the defendant "with needed
    educational or vocational training, medical care, or other correctional treatment in
    the most effective manner." Compare 18 U.S.C. § 3582(a) with § 3553(a)(2)
    (emphasis added).
    Although a sentencing court is required to consider the policy statements,
    United States v. Hensley, 
    36 F.3d 39
    , 42 (8th Cir. 1994); United States v. Jones, 
    973 F.2d 605
    , 608 (8th Cir. 1992), it is entirely free to impose a revocation sentence
    outside of the policy statement's suggested range when, "in its considered discretion,"
    such a sentence is warranted, United States v. Carr, 
    66 F.3d 981
    , 983 (8th Cir. 1995).
    Accord United States v. Hill, 
    48 F.3d 228
    , 231 (7th Cir. 1995) (indicating that
    although it would be an abuse of discretion to ignore the policy statements, "they do
    not replace [a court's] discretion by a rule"). "[T]his circuit has consistently held that
    the policy statements in Chapter 7 of the Guidelines regarding supervised release
    violations are advisory to, rather than binding on, the district court." United States
    v. Brown, 
    203 F.3d 557
    , 558 (8th Cir. 2000).
    The court's sentencing is ultimately governed by statute rather than the policy
    statements. United States v. Grimes, 
    54 F.3d 489
    , 492 (8th Cir. 1995). Absent an
    abuse of discretion, we will not disturb a sentence imposed within the bounds of 18
    U.S.C. § 3583(e), the statutory provision detailing parameters for modification or
    revocation of supervised release. 
    Grimes, 54 F.3d at 492
    .
    -3-
    We conclude that the district court did not abuse its discretion by sentencing
    Holmes to twenty-four months' imprisonment for violating his supervised release.
    Although the applicable policy statement suggests a term of imprisonment in the
    range of six to twelve months, U.S. Sentencing Guidelines Manual § 7B.1.4(a)
    (2001), his sentence was within the maximum statutory term and the court's
    considerations were appropriate, thus satisfying the dictates of sections 3583(e)(3),
    3582, and 3553(a). E.g., 
    Hensley, 36 F.3d at 42
    .
    At the revocation hearing, before accepting Holmes' admission, the court
    discussed the policy statement's recommended sentencing range and explained the
    distinction between that sentencing scheme and the statutory sentencing scheme. The
    court also heard reports of Holmes testing positive for methamphetamine, his failure
    to attend drug treatment programs and group meetings, and his failure to complete
    community service. The court discussed its concerns about Holmes' addiction to
    methamphetamine and its belief that he could benefit from intensive drug treatment.
    Upon revoking his supervised release, the court indicated that it was imposing the
    prison term to reflect the seriousness of the violation. The court recommended "in
    the strongest possible terms" that Holmes be enrolled in the comprehensive 500-hour
    drug treatment program that is offered by the Bureau of Prisons. The government had
    previously indicated that a lesser term would not allow him to be placed in that
    program. The court also expressed its concern that Holmes "lacks the ability to deal
    with his addiction," and that if he were merely placed in "a residential situation even
    for three or four months that he's destined to fail, not because he's not trying but
    because this is a horrible, horrible thing to try to overcome." Finally, the court
    articulated its sincere hope that the twenty-four-month period of incarceration would
    act as an impetus for Holmes to overcome his addiction in that he might mature and
    internalize the cost of his addiction during that time.
    The district court's discussions demonstrate that it considered the relevant
    statutory factors, and that the sentence imposed was based on "a carefully considered
    -4-
    exercise of discretion." 
    Brown, 203 F.3d at 558
    . The court explicitly considered
    pertinent factors listed in the statute, including the policy statement's suggested
    sentence range. 
    Jones, 973 F.2d at 608
    . Also, given the nature of Holmes' violation
    and reports of his failure to attend treatment programs and group meetings as required
    by the terms of his supervised release, together with the court's recommendation that
    he participate in the 500-hour drug treatment program, the court acted with
    appropriate consideration and did not violate section 3582's mandate to recognize that
    imprisonment is inappropriate to promote correction and rehabilitation.
    Accordingly, we affirm the sentence imposed by the district court.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -5-