United States v. Kenneth Porter ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-3977
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Kenneth David Porter, * [UNPUBLISHED]
*
Appellant. *
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Submitted: June 4, 1999
Filed: June 14, 1999
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Before MORRIS SHEPPARD ARNOLD, BRIGHT, and MURPHY, Circuit Judges.
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PER CURIAM.
Kenneth David Porter was previously sentenced to a total of forty-eight months
imprisonment and four years supervised release for aiding and abetting the distribution
of 6.773 grams of cocaine base. While serving his supervised release, he admitted to
violating several supervised release conditions--including testing positive three times
for marijuana use, failing to submit to urinalysis testing on four occasions, and failing
to report to an outpatient drug aftercare program for more than thirty days, resulting in
his termination from that program. The district court1 revoked Porter’s supervised
release and ordered him to serve ten months imprisonment and, upon his release from
imprisonment, to complete the remainder of his original term of supervised release
through the original supervised release termination date. Porter appeals, challenging
the reimposition of supervised release and the district court’s refusal to grant his
request for lenience by continuing him on supervised release. We affirm.
Based on the drug offense that resulted in his original term of supervised release,
Porter was subject to up to three years imprisonment upon revocation of supervised
release. See 18 U.S.C. § 3583(e)(3); 21 U.S.C. § 841(b)(1)(B)(iii); 18 U.S.C.
§ 3559(a)(2). Because the ten-month prison sentence Porter received was less than the
maximum authorized, the district court was entitled to impose additional supervised
release so long as the imprisonment and additional supervised release did not exceed
Porter’s original term of supervised release. See 18 U.S.C. § 3583(h); United States
v. St. John, 92 F.3d 761, 766 (8th Cir. 1996). The revocation sentence was proper
because it did not exceed Porter’s original four-year term of supervised release, and his
argument on appeal thus fails.
We further reject Porter’s contention that the district court erred by refusing to
show lenience, because Porter’s supervised release violations included failure to submit
urine specimens on four occasions, as well as failure to attend his drug treatment
program. See 18 U.S.C. § 3583(g)(3) (court shall revoke term of supervised release
and impose term of imprisonment if defendant refuses to comply with drug testing
imposed as condition of supervised release); United States v. Stephens, 65 F.3d 738,
741 (8th Cir. 1995).
Accordingly, we affirm.
1
The Honorable Garnett Thomas Eisele, United States District Judge for the
Eastern District of Arkansas.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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