United States v. Donavon Swanson , 301 F. App'x 576 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-3049
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United States of America *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
Donovan Walter Swanson, *
* [UNPUBLISHED]
Appellant. *
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Submitted: April 15, 2008
Filed: December 5, 2008
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Before LOKEN, Chief Judge, JOHN R. GIBSON, and MELLOY, Circuit Judges.
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JOHN R. GIBSON, Circuit Judge.
Donovan Walter Swanson appeals the district court's1 revocation of his
supervised release and imposition of sentence. We affirm the judgment.
On August 21, 2000, Swanson pleaded guilty to manufacturing and attempting
to manufacture 50 grams or more of methamphetamine in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(A). The district court sentenced Swanson to 75 months'
imprisonment, five years of supervised release, and a $100 special assessment.
1
The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
Swanson began his supervised release on November 1, 2004. Six weeks later,
Swanson tested positive for methamphetamine. Over the next eighteen months,
Swanson tested positive for methamphetamine four more times. During this time
frame, the district court modified the terms of his supervised release, requiring
additional testing. After his fifth positive test, the court ordered Swanson to provide
twice weekly urine samples for testing. These samples were negative. Swanson's
probation officer found out, however, that the hospital staff conducting the drug tests
failed to observe individuals providing urine samples, increasing the risk that
individuals could substitute someone else's urine for their own.
Swanson 's probation officer asked Swanson to come to the probation office to
have a sweat patch applied. A sweat patch is worn for two weeks, removed, and
tested for controlled substances. On July 17, 2007, Swanson came to the probation
office in Sioux City, Iowa, and an officer applied a sweat patch. Swanson returned
on July 31, and the officer removed that patch and applied a second one. The officer
told Swanson to return in two weeks to have the patch removed. Swanson did not
return, leaving a message that he did not have time to travel to Sioux City because of
his new job and that he had taken it upon himself to return to the hospital for a urine
sample.
The patch removed on July 31 tested positive for both amphetamine and
methamphetamine. After a hearing, the district court revoked Swanson's supervised
release, finding by a preponderance of the evidence that Swanson violated the terms
of his supervised release. The court sentenced Swanson to twenty-two months in
prison and twenty-four months' of supervised release thereafter.
Swanson first argues that the district court abused its discretion in revoking his
supervised release because the government failed to prove that he violated his release
conditions. He contends that the positive sweat patch test does not support the finding
that Swanson used controlled substances because there was no evidence that the
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probation officer was qualified to administer the test. He also argues that there was
a possibility that the sweat patch results were not valid because the patch could have
been contaminated. Swanson 's evidence of possible contamination is that the second
patch was falling off during his revocation proceeding.
The district court did not abuse its discretion in revoking Swanson's supervised
release. The positive sweat patch test supports the finding that Swanson used
controlled substances while on release. See United States v. Meyer, 483 F.3d 865,
869-70 (8th Cir. 2007). There is no evidence that the probation officer lacked the
qualifications to administer the sweat patch test or interpret the results. Cf. United
States v. Zubeck, 248 F. Supp. 2d 895, 897-98 (W.D. Mo. 2002) (testimony that
person administering the test was not qualified). Likewise, that Swanson's second
sweat patch was falling off during his revocation hearing, three weeks later, does not
suggest that the first patch could have been contaminated.
Next, Swanson argues that the district court abused its discretion in sentencing
him because the court failed to consider the factors set forth in 18 U.S.C. § 3553(a).
Swanson has the burden to show that his sentence should have been lower based on
those factors. United States v. Roberson, 517 F.3d 990, 994-95 (8th Cir. 2008). The
court need not state its reasons for its imposition of a sentence, so long as it is clear
from the record that the court considered the section 3553(a) factors. See id. at 994.
Here, the court discussed Swanson's multiple violations of his supervised release and
his history of drug abuse. The court commented on Swanson's failed efforts to
rehabilitate, waste of government resources and lack of candor about his drug
problem. The court's discussion satisfies us that it adequately considered Swanson's
argument and then reached a reasonable decision in sentencing Swanson.
We affirm the judgment.
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