United States v. Seth Zimmerman

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1516
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Seth Zimmerman, *
* [UNPUBLISHED]
Appellant. *
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Submitted: April 7, 2006
Filed: April 11, 2006
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Before WOLLMAN, MURPHY and COLLOTON, Circuit Judges.
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PER CURIAM.
Seth Zimmerman appeals the sentence the district court1 imposed following
revocation of his supervised release. We affirm.
While on supervised release, Zimmerman admittedly tested positive for
methamphetamine on five different occasions. Noting the provisions of 18 U.S.C.
§ 3583(g)(4) (if defendant, as part of drug testing, tests positive for illegal controlled
substance more than 3 times over course of 1 year, court shall revoke supervised
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
release and require defendant to serve term of imprisonment), the district court
revoked Zimmerman’s supervised release and sentenced him to 18 months’
imprisonment and 18 months’ supervised release.
On appeal, Zimmerman argues that the district court failed to consider whether
he qualified for a substance-abuse treatment option as an exception to mandatory
revocation. See 18 U.S.C. § 3583(d) (court shall consider whether availability of
appropriate substance-abuse treatment programs, or individual’s current or past
participation in such programs, warrants exception in accordance with Guidelines
from rule of § 3583(g) when considering any action against defendant who fails drug
test). We reject this argument. At sentencing, the district court asked the parties for
their views as to whether they would dispute the application of the mandatory
revocation provision. Based on their responses, which revealed that Zimmerman’s
drug problem took a turn for the worse while he was at a low-security facility and
during his supervised release, and that he failed to benefit from the treatment that was
provided to him, the court imposed an 18-month prison sentence which would allow
him to participate in a long-term residential drug-treatment program while confined.
We conclude the court did not abuse its discretion. See United States v. Hammonds,
370 F.3d 1032, 1038-39 (10th Cir. 2004) (standard of review; finding no abuse of
discretion where court did not make specific ruling rejecting application of § 3583(d),
because there was no indication court did not recognize its power to grant exception:
at sentencing defendant requested order directing treatment rather than revocation,
government noted defendant’s poor record in treatment programs, and court ordered
revocation with in-prison treatment); cf. United States v. Pierce, 132 F.3d 1207, 1207-
09 (8th Cir. 1997) (remanding where district court’s statements at revocation hearing
cast doubt on whether it realized it could order drug treatment as alternative to
revocation).
Accordingly, we affirm.
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