United States v. Andre Price
United States v. Andre Price
Opinion
*748
The district court revoked Andre Price's supervised release for a second time and sentenced him to 24 months of imprisonment to be followed by a 12-month term of supervised release. Price appeals his sentence, arguing that it was substantively unreasonable to have imposed a term of incarceration rather than ordering residential inpatient substance abuse treatment. Price also contends that the new term of supervised release was procedurally unreasonable because it exceeded the maximum length permitted by
I.
Andre Price pleaded guilty to one of four counts of bank robbery and was sentenced to 60 months of imprisonment to be followed by three years of supervised release. Price completed that custodial sentence and began his first term of supervised release on July 21, 2017. Two urine samples collected the next week tested positive for cocaine, and Price admitted that he had used crack cocaine over the weekend of July 22, 2017. At the recommendation of the probation officer, however, the district court took no action with respect to those violations of the conditions of his supervised release.
But when Price tested positive for cocaine use twice more on July 28 and August 7, the probation officer recommended revocation in a petition filed on August 11, 2017. During the first revocation hearing, Price admitted using cocaine prior to those dates and pleaded guilty to violating two conditions of his supervised release. Through counsel, Price asked that he be allowed to participate in inpatient substance abuse treatment in lieu of incarceration. In support of that request, Price submitted a letter from the intake coordinator for the Salvation Army Adult Rehabilitation Center in Grand Rapids, Michigan, which stated that Price would be a "good fit" for their inpatient alcohol and drug rehabilitation program. Given Price's admitted "Grade B" violation and his criminal history category of VI, his applicable policy-statement Guidelines range was 21 to 24 months of imprisonment. See USSG § 7B1.4 (Policy Statement). 1 The district court considered alternative sentencing options, revoked Price's supervised release, *749 and imposed a substantially below-Guidelines sentence of two months of imprisonment to be followed by a 34-month term of supervised release. The conditions of Price's supervised release were the same as before, with an additional requirement that Price spend six months in a halfway house. Price served that custodial sentence and began his new term of supervised release on October 17, 2017.
Two weeks later, on October 29 and 30, Price violated the conditions of his supervised release by: (1) being absent from the halfway house overnight without permission; (2) possessing crack cocaine in violation of state law; and (3) using crack cocaine in violation of the terms of his supervised release. Although drug testing was not performed, Price admitted all three violations during the revocation hearing held November 13, 2017. Price again argued for substance abuse treatment in lieu of incarceration.
The record confirms that the district court considered that to be an option but denied the request as inappropriate under the circumstances. Having admitted a "Grade B" violation, the applicable policy-statement Guidelines range was again 21 to 24 months of imprisonment. After considering the relevant sentencing factors, the district court revoked Price's supervised release for a second time and imposed the sentence that is at issue in this appeal: a 24-month term of imprisonment to be followed by a new 12-month term of supervised release. The district court imposed the same conditions of supervised release as before-including six months in a halfway house-but added the possibility that Price could substitute inpatient substance abuse treatment for time in the halfway house "on a month-for-month basis." Defense counsel indicated that there were no other objections, and this appeal followed.
II.
Sentences imposed following the revocation of supervised release are reviewed for procedural and substantive reasonableness under the same abuse-of-discretion standard that applies to post-conviction sentences.
United States v. Bolds
,
Although a defendant need not raise a substantive reasonableness claim in the district court to preserve it for appeal, a claim of procedural error is reviewed for plain error if the defendant fails to object when properly invited at the conclusion of the sentencing hearing.
See
United States v. Vonner
,
A. Procedural Unreasonableness
"When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment, the court may include a requirement that the defendant be placed on a term of supervised release after imprisonment."
Questions of statutory interpretation are reviewed
de novo
, and our starting point must be the statutory language itself.
Brown
,
When the word "any" is properly read in its § 3583(h) statutory context, Webster's Third New International Dictionary provides that the word "any" means "all." See id. at 97 (2d ed. 1981). Specifically, Webster's ... provides that when the word "any" is "used as a function word to indicate the maximum or whole of a number or quantity," ... the word "any" means "all." Id.
United States v. Maxwell
,
We agree that "the word 'any' in the phrase 'less
any
term of imprisonment that was imposed upon revocation of supervised release,' ... is obviously used as a function word to indicate the maximum or whole of a number or quantity[.]"
Here, in calculating the maximum term of supervised release, the district court correctly identified 36 months as the maximum term of supervised release authorized for the underlying bank robbery
*751
offense.
See
For this error to be "plain," it must be "clear or obvious, rather than subject to reasonable dispute."
Puckett v. United States
,
B. Substantive Unreasonableness
Price also contends that his 24-month term of imprisonment was substantively unreasonable because he was a candidate for and would have benefitted from inpatient substance abuse treatment in lieu of incarceration. We find no abuse of discretion.
A district court may "revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute" after considering the relevant sentencing factors.
[t]he 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.
Price argues that it was substantively unreasonable for the district court to find that concerns about public safety, accountability, and breach of trust outweighed the "legitimate societal and personal benefits of providing [him with] intensive substance abuse treatment." (Def's Bf., p. 10.) In fact, before imposing a sentence of incarceration, the district court identified relevant sentencing factors, noted that substance abuse had played a role in the underlying offense, and emphasized the leniency already granted with respect to the previous drug-related violations of supervised release. Moreover, the conditions of supervised release included the possibility that Price could substitute residential substance abuse treatment for time that would otherwise be spent in a halfway house "on a month-for-month basis." A rebuttable presumption of substantive reasonableness applies to Price's within-Guidelines sentence, and his argument that the sentencing factors should have been balanced differently is not sufficient to rebut that presumption.
United States v. Ely
,
* * *
For the reasons stated, Price's 24-month term of imprisonment is
AFFIRMED
, his 12-month term of supervised release is
VACATED
, and the case is
REMANDED
for the district court to impose a new term of supervised release not to exceed the maximum permitted under
CONCURRING IN PART AND DISSENTING IN PART
ALICE M. BATCHELDER, Circuit Judge, concurring in part and dissenting in part.
If we were reviewing de novo Price's procedural-reasonableness challenge, I would join the majority's opinion without hesitation. But that challenge is before us on plain-error review, and Price cannot satisfy that standard under our precedents.
To satisfy the plain-error standard, Price needed to demonstrate "error," that is "plain" (or "obvious or clear"), that affected his substantial rights, and that "seriously affected the fairness, integrity, or public reputation of the judicial proceedings."
See
Fed. R. Crim. P. 52(b) ;
United States v. Gardiner
,
*753
United States v. Al-Maliki
,
The policy-statement Guidelines for Price's Grade B violation and criminal history category of VI would have been 21 to 27 months of imprisonment, except that the statutorily authorized maximum term of imprisonment for Price's original offense was 2 years (making the range 21 to 24 months).
See
USSG § 7B1.4(a) and (b)(3)(A) ;
The government concedes that this constitutes plain error. (Gov't Bf., p. 14.)
Thus, it is not necessary to consider the government's assertion for the first time on appeal that the discretion restored by § 3583(d) only applies when the revocation at hand was itself based on a failed drug test.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Andre Lamar PRICE, Defendant-Appellant.
- Cited By
- 22 cases
- Status
- Published