U.S. v. Breland

• Citation: 647 F.3d 284
• Decision Date: 19 July 2011
• Docket Number: No. 10–60610.,10–60610.
• Parties: UNITED STATES of America, Plaintiff–Appelleev.William C. BRELAND, Jr., Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

647 F.3d 284

UNITED STATES of America, Plaintiff–Appellee
v.
William C. BRELAND, Jr., Defendant–Appellant.

No. 10–60610.

United States Court of Appeals, Fifth Circuit.

July 19, 2011.

[647 F.3d 285]

Gaines H. Cleveland, Annette Williams, Asst. U.S. Attys., Gulfport, MS, for Plaintiff–Appellee.Ellen Maier Allred, Asst. Fed. Pub. Def., Gulfport, MS, for Defendant–Appellant.Appeal from the United States District Court for the Southern District of Mississippi.Before DAVIS, PRADO and OWEN, Circuit Judges.EDWARD C. PRADO, Circuit Judge:

The question presented in this appeal is whether a district court may consider a defendant's rehabilitative needs when revoking the defendant's supervised release and requiring him to serve the remainder of his sentence in prison. The district court sentenced the defendant, William C. Breland Jr., to thirty-five months of imprisonment upon revocation of his supervised release. On appeal, Breland challenges the procedural reasonableness of that sentence, arguing that the district court imposed it for the sole purpose of qualifying him for the Bureau of Prison's (“BOP”) 500–hour drug-treatment program. He also challenges the substantive reasonableness of the sentence. Because the plain language and operation of 18 U.S.C. § 3583(e) and (g), which governs post-revocation sentencing, permits the consideration of rehabilitative needs, and because Breland's sentence is not otherwise unreasonable, we affirm.

I. BACKGROUND

In October 2008, a jury convicted Breland of two counts of making false or fraudulent claims (18 U.S.C. § 287), one count of making false statements (18 U.S.C. § 1001), one count of theft of government funds (18 U.S.C. § 641), and three counts of mail fraud (18 U.S.C. § 1341)—all related to his fraudulent application to the Federal Emergency Management

[647 F.3d 286]

Agency for disaster-relief benefits following Hurricane Katrina. On each count, the district court sentenced Breland to twenty-four months of imprisonment and three years of supervised release, with the sentence for each count to be served concurrently. The district court also ordered Breland to pay $29,619.99 in restitution. We affirmed this judgment on appeal. See United States v. Breland, 366 Fed.Appx. 548 (5th Cir.2010) (per curiam) (unpublished).

Breland began serving his term of supervised release on February 12, 2010. On February 17, he tested positive for marijuana and entered a month-long inpatient drug-treatment program. On May 18, Probation Officer Kurt Raymond, who was assigned to Breland, petitioned the district court to revoke Breland's supervised release. The petition charged Breland with four violations of the conditions of his supervision: (1) failing to submit a timely supervision report for the month of April 2010; (2) moving from his last known address without notifying his probation officer; (3) failing to attend drug-treatment sessions and three drug tests; and (4) failing to pay restitution.

The district court held a revocation hearing on July 7. Breland did not contest the allegations in the petition, but asked for an evidentiary hearing for record purposes. The Government called Raymond as a witness. Raymond testified about the facts underlying the violations charged in the petition, including Breland's drug history, his positive test for marijuana, and his failure to abide by the drug-treatment and drug-testing conditions of his supervision. Based on these facts, Raymond recommended a sentence of five months of imprisonment on each count of conviction, with each sentence to be served consecutively, for a total of thirty-five months of imprisonment. Raymond testified that one of the reasons for his recommendation was that a thirty-five-month sentence would qualify Breland for the BOP's 500–hour drug-treatment program, which required at least thirty months in custody.

The district court revoked Breland's supervised release. The court did not specify whether the revocation was discretionary under 18 U.S.C. § 3583(e) or mandatory under 18 U.S.C. § 3583(g). Under the advisory policy statements in Chapter 7 of the Sentencing Guidelines, Breland's violations were Grade C violations. See U.S.S.G. § 7B1.1(a)(3). Because Breland's criminal-history category was IV, his advisory sentencing range was six to twelve months of imprisonment on each count of conviction. See U.S.S.G. § 7B1.4(a). The district court, in conformity with Raymond's recommendation, sentenced Breland to thirty-five months of imprisonment and three years of supervised release, and recommended that he be placed in the 500–hour drug-treatment program. Before doing so, the court confirmed with Raymond that Breland would be eligible for the program. In pronouncing the sentence, the court stated that it had considered the factors enumerated in 18 U.S.C. § 3553(a) and the advisory policy statements in the Sentencing Guidelines.

Breland appealed. He argues on appeal that his revocation sentence is procedurally and substantively unreasonable.

II. STANDARD OF REVIEW

We will affirm a sentence of imprisonment imposed upon revocation of supervised release unless it is “unreasonable” or “plainly unreasonable.” See United States v. Davis, 602 F.3d 643, 647 (5th Cir.2010) (citation omitted). We have not yet decided which of the above standards of review

[647 F.3d 287]

apply in the wake of Booker,¹ see id. at 647 n. 5 (citations omitted), and we decline to do so today because Breland's sentence passes muster under either standard.

III. ANALYSIS A. Procedural Reasonableness

Section 3553(a) requires a district court to consider certain factors in imposing a criminal sentence. See 18 U.S.C. § 3553(a). Relevant to this case, § 3553(a)(2)(D) requires the court to consider whether the sentence “provide[s] the defendant with the needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.” Breland contends, however, that 18 U.S.C. § 3582(a) precludes a district court at post-revocation sentencing from considering rehabilitative goals in determining whether to impose a sentence of imprisonment. Section 3582(a) directs that a sentencing court,

in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation.

(emphasis added). This past term, the Supreme Court settled a long-running dispute in the courts of appeals over the interpretation of this provision by holding that “Section 3582(a) precludes sentencing courts from imposing or lengthening a prison term to promote an offender's rehabilitation.” Tapia v. United States, ––– U.S. ––––, 131 S.Ct. 2382, 2391, 180 L.Ed.2d 357 (2011). Breland asserts that the district court in this case violated § 3582(a)'s proscription by imposing a sentence of imprisonment upon revocation for the sole purpose of qualifying Breland for the 500–hour drug-treatment program.

As a preliminary matter, the Government argues that the district court considered more than just Breland's rehabilitative needs in imposing the thirty-five-month sentence. Although we agree,² this argument is beside the point. It is clear from Breland's briefs that his argument on appeal is not that the district court failed to consider all of the factors in § 3553(a), but that it relied on a factor in § 3553(a) that is precluded by § 3582(a). Neither party disputes that the district court relied (at least in part) on Breland's need for drug rehabilitation in imposing the thirty-five-month sentence, and thus the question before us today is whether it was unreasonable for the district court to do so at post-revocation sentencing.

This Court has addressed this question once before. In United States v. Giddings, 37 F.3d 1091 (5th Cir.1994), a panel of this Court heard an appeal from a sentence of imprisonment that was imposed following...