U.S. v. Oliver, 90-5387MN
| Citation | 931 F.2d 463 |
| Decision Date | 18 April 1991 |
| Docket Number | No. 90-5387MN,90-5387MN |
| Parties | UNITED STATES of America, Appellee, v. Terrell Leonard OLIVER, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Craig S. Davis, Minneapolis, Minn., for appellant.
Jeffrey S. Paulsen, Minneapolis, Minn., for appellee.
Before MAGILL, BEAM and LOKEN, Circuit Judges.
Terrell Leonard Oliver appeals from the sentence imposed on him by the district court 1 after he violated the terms of his supervised release. In a case of first impression, Oliver challenges the use of drug test results to revoke his release. He also challenges the length of his sentence and the amount of credit he received for time served. Following the Seventh and Ninth Circuits, we affirm the drug testing requirement. We also affirm the sentence, and dismiss without prejudice the claim on credit for time served.
After Oliver was convicted of possessing stolen mail, the district court, on June 2, 1989, sentenced him to fourteen months' imprisonment to be followed by thirty-six months of supervised release. Because Oliver's crime was motivated in part by his drug dependency, two of the conditions of his supervised release were that he complete a drug testing program and that he submit to drug testing by his probation officer.
After his release from prison, Oliver violated the conditions of his supervised release many times. In particular, Oliver tested positive for cocaine and THC on numerous occasions. Furthermore, he repeatedly failed to show up for his treatment sessions.
After a hearing, on July 24, 1990, the district court found that Oliver had breached the conditions of his supervised release. The district court also found that Oliver had possessed controlled substances. Based on these findings, the district court revoked Oliver's supervised release and sentenced him to eighteen months' imprisonment. The district court recommended that the sentence be served at a federal medical facility, where Oliver could receive drug treatment.
Oliver first argues that the results of his drug tests should have been excluded from his supervised release revocation hearing because the drug tests constituted an unreasonable search in violation of the fourth amendment. Although this court has not addressed the precise issue Oliver raises, we have concluded that "[p]ersons convicted of crimes, including prisoners, probationers and parolees, while retaining some fourth amendment rights, are subject to greater restrictions on their freedom than ordinary individuals." Tyler v. Barton, 901 F.2d 689, 691 (8th Cir.1990) (per curiam). Two of our sister circuits have expressly held that the drug testing of a probationer does not violate the fourth amendment where the probationer has a history of drug abuse. See United States v. Duff, 831 F.2d 176, 179 (9th Cir.1987); United States v. Williams, 787 F.2d 1182, 1186 (7th Cir.1986) (per curiam).
In this case, at the time of Oliver's original fourteen-month sentence, he admitted that he was a drug addict who stole checks from the mail to finance his addiction. Drug testing as a condition of supervised release was appropriate under these circumstances. Therefore, the drug tests did not violate Oliver's fourth amendment rights and the district court properly considered their results in deciding to revoke his supervised release.
Oliver next argues that because the sentence imposed on revocation of his supervised release, eighteen months, was longer than the fourteen-month sentence for his underlying conviction, the sentence on revocation was unreasonable. In making this argument, Oliver assumes that the sentencing guidelines applicable to his conviction for possession of stolen mail apply to his sentence on revocation as well. Oliver is incorrect. In fact, there are no binding guidelines addressing the sentence for a violation of a condition of supervised release, only a policy statement about a court's options in such a situation:
(a) Upon a finding of a violation of supervised release involving new criminal conduct, other than criminal conduct constituting a petty offense, the court shall revoke supervised release.
(b) Upon a finding of a violation of supervised release involving conduct other than conduct under subsection (a), the court may: (1) revoke supervised release; or (2) extend the term of the supervised release and/or modify the conditions of supervised release.
U.S.S.G. Sec. 7A1.3, p.s. (No...
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