United States v. Anthony Sherone Wiggins

220 F.3d 1248

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 2, 2000
• Docket: 99-14884
• Status: Published

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT AUGUST 2, 2000 THOMAS K. KAHN No. 99-14884 CLERK Non-Argument Calendar ________________________

D. C. Docket No. 95-00100-CR-001

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

ANTHONY SHERON WIGGINS, Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Alabama _________________________ (August 2, 2000)

Before TJOFLAT, BARKETT and HULL, Circuit Judges.

PER CURIAM: Anthony Sherone Williams appeals his twenty-four month sentence imposed

upon the revocation of his supervised release. Upon review, we affirm.

I. BACKGROUND

Wiggins pled guilty to three counts of bank robbery, in violation of 18

U.S.C. § 2113(a), and was sentenced to forty-eight months’ imprisonment and

three years’ supervised release. While Wiggins was serving the supervised release

portion of this sentence, a United States probation officer filed a petition to revoke

his supervised release contending that Wiggins violated several conditions of his

supervised release.1 A hearing was conducted on November 10, 1999 at which

Wiggins admitted these violations.

At the conclusion of the revocation hearing, the district court stated that “the

seriousness of your drug problem is reflected here in Court. And you need to be

rehoused in the Bureau of Prisons to take the comprehensive residential substance

program for a period of two years.” As a result, the district court sentenced

Wiggins to twenty-four months’ imprisonment, the maximum term allowed under

1 Specifically, the probation officer alleged that Wiggins (1) tested positive for cocaine, (2) failed to report for urinalysis, (3) associated with a person engaged in criminal activity, (4) failed to refrain from conduct or activities that would give reasonable cause to believe he had violated any criminal law, (5) failed to make restitution payments as ordered by the court, and (6) failed to report and file reports with his probation officer as directed. 2 18 U.S.C. § 3583, rather than the three to nine months recommended by chapter

seven of the United States Sentencing Guidelines (“Guidelines”). Wiggins appeals

this sentence.

II. DISCUSSION

We review the district court’s decision to exceed the sentencing range

recommended in chapter seven of the Guidelines for abuse of discretion. See

United States v. Hofierka, 83 F.3d 357, 361-62 (11th Cir. 1996). Wiggins argues

on appeal that is was inappropriate for the district court to impose a two-year

sentence solely for the purpose of ensuring that he would undergo comprehensive

drug abuse rehabilitation treatment. Specifically, he asserts that such reliance upon

a rehabilitative program for sentencing is contrary to this Court’s decision in

United States v, Harris, 990 F.2d 594 (11th Cir. 1993).

This court was faced with a similar question in United States v. Aguillard,

__ F.3d __, No. 99-13358 (11th Cir. July 5, 2000). In Aguillard, we determined

that we were not bound by our decision in Harris, because dealt with the

imposition of an initial sentence rather than the revocation of supervised release.

Further, we noted that all six of our sister circuits to address the issue concluded

that it is not improper to take the availability of rehabilitative programs into

account in deciding the length of sentence up to the maximum upon the revocation

3 of supervised release. See United States v. Anderson, 15 F.3d 278 (2d Cir. 1994);

United States v. McGhee, 85 F.3d 618 (4th Cir. 1996) (unpublished table

decision); United States v. Giddings, 37 F.3d 1091 (5th Cir. 1994); United States v.

Jackson, 70 F.3d 874 (6th Cir. 1995); United States v. Harlow, 124 F.3d 205 (7th

Cir. 1997) (unpublished table decision); United States v. Shaw, 180 F.3d 920 (8th

Cir. 1999). Accordingly, we held in Aguillard that the district court’s reliance

upon the availability of a drug treatment program in determining the sentence for

the revocation of supervised release was not plain error.

We recognize that Aguillard does not control our decision in this case

because the Aguillard court was reviewing the district court’s action for plain error,

while we review Wiggins’ sentence for an abuse of discretion.2 However, we find

the reasoning in Aguillard compelling, and conclude that the same result is

warranted under the abuse of discretion standard. Accordingly, the district court

did not abuse its discretion in considering the availability of drug treatment in

imposing a sentence exceeding that recommended by chapter seven of the

Guidelines.

III. CONCLUSION

2 The appellant in Aguillard failed to object to the grounds for the district court’s sentence in the district court, thus necessitating plain error review. Wiggins did raise this objection in the district court in this case. 4 We conclude that the district court did not abuse its discretion in considering

the availability of a residential drug treatment program in determining Wiggins’

sentence upon revocation of his supervised release.

AFFIRMED.