United States v. Thurlow

• Court: Court of Appeals for the First Circuit
• Decided: January 19, 1995
• Docket: 94-1785
• Status: Published

Opinion

USCA1 Opinion

United States Court of Appeals
                            United States Court of Appeals
                                For the First Circuit
                                For the First Circuit
                                 ____________________

        No. 94-1785

                                    UNITED STATES,

                                      Appellee,

                                          v.

                               FREDERICK L. THURLOW IV,
                                  A/K/A LEE MCQUADE,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                       [Hon. Gene Carter, U.S. District Judge]
                                          ___________________

                                 ____________________

                                        Before

                                Torruella, Chief Judge,
                                           ___________
                            Coffin, Senior Circuit Judge,
                                    ____________________
                              and Stahl, Circuit Judge.
                                         _____________

                                 ____________________

            Tina Schneider for appellant.
            ______________
            Margaret  D.  McGaughey, Assistant  United  States Attorney,  with
            _______________________
        whom  Jay P. McCloskey, United  States Attorney, and  John S. Gleason,
              ________________                                _______________
        Assistant United States Attorney, were on brief for appellee.

____________________

                                   January 19, 1995
                                 ____________________



Per  Curiam.   Defendant Frederick  Thurlow appeals
                      Per  Curiam.
                      ____________

            from the  district court's imposition of  a special condition

            of  supervised release.   Thurlow  was sentenced  following a

            guilty  plea to  three counts  of an  eleven-count indictment

            that  alleged possession  of stolen  mail, theft  of property

            used  by the United States Postal  Service and other offenses

            resulting  from a  crime spree  engaged in  by Thurlow  and a

            coconspirator.     As  part  of  a   three-year  sentence  of

            supervised release,  the  district court  ordered Thurlow  to

            abstain from the  use or  possession of  alcohol and  illegal

            drugs  during   this  period.     Thurlow  argues   that  the

            requirement  of   total  abstinence   from  alcohol  was   an

            unwarranted abuse of discretion.  We do not agree.

                      Thurlow  argues  that  U.S.S.G.     5D1.3(b), which

            requires  that special  conditions  imposed by  the court  be

            "reasonably related  to the  nature and circumstances  of the

            offense   and  the   history   and  characteristics   of  the

            defendant," does not authorize  the type of special condition

-2-
                                          2



imposed.1  Specifically, Thurlow  claims that he exhibited no

            particular attributes warranting the condition imposed.  

                      Thurlow  argues too  much.   Thurlow  comes from  a

            family with an active history of alcohol abuse and his record

            indicated  that substance  abuse was  and continued  to be  a

            serious problem for him.   Indeed, Thurlow's counsel admitted

            as  much in  the presentence  conference before  the district

            court.  Cf. United  States v. Ruiz-Garcia, 886 F.2d  474, 476
                    ___ ______________    ___________

            (1st   Cir.  1989)   (concessions  voluntarily   made  during

            sentencing   cannot   be   withdrawn   absent   extraordinary

            circumstances).   Moreover,  the record reveals  that Thurlow

            used proceeds  from the  crime spree  to purchase  alcohol on

            several  occasions.     The  district  court   gave  thorough

            consideration  to the  defendant's  history  in reaching  its

            decision to  impose the  special condition.   Accordingly, we

____________________

            1.  U.S.S.G.   5D1.3 provides in relevant part:

                      (b)      The  court   may   impose  other
                      conditions of supervised release,  to the
                      extent    that   such    conditions   are
                      reasonably  related to (1) the nature and
                      circumstances  of  the  offense  and  the
                      history   and   characteristics  of   the
                      defendant,  and  (2)  the  need  for  the
                      sentence   imposed  to   afford  adequate
                      deterrence   to   criminal  conduct,   to
                      protect the public from further crimes of
                      the   defendant,   and  to   provide  the
                      defendant  with   needed  educational  or
                      vocational  training,  medical  care,  or
                      other correctional treatment in  the most
                      effective   manner.      18   U.S.C.     
                      3553(a)(2) and 3583(d).

                                         -3-
                                          3



find no abuse of  discretion.  See United States  v. Johnson,
                                           ___ _____________     _______

            998 F.2d  696, 699 (9th Cir. 1993) (no abuse of discretion to

            impose,  along with  other restrictions,  condition requiring

            that defendant  abstain from alcohol use  where defendant had

            history of substance abuse and  had been involved in alcohol-

            related incidents).2

                      The decision  of the  district court to  impose the

            special condition of supervised release is affirmed.3
                                                       affirmed
                                                       ________

____________________

            2.  The cases cited by  Thurlow are not apposite.   He relies
            principally on  United States v. Prendergast,  979 F.2d 1289,
                            _____________    ___________
            1292-93 (8th  Cir. 1992), in  which the  Eighth Circuit  held
            that the  district court abused its  discretion in requiring,
            inter   alia,   the   complete   abstinence   from   alcohol.
            _____   ____
            Prendergast is  off the mark,  however, because in  that case
            ___________
            there was no  evidence that  the defendant had  a history  of
            alcoholism.  Id.  See also United States v. Stoural, 990 F.2d
                         ___  ___ ____ _____________    _______
            372  (8th  Cir.  1993)  (relying on  Prendergast  to  reverse
                                                 ___________
            imposition of condition requiring abstinence from alcohol).  

            3.  In  so holding, we do not give approval to the imposition
            of  such a special  condition as a  standard practice without
            evidentiary support for it in the record.

                                         -4-
                                          4