UNITED STATES COURT OF APPEALS
Filed 11/2/95
TENTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) No. 95-1024
v. ) (D.C. No. 92-CR-169)
) (D. Colo.)
SCOTT FITZPATRICK, )
)
Defendant-Appellant. )
ORDER AND JUDGMENT*
Before SEYMOUR, Chief Judge, McKAY and HENRY, Circuit Judges.
Appellant Scott E. Fitzpatrick appeals from the district
court’s order revoking his parole and sentencing him to
imprisonment and supervised release. He argues that the district
court exceeded its authority in setting the conditions of
probation.1 We affirm.
Probation determinations are reviewed for abuse of
discretion. United States v. Jalilian, 896 F.2d 447, 448 (10th
*
This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation
of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of the court’s General
Order filed November 29, 1993. 151 F.R.D. 470.
1
After examining the briefs and appellate record, this panel
has determined unanimously that oral argument would not
materially assist the determination of this appeal. See Fed. R.
App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore
ordered submitted without oral argument.
Cir. 1990). Where, as here, no objection is raised to a special
condition of probation at sentencing, our review is for plain
error. United States v. Ballard, 16 F.3d 1110, 1114 (10th Cir.
1994), cert. denied, 114 S. Ct. 2762 (1994).
Mr. Fitzpatrick offers several attacks on the district
court’s requirement that he enter a program of testing and
treatment for alcohol abuse as a special condition of probation.
First, he argues that the district court exceeded its statutory
authority. There is specific statutory authority for the
imposition of substance abuse treatment. See 18 U.S.C. §
3563(b)(10). Under the Sentencing Guidelines, a recommended
condition of probation is that the defendant “refrain from
excessive use of alcohol.” U.S.S.G. § 5B1.4(a)(7). Mr.
Fitzpatrick had two prior convictions for driving under the
influence of alcohol, and a family member testified that he could
not control his use of alcohol. At the probation revocation
hearing, Mr. Fitzpatrick’s counsel stated that “his major, and
maybe only problem in terms of probation, is a very, very serious
alcohol problem.” Supp. App., vol. 4 at 3. Mr. Fitzpatrick
himself said, “[o]bviously, I’ve had a problem with alcohol for a
long time now. In the past six months, it seems that, more or
less, I’ve been losing the control I had over it.” Id. at 5.
Given this evidence, it certainly was not plain error for the
district court to require testing and treatment as a special
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condition of probation.2
Mr. Fitzpatrick also asserts that the district court
impermissibly departed from Sentencing Guidelines requirements
when it imposed the special condition of testing and treatment,
and that 18 U.S.C. § 3553(c)(2) requires special requirements to
be justified. Section 3553(c) requires the district court to
state its reasons when a defendant is sentenced with a range of
possible sentences greater than 24 months, and when the imposed
sentence falls outside the Guidelines’ established range. United
States v. Underwood, 938 F.2d 1086, 1088 (10th Cir. 1991), cert.
denied, 113 S. Ct. 3043 (1993). In this case, the Guideline
range was from zero to six months, a range from which the
district court specifically declined to depart. Consequently,
the district court did not err in declining to provide further
justification.
Mr. Fitzpatrick next argues that the district court abused
its discretion when it ordered him to pay all costs associated
with his treatment for alcohol abuse. He relies upon United
States v. Corral, 964 F.2d 83 (1st Cir. 1992), which determined
2
Mr. Fitzpatrick also argues that the district court erred
in prohibiting the use of alcohol as a special condition of
probation. The district court “may modify, reduce, or enlarge
the conditions of a sentence of probation at any time prior to
the expiration or termination or the term of probation.” 18
U.S.C. §3563(c). Given Mr. Fitzpatrick’s admission at the
hearing, the district court’s prohibition on any use of alcohol
did not constitute plain error.
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that the Sentencing Guidelines do not permit the imposition of
“an additional fine to meet the cost of supervised release . . .
where the defendant is indigent.” Id. at 83. Even if the costs
of treatment constitute a fine under Corral and our decision in
United States v. Labat, 915 F.2d 603 (10th Cir. 1990), however,
Mr. Fitzpatrick has not established that he cannot pay these
costs. See United States v. Doyan, 909 F.2d 412, 414-15 (10th
Cir. 1990). The transcript of the probation revocation hearing
contains the following statement by Mr. Fitzpatrick: “On the
advice of my counselor, Scott Powers, about a month ago, I
started seeking a more intensive program, and I have found
Arapahoe House, something that is affordable for me, and also,
that can give me the counseling I feel I need,. . . .” Supp.
App., vol. 4 at 5 (emphasis added). Under these circumstances,
it was not plain error for the district court to order Mr.
Fitzpatrick to pay the costs of his alcohol abuse treatment.
Finally,3 relying on 18 U.S.C. §§ 4244 and 4247, Mr.
Fitzpatrick argues that the district court erred in failing to
order that he be examined by a licensed practitioner before he
received alcohol abuse treatment. However, section 4244 is not
applicable here; it refers to a convicted defendant “suffering
3
Mr. Fitzpatrick introduces additional arguments in his
reply. Because “appellate courts will not entertain issues
raised for the first time on appeal in an appellant’s reply,” we
decline to reach these arguments. Headrick v. Rockwell Int’l
Corp., 24 F.3d 1272, 1277-78 (1994).
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from a mental disease or defect for the treatment of which he is
in need of custody for care or treatment in a suitable facility.”
18 U.S.C. § 4244(a). Although Mr. Fitzpatrick points to language
from section 4247 referring to “drug, alcohol, and other
treatment programs,” this language defines “rehabilitation
program,” a term not used in section 4244. Id. at §
4247(a)(1)(C). Accordingly, his argument is not supported by the
statutes to which he points. Moreover, the admissions by Mr.
Fitzpatrick and his lawyer plainly support the court’s decision
to order him to participate in testing and treatment for alcohol
abuse.
The matter is unabated. AFFIRMED. The mandate shall issue
forthwith.
ENTERED FOR THE COURT
Stephanie K. Seymour,Chief Judge
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