United States v. Breland

Case: 10-60610 Document: 00511544496 Page: 1 Date Filed: 07/19/2011

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
July 19, 2011

No. 10-60610 Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,

Plaintiff–Appellee
v.

WILLIAM C. BRELAND, JR.,

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-
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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 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 F. App’x
548 (5th Cir. 2010) (per curiam) (unpublished).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

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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.

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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 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

1
United States v. Booker, 543 U.S. 220 (2005).

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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, 131 S. Ct. 2382, 2391 (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.

2
In pronouncing the sentence, the district court expressly stated that it had considered
the factors set forth in § 3553(a). Cf. United States v. Gonzalez, 250 F.3d 923, 929–30 (5th Cir.
2001) (holding, in the revocation context, that “[i]mplicit consideration of the § 3553 factors
is sufficient”) (citations omitted). Moreover, Raymond testified at the revocation hearing that
his recommended sentence, which doubtless served as the basis for the imposed sentence, was
designed not only to provide for Breland’s rehabilitative needs, but also to deter future
violations of supervised release.

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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 mandatory
revocation of supervised release pursuant to a prior version of § 3583(g). Based
upon its examination of the relevant statutory provisions, the panel held that
notwithstanding the language contained in § 3582(a), a district court is
permitted to consider the rehabilitative factors contained in § 3553(a)(2)(D)
when determining the length of the term of imprisonment imposed upon
mandatory revocation. Id. at 1097. Although the Court expressly declined to
address whether the same would be true under § 3583(e) (the discretionary-
revocation provision), id. at 1095, the reasoning in its opinion remains highly
instructive.3
In particular, the Court recognized a pivotal textual distinction between
the statute that governs the imposition of a term of imprisonment—§ 3582 (on
which Breland relies)—and the statute that governs the imposition, revocation,
and conversion into prison time of a term of supervised release—§ 3583. See id.
at 1094–95. While § 3582(a) contains a clause that expressly forbids sentencing
courts from considering a defendant’s rehabilitative needs at initial sentencing,
see Tapia, 131 S. Ct. at 2388–90, § 3583 contains no such language. Rather,

3
The holding in Giddings covers only the determination of the length of the term of
imprisonment, not the decision of whether to impose a term of imprisonment following
revocation in the first place. See id. This is because the version of § 3583(g) that was in effect
at the time required the imposition of a minimum term of imprisonment following mandatory
revocation. See, e.g., United States v. Jackson, 70 F.3d 874, 880 (6th Cir. 1995) (recognizing
that Giddings was based on an earlier version of § 3583(g) and that Congress had since
amended the statute to no longer mandate a minimum term of imprisonment). Because the
question of whether to impose a term of imprisonment was “dictated by statute,” the Giddings
Court declined to decide whether a district court may consider rehabilitative needs in
answering that question. Giddings, 37 F.3d at 1095.

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§ 3583(c) specifically requires a district court to consider the rehabilitative
factors set forth in § 3553(a)(2)(D) “in determining whether to include a term of
supervised release [at an initial sentencing], and, if a term of supervised release
is to be included, in determining the length of the term and the conditions of
supervised release.” 18 U.S.C. § 3583(c). Likewise, § 3583(e)(3), which governs
discretionary revocation, also expressly requires a district court to consider the
§ 3553(a)(2)(D) factors when deciding whether to “revoke a term of supervised
release, and require the defendant to serve in prison all or part of the term of
supervised release authorized by statute for the [underlying] offense.” 18 U.S.C.
§ 3583(e)(3). In addition, while § 3583(g), which governs mandatory revocation,
does not expressly require consideration of the § 3553(a)(2)(D) factors, it does not
prohibit the district court from doing so either. Moreover, it defines the
“maximum term of imprisonment” that may be imposed upon mandatory
revocation by reference to the term that is authorized by § 3583(e)(3). See 18
U.S.C. § 3583(g).
After noting these distinctions, the Giddings Court cited with approval
to the Second Circuit’s decision in United States v. Anderson, 15 F.3d 278 (2d
Cir. 1994), which relied on the plain language and operation of § 3583(c) and (e)
to hold that § 3582(a) does not apply to post-revocation sentencings. Giddings,
37 F.3d at 1095 (citing Anderson, 15 F.3d at 282). The Court also quoted from
the key passage in Anderson:
Far from explicitly contemplating the applicability of 18 U.S.C.
§ 3582 . . . , 18 U.S.C. § 3583 appears to contemplate that the
limitations will not apply and that such factors as the medical and
correctional needs of the defendant may be considered by a district
court. Upon revocation a district court may “require the person to
serve in prison all or part of the term of supervised release without

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credit for time previously served on postrelease supervision.” Thus,
the statute contemplates that a district court may require a person
to serve time in prison equal to the length of the term of supervised
release. In determining the length of a period of supervised release,
it will be recalled, a district court may consider such factors and the
medical and correctional needs of the offender. Because those
factors may be considered in determining the length of a period of
supervised release and because a district court may require a person
to serve in prison the period of supervised release, the statute
contemplates that the medical and correctional needs of the offender
will bear on the length of time an offender serves in prison following
revocation of supervised release. We conclude, therefore, that a
court may consider an offender’s medical and correctional needs
when requiring that offender to serve time in prison upon the
revocation of supervised release.
Id. at 1095 n.15 (quoting Anderson, 15 F.3d at 282) (citations and footnotes
omitted in Anderson); see also id. at 1095 (“The Anderson majority reasoned
that because the defendant’s need for rehabilitation or medical care must be
considered in fashioning the initial term of supervised release, a fortiori these
factors may also be considered in fashioning a sentence upon revocation of
supervised release.”). The Giddings Court then applied this reasoning to the
mandatory-revocation context and determined that, in light of the structure,
operation, and purposes of § 3583 as explained in Anderson, there was no
justification for interpreting the earlier version of § 3583(g) differently from
§ 3583(c) and (e). See id. at 1096. The Court concluded:
When revoking supervised release the district judge is not
resentencing the defendant. The type and the term of the sentence
has already been determined by the sentencing judge. The
supervising district judge is bound by the sentence previously
imposed, and at revocation is merely converting all or a portion of
the supervised release period into a term of imprisonment. Given
the limited discretion available to the supervising district judge, and

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the fact that the sentencing range is fixed by statute, consideration
of the § 3553(a) factors may be appropriate to fashion a sentence
conforming to the purpose and intent of the original sentence, and
that is within the boundaries established by the sentencing judge.
Id. at 1096.
This logic remains compelling today, and it comports with the structure
and language of the relevant statutory provisions. Further, all of our sister
circuits that have addressed this issue have uniformly held that § 3582(a)’s
limitation does not apply to post-revocation sentencings under § 3583(e) or (g).
See United States v. Doe, 617 F.3d 766, 771–74 (3d Cir. 2010); United States v.
Tsosie, 376 F.3d 1210, 1214–17 (10th Cir. 2004); United States v. Brown, 224
F.3d 1237, 1241–42 (11th Cir. 2000); United States v. Jackson, 70 F.3d 874,
879–81 (6th Cir. 1995); see also United States v. Thornell, 128 F.3d 687, 688–89
(8th Cir. 1997) (holding, without citing to § 3582(a), that a district court may
consider § 3553(a)(2)(D) when fashioning a post-revocation sentence).4
Lastly, we note that in its recent decision in Tapia, the Supreme Court
justified its interpretation of § 3582(a) by highlighting “the absence of any
provision [in § 3582(a)] granting courts the power to ensure that offenders
participate in prison rehabilitation programs.” 131 S. Ct. at 2390. The Court
then compared that “statutory silence” to several other provisions in the
Sentencing Reform Act of 1984 (“SRA”) where there was no such silence. Id.
Relevant to this case, the Court specifically pointed to § 3583(c) as one such

4
But see United States v. Yehuda, 238 F. App’x 712, 713 (2d Cir. 2007) (unpublished)
(vacating a post-revocation sentence in part because the stated reason for the sentence was
to qualify the defendant for an in-prison drug-treatment program). We agree with the Third
Circuit that because Yehuda contains almost no analysis and does not cite to its own contrary
prior circuit precedent in Anderson, it has no persuasive weight. See Doe, 617 F.3d at 773 n.8
(remarking that the Yehuda holding is of questionable value).

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provision where Congress clearly “wanted sentencing courts to take account
of rehabilitative needs.” Id.
Therefore, given the plain language of the statute, the uniformity in the
circuits, and the above discussion in Tapia, we see no reason why we should
abandon the reasoning and holding in Giddings in either the mandatory- or
discretionary-revocation contexts.5
Alternatively, Breland argues that the district court lacked sufficiently
reliable information about the 500-hour drug-treatment program when it
imposed the sentence, rendering the sentence procedurally unreasonable. He
concedes, however, that he failed to object in the district court on this ground
and that this argument is thus subject to plain-error review. United States v.
Villegas, 404 F.3d 355, 358 (5th Cir. 2005). “This Court finds plain error when:
(1) there was an error; (2) the error was clear and obvious; and (3) the error
affected the defendant’s substantial rights.” Id. at 358–59 (citing United States
v. Olano, 507 U.S. 725, 732–37 (1993)).
At the revocation hearing, the district court advised Breland that the
BOP’s 500-hour drug-treatment program would be available to him, and the
record clearly shows that the court determined whether the program would be

5
In Giddings, the Court implied—in dicta—that § 3582(a) allows a court to lengthen,
but not impose, a prison term based on the need for rehabilitation. See 37 F.3d at 1094, 1096.
Breland argues on appeal that the distinction between the decision to impose a term of
imprisonment in the first place and the determination of the length of that term should also
apply to post-revocation sentencing under § 3583. In Tapia, however, the Supreme Court
found that there was no such distinction for purposes of § 3582(a). See 131 S. Ct. at 2391
(“Section § 3582(a) precludes sentencing courts from imposing or lengthening a prison term
to promote an offender’s rehabilitation.” (emphasis added)). Breland has presented no other
argument for why we should recognize such a distinction for purposes of supervised release,
and there is no basis for one in the text of § 3583. Thus, we reject his argument.

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available to Breland based on Raymond’s discussions with Bureau of Prison
personnel, which occurred within two weeks prior to the hearing. Breland
characterizes this basis as insufficiently reliable, but he does not specify any
legal authority in support of his argument. Moreover, we have previously
upheld a post-revocation sentence that included the same recommendation in
the revocation order. See United States v. Pena, 125 F.3d 285 (5th Cir. 1997).
Therefore, we find that Breland has failed to show that the district court
committed a significant procedural error.
B. Substantive Reasonableness
Having determined that Breland’s revocation sentence was procedurally
reasonable, we turn next to his contention that his sentence was substantively
unreasonable. The parties do not dispute that Breland’s statutory maximum
sentence on revocation was two years for each count of conviction, see 18 U.S.C.
§ 3583(b) and (e), and that the advisory Guidelines sentence was six to twelve
months for each count of conviction. See U.S.S.G. § 7B1.4(a). As Breland
received a sentence of five months of imprisonment for each count of conviction,
his sentence was below the recommended range. A below-Guidelines sentence
is presumptively reasonable. United States v. Lopez-Velasquez, 526 F.3d 804,
809 (5th Cir. 2008).
Breland characterizes the imposed sentence as a thirty-five-month term
of imprisonment that exceeds the recommended Guidelines range. We have held
that when the policy statements in the Guidelines are silent as to the decision
of whether to run multiple sentences concurrently or consecutively, the district
court has statutory discretion to make the decision. United States v. Gonzalez,
250 F.3d 923, 929 n.8 (5th Cir. 2001); see also 18 U.S.C. § 3584(a) (authorizing

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a district court to impose multiple terms of imprisonment concurrently or
consecutively). In addition, we have specifically held that a sentencing court has
the authority to impose consecutive sentences upon revocation of concurrent
terms of supervised release. See Gonzalez, 250 F.3d at 929. Therefore, the
district court in this case acted within its discretion.
Because Breland has failed to present any other argument for why his
sentence is substantively unreasonable, we find that he has not overcome the
presumption that his below-Guidelines sentence was reasonable.
IV. CONCLUSION
We conclude that, under § 3583, a sentencing court may consider a
defendant’s need for drug rehabilitation when revoking a term of supervised
release and converting it into prison time. We also conclude that the sentence
imposed in this case is reasonable. Therefore, we affirm.
AFFIRMED.

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