United States v. Thurlow

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

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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sentencing cannot be withdrawn absent extraordinary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).

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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.

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