USA v. Hernandez, No. 08-40127 (5th Cir. 2008)
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 08-40127 Summary Calendar October 28, 2008 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. ROEL ERNESTO HERNANDEZ, JR Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas (06-CR-1445) Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges. PER CURIAM:* Roel Ernesto Hernandez, Jr., appeals from the judgment revoking supervised release pursuant to 18 U.S.C. § 3583(g) and sentencing him to 24 months of imprisonment. We affirm. Section 3583(g) provides for mandatory revocation of supervised release if the defendant tests positive for illegal controlled substances more than 3 times over the course of 1 year. Prior to revocation, Hernandez failed four drug tests and absconded from an inpatient drug abuse treatment program. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 08-40127 Nevertheless, he contends that the district court failed to consider alternatives to revocation and incarceration as required by 18 U.S.C. § 3583(d),1 thereby imposing an unreasonable sentence. The court considered and rejected Hernandez s arguments for alternatives to imprisonment and concluded that incarceration was appropriate in light of Hernandez s unabated addiction and need for the more intense drug treatment program available in prison. The court was permitted to impose the statutory maximum sentence of 24 months.2 The court committed no error, plain or otherwise, and Hernandez s sentence is neither unreasonable nor plainly unreasonable.3 AFFIRMED. 1 Section 3583(d) provides in relevant part: The court shall consider whether the availability of appropriate substance abuse treatment programs, or an individual's current or past participation in such programs, warrants an exception in accordance with United States Sentencing Commission guidelines from the rule of section 3583(g) when considering any action against a defendant who fails a drug test. 2 See 18 U.S.C. § 3583(e)(3) ( . . . except that a defendant whose term is revoked under this paragraph may not be required to serve on any such revocation more than . . . 2 years in prison if [the offense that resulted in the term of supervised release] is a class C or D felony. ); U.S. v. Ferguson, 369 F.3d 847, 850-51 (5th Cir. 2004) ( When a defendant violates a condition of his supervised release, a court may choose to (1) impose the maximum sentence of incarceration allowed under § 3583(e)(3); (2) order home detention as an alternative to incarceration under § 3583(e)(4); or (3) order an incarceration term less than the maximum allowable term and reimpose a term of supervised release under § 3583(h). ). 3 See U.S. v. McKinney, 520 F.3d 425, 428 (5th Cir. 2008). 2
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