imprisonment. See 18 U.S.C. § 3583 (g); see also
U.S.S.G. § 7B1.4 cmt. n. 5. However, 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 3 583(g) when considering any action
against a defendant who fails a drug test. See 18 U.S.C. § 3583 (d);
See also U.S.S.G§ 7B1.4 cmt. n. 6.
4. Although the Sentencing Guidelines' treatment of revocation of
supervised release is advisory rather than mandatory, as noted
previously, these policy statements are one of the factors the court shall
consider in addressing modification of supervised release. See United
States v. Schwegal, 126 F.3d 551 (3d Cir. 1997) (holding that supervised
release provisions remained advisory after amendments to
18 U.S.C. § 3583).
5. The Probation Office's petition, as well as evidence presented at
the hearing, established by a preponderance of the evidence that
defendant has violated several conditions of his supervised release.
6. Each such violation constitutes a Grade C violation. See U.S.S.G.
§ 7B1.1 (a)(3).
7. Taken together, these violations constitute a Grade C violation
pursuant to U.S.S.G. § 7B1.1(b).
8. The court may, upon a finding of a Grade C violation, revoke
supervised release, extend the term of supervised release, and/or modify
the conditions of supervision. Id. at § 7B1.3 (a)(2). Revocation of
supervised release generally is the appropriate disposition in the case
of a Grade C violation by a defendant who, having been continued on
supervision after a finding of violation, again violates the conditions
of his supervision. Id. at § 7B1.3 cmt. n. 1.
9. The court is required to revoke supervised release and impose a
sentence that includes a term of imprisonment under 18 U.S.C. § 3583
(g) and U.S.S.G. § 7B1.4 cmt. nn.5-6, because the defendant violated
a condition of supervised release by possessing a controlled substance
and because the court finds that an exception from the rule of section
3583(g) is not warranted in light of the defendant's recent
unsucceasfial participation in drug treatment at the Community Treatment
10. The defendant's original offense is a Class B felony, his
violations are Grade C, and his Criminal History Category is VI.
Accordingly, if the court revokes supervised release, the recommended
range of imprisonment under the Guidelines is eight to fourteen months,
and the statutory maximum term of imprisonment upon revocation is three
years. U.S.S.G. § 7B 1.4; U.S.C. § 3583(e)(3).
11. Upon consideration of 18 U.S.C. § 3553 (a), the court revokes
the defendant's supervised release and imposes a sentence of eight months
of imprisonment. The court does not impose a further term of supervised
release following the conclusion of this sentence.
An appropriate Order follows.
AND NOW, this 15th day of March, 2002, upon consideration of the
Petition for Revocation of Probation, as twice amended, the Government's
Proposed Findings of Fact and Conclusions of Law, and after a hearing, it
is hereby ORDERED that the petition is GRANTED as follows:
1. The defendant's supervised release is REVOKED;
2. The defendant is committed to the custody of the
Bureau of Prisons for a term of eight (8) months;
3. There shall be no further supervised release after
defendant's release from imprisonment.
4. Defendant is remanded to the custody of the United
© 1992-2003 VersusLaw Inc.