                            CORRECTED OPINION

                                                                      [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                        FOR THE ELEVENTH CIRCUIT            U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                                AUGUST 18, 2000
                          ________________________
                                                               THOMAS K. KAHN
                                                                    CLERK
                                 No. 99-6152
                            Non-Argument Calendar
                         ________________________
                        D. C. Docket No. 92-00178-CR-1

UNITED STATES OF AMERICA,
                                                         Plaintiff-Appellee,

                                      versus

RICKEY JEAN BROWN,
                                                         Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                      for the Southern District of Alabama
                         _________________________
                               (August 18, 2000)


Before EDMONDSON, HULL and WILSON, Circuit Judges.

WILSON, Circuit Judge:


      Rickey Jean Brown appeals his twenty-four month prison sentence imposed

after his supervised release was revoked. For the reasons below, we affirm.
                               I. BACKGROUND

      In 1992, Brown was convicted of bank robbery in violation of 18 U.S.C. §

2113(a). He was originally sentenced to thirty-three months of imprisonment with

a recommendation to the Bureau of Prisons that he “be committed to an institution

where he can receive intensive substance abuse and alcohol treatment.” Brown’s

imprisonment was to be followed by three years of supervised release with the

standard conditions of supervision. One of the special conditions of Brown’s

supervised release was “[t]hat he participate in a Substance Abuse Program,

including random drug testing, as [and] when directed to do so by the U.S.

Probation Office.” He was ordered to pay a special assessment in the amount of

$50.00 and restitution in the amount of $2,676.00.

      In 1994, Brown was convicted of escaping from a federal prison and bank

robbery. For both offenses, he was sentenced to a forty-two month term of

imprisonment to be served concurrently and to be followed by a three year term of

supervised release with the standard conditions of supervision and additional

conditions to be served concurrently. He was ordered to pay restitution for the

bank robbery. The terms of imprisonment ran consecutively to his imprisonment

under his previous sentence. One of the standard conditions of supervised release


                                         2
was that Brown could not “frequent places where controlled substances are

illegally sold, used, distributed, or administered.” One of the additional conditions

of the supervised release required Brown to “submit to a drug test when ordered to

do so by the probation officer.” If the probation officer determined that it was

necessary, Brown was further required to participate in a substance abuse treatment

program.

      In 1999, while on supervised release, Brown was arrested for violating the

conditions of his release. His probation officer alleged that Brown violated (1) the

standard condition of his supervised release prohibiting him from frequenting

“places where controlled substances are illegally sold, used, distributed, or

administered” because he “tested positive for the use of marijuana from an

urinalysis” and (2) the special condition of his supervised release requiring him to

“participate in a substance abuse treatment program, including random drug

testing, as and when directed to do so by the U.S. Probation Office” because he

“failed to report to the [c]ounseling [c]enter . . . for drug and alcohol treatment and

random urinalysis” on eight specified dates. Brown signed a waiver of his right to

a revocation hearing on the charges, stating in pertinent part: “I hereby voluntarily

waive my statutory right to [] a revocation hearing and admit to the violations set

forth in the Petition [of the U.S. probation officer] approved by the Court . . . .”


                                           3
      Notwithstanding this waiver, the court held a revocation hearing and

accepted Brown’s admission of the charges. After hearing the proposals and

positions of both parties, the court ruled as follows:

      Here is what I’m going to do, whether I have jurisdiction to do it or
      not, here is what I’m going to do: I am going to impose the twenty-
      four month sentence in the Bureau of Prisons and recommend that you
      be housed in an institution where the Comprehensive Substance
      Abuse Treatment Program is available. The Probation office is [sic]
      use their best efforts to get you designated. If for any reason you are
      not designated, I direct that the Bureau of Prisons amend your
      sentence to reflect a sentence at the maximum of the Chapter 7
      guideline range of eleven months. It’s my intention that you not serve
      more than eleven months, if for any reason that the BOP cannot
      designate you, not if you have decide [sic] not to go, not if you quit,
      not if you flunk –[.]

The court sentenced Brown to imprisonment for twenty-four months with a

recommendation “strongly urg[ing] the Bureau of Prisons to make available to the

defendant the comprehensive, residential, drug treatment program.” The court

added that “[i]f the program is not available to the defendant, then the Court will

amend the 24 month sentence and sentence the defendant to not more than 11

months.” (emphasis provided).

      Brown appeals his sentence arguing that the district court abused its

discretion by departing from the Sentencing Guideline policy statements and

imposing a twenty-four month sentence for the purpose of permitting

rehabilitation.

                                           4
                                   II. DISCUSSION

      We review a district court’s decision to exceed the sentencing range in

Chapter 7 of the Sentencing Guidelines for abuse of discretion. See United States

v. Hofierka, 83 F.3d 357, 361-62 (11th Cir. 1996). We have previously held that

“it is inappropriate to imprison or extend the term of imprisonment of a federal

defendant for the purpose of providing him with rehabilitative treatment.” United

States v. Harris, 990 F.2d 594, 597 (11th Cir. 1993). In Harris, we reasoned that

“this prohibition relates only to the imprisonment part of a sentence and not to any

other terms of a sentence. In fact, the precise factors that are not to be considered

in imposing imprisonment are set forth by statute as factors to be considered in

imposing sentence.” Id. at 596 (citing 18 U.S.C. § 3553(a)(2)(D)). The

“imprisonment part of a sentence” does not include probation and supervised

release.

           According to Brown, his sentence is contrary to this precedent and Chapter

7 of the Sentencing Guidelines. However, Harris did not precisely address the

issue here–whether a court may consider the need for rehabilitation or treatment

when it imposes or arrives at the length of a term of imprisonment after a

revocation of supervised release. Moreover, the particular statutes which are

relevant in this case were not applicable in Harris. Brown’s violation of


                                            5
supervised release compels us to apply certain statutes. The relevance of these

statutes and the fact that supervised release was violated are what distinguish this

case from Harris.

       In accordance with Harris, we reaffirm that a court cannot impose an initial

incarcerative sentence for the purpose of providing a defendant with rehabilitative

treatment. See Harris, 990 F.2d at 596-97. However, based on the express

language of relevant statutes, we hold that a court may consider a defendant’s

rehabilitative needs when imposing a specific incarcerative term following

revocation of supervised release.1


      1
         See United States v. Wiggins, 11th Cir. 2000, ___F.3d___ (No. 99-14884,
August 2, 2000) (no abuse of discretion in considering drug treatment availability
when imposing sentence upon revocation of supervised release); United States v.
Aguillard, 11th Cir. 2000 ___F.3d___ (No. 99-13358, July 5, 2000) (no plain error
in considering rehabilitative treatment to determine length of sentence imposed
after revocation of supervised release); United States v. Thornell, 128 F.3d 687,
688-89 (8th Cir. 1997) (upholding sentence of imprisonment following revocation
of probation where court considered defendant’s need for treatment); United States
v. Jackson, 70 F.3d 874, 880 (6th Cir. 1995) (holding that a court “may properly
consider a defendant’s rehabilitative needs in setting the length of imprisonment
within the range prescribed by statute”); United States v. Giddings, 37 F.3d 1091,
1097 (5th Cir. 1994) (holding that a district court may “consider a defendant’s
need for rehabilitation in arriving at a specific sentence of imprisonment upon
revocation of supervised release”), superseded by statute as stated in Jackson, 70
F.3d at 880; United States v. Anderson, 15 F.3d 278, 282 (2d Cir. 1994) (holding
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”). While we agree with the foregoing holdings, we do not adopt the entire
rationales of our sister circuits. In the case at bar, we are dealing with mandatory
                                          6
Discretionary Revocation of Supervised Release

      Generally, a court has several alternatives when confronted with a violation

of supervised release.

      The court may, after considering the factors set forth in section
      3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), and (a)(6)--

      (1) terminate a term of supervised release and discharge the defendant
      released at any time after the expiration of one year of supervised
      release . . .;
      (2) extend a term of supervised release if less than the maximum
      authorized term was previously imposed, and may modify, reduce, or
      enlarge the conditions of supervised release, at any time prior to the
      expiration or termination of the term of supervised release . . . ;
      (3) 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 offense that resulted in such term of
      supervised release without credit for time previously served on
      postrelease supervision, if the court, pursuant to the Federal Rules of
      Criminal Procedure applicable to revocation of probation or
      supervised release, finds by a preponderance of the evidence that the
      defendant violated a condition of supervised release, except that a


rather than permissive revocation. However, there is no reason to treat the two
differently for purposes of our holding. Only Jackson and Giddings address
mandatory revocation. Giddings involved an old version of 18 U.S.C. § 3583(g)
which has been superseded. See Jackson, 70 F.3d at 880. Moreover, to the extent
that it permits a court to consider rehabilitative goals in arriving at the length of an
initial sentence, Jackson is arguably contrary to our holding in Harris which
precludes a court from considering a defendant’s rehabilitative needs when
imposing a prison term or extending that prison term. Compare Jackson, 70 F.3d
at 880, with Harris, 990 F.2d at 597. With regard to the issue before us, we reach
the same conclusions as our colleagues in the other circuits. However, our
reasoning is premised upon the clear and unambiguous language of the relevant
statutory provisions and our previous decisions.
                                           7
      defendant whose term is revoked under this paragraph may not be
      required to serve more than 5 years in prison if the offense that
      resulted in the term of supervised release is a class A felony, more
      than 3 years in prison if such offense is a class B felony, more than 2
      years in prison if such offense is a class C or D felony, or more than
      one year in any other case; or
      (4) order the defendant to remain at his place of residence during
      nonworking hours and, if the court so directs, to have compliance
      monitored by telephone or electronic signaling devices . . . only as an
      alternative to incarceration.

18 U.S.C. § 3583(e) (emphasis added).

      The introductory sentence of section 3583 expressly requires a court to

consider 18 U.S.C. § 3553 which enumerates the “factors to be considered in

imposing a sentence.” It provides:

      (a) Factors to be considered in imposing a sentence.--The court shall
      impose a sentence sufficient, but not greater than necessary, to comply
      with the purposes set forth in paragraph (2) of this subsection. The
      court, in determining the particular sentence to be imposed, shall
      consider--
      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant;
      (2) the need for the sentence imposed--
      (A) . . .
      (B) to afford adequate deterrence to criminal conduct;
      (C) to protect the public from further crimes of the defendant; and
      (D) to provide the defendant with needed educational or vocational
      training, medical care, or other correctional treatment in the most
      effective manner;
      (3) . . .
      (4) the kinds of sentence and the sentencing range established for--
      (A) the applicable category of offense committed by the applicable category
      of defendant as set forth in the guidelines . . .
      (B) in the case of a violation of probation or supervised release, the

                                         8
       applicable guidelines or policy statements issued by the Sentencing
       Commission pursuant to section 994(a)(3) of title 28, United States
       Code;
       (5) any pertinent policy statement issued by the Sentencing Commission
       pursuant to 28 U.S.C. 994(a)(2) that is in effect on the date the defendant is
       sentenced;
       (6) the need to avoid unwarranted sentencing disparities among defendants .
.
       ..

18 U.S.C. § 3553 (emphasis added).

       The foregoing statutes illustrate the clear legislative mandate that a court
must

consider a defendant’s need for correctional treatment when determining whether

to revoke supervised release and sentence a defendant to prison. See United States

v. Giddings, 37 F.3d 1091, 1095 (5th Cir. 1994). “If supervised release is

subsequently revoked under 18 U.S.C. § 3583(e), the statute also requires that the §

3553(a) factors be considered. However, when revocation of supervised release is

mandatory under 18 U.S.C. § 3583(g), the statute does not require consideration of

the § 3553(a) factors.” Id. (emphasis provided); see also United States v.

Anderson, 15 F.3d 278, 281-82 (2d Cir. 1994) (discussing sections 3583 and

3553).

Mandatory Revocation of Supervised Release

       “If the defendant . . . possesses a controlled substance . . . or refuses to

comply with drug testing imposed as a condition of supervised release;

                                            9
the court shall revoke the term of supervised release and require the defendant to

serve a term of imprisonment not to exceed the maximum term of imprisonment

authorized under subsection (e)(3).” 18 U.S.C. § 3583(g)(1),(3). Although not

mentioned by the district court, Brown’s revocation was mandatory because he

possessed a controlled substance and refused to comply with drug testing.

      The section governing mandatory revocation of supervised release, 18

U.S.C. § 3583(g), “neither instruct[s] nor prohibit[s] the sentencing court from

considering rehabilitative goals in determining the length of a sentence upon

mandatory revocation of supervised release.” United States v. Jackson, 70 F.3d

874, 880 (6th Cir. 1995). There is no reason to prohibit a court, upon mandatory or

permissive revocation of supervised release, from considering a defendant’s

rehabilitative needs

in determining the length of a prison term. See id.

      The preclusion against considering rehabilitation as a reason for imposing or

lengthening a term of imprisonment, see Harris, 990 F.2d at 597, does not apply

when a court sentences a defendant to prison upon revocation of supervised

release. See Anderson, 15 F.3d at 283. In Harris, we reasoned that “rehabilitation-

oriented conditions are appropriate on supervised release.” Harris, 990 F.2d at 596

(citing 18 U.S.C. § 3583(d) (1988 & Supp. II 1990) (including by reference 18


                                         10
U.S.C. § 3563(b)(10)). “The guidelines are consistent with these statutory

provisions, stating that ‘it is highly recommended that a [drug-dependent]

defendant who is incarcerated also be sentenced to supervised release with a

requirement that the defendant participate in an appropriate substance abuse

program.’” Harris, 990 F.2d at 596 (citation omitted). Section 3583 contemplates

that rehabilitative factors will be considered in determining the length of

supervised release. See Anderson, 15 F.3d at 282. Section 3583(e)(3) “expressly

contemplates requiring an offender to serve time in prison equal to his or her

period of supervised release, and a court may consider the medical and correctional

needs of an offender in determining the length of supervised release.” Id. at 283.

Therefore, it logically follows from the plain language of section 3583(e)(3) that

Congress intended that a court may consider the correctional needs of a defendant

in determining the length of the defendant’s imprisonment after revocation of

supervised release. See id.

      The district court properly considered Brown’s rehabilitative needs. The

court stated: “the reason I have gone above the Chapter 7 guidelines is you have a

substantial substance abuse problem that the Court feels there is no other way to

address in the short-term [] [a]nd to protect you and society, I am directing that the

BOP attempt to give you the benefit of that program.” The court noted that Brown


                                          11
“seriously needed the comprehensive abuse [drug treatment program].” A longer

prison term would probably enable Brown to obtain necessary drug rehabilitation

without posing a danger to himself and society. See Jackson, 70 F.3d at 879.

Chapter 7 Policy Statements

      Brown also contends that the district court failed to consider the policy

statements of Chapter 7 of the Sentencing Guidelines. These statements provide

imprisonment ranges that a sentencing court may follow upon revocation of

supervised release. See Hofierka, 83 F.3d at 360 (citing U.S.S.G. Ch. 7, Pt. A,

intro.). A sentencing court must consider the policy statements, but it is not bound

by them because they are “merely advisory.” See id. at 361; United States v.

Milano, 32 F.3d 1499, 1502-03 (11th Cir. 1994); United States v. Thompson, 976

F.2d 1380, 1381 (11th Cir. 1992). It is clear from the record that the district court

did consider the Chapter 7 imprisonment range but decided to exceed it. The court

noted: “the statutory maximum that I can impose is a two year custody sentence in

the Bureau of Prisons, although the [sic] Chapter 7 of the guidelines range is five to

eleven months. You understand I have a lot of discretion here this morning?” The

court told Brown that if the Bureau of Prisons could not designate him into an

institution where the comprehensive substance abuse treatment program was

available, the court would direct the Bureau of Prisons to amend Brown’s sentence


                                          12
“to reflect a sentence at the maximum of the Chapter 7 guidelines range of eleven

months.”

      The two year term of imprisonment did not exceed the maximum prescribed

by statute. See 18 U.S.C. § 3583(e)(3), (g). Supervised release was imposed for

Brown’s commission of at least one Class C felony. See 18 U.S.C. § 2113(a)

(1994) (bank robbery; imprisonment cannot exceed twenty years); 18 U.S.C. §

2113(a)(1999) (same); see also 18 U.S.C. § 3559(a)(3) (1999) (if the maximum

term of imprisonment is “less than twenty-five years but ten or more years,” the

offense is classified as a Class C felony); 18 U.S.C. § 3559(a)(3) (1994) (same

language). Therefore, the maximum term of imprisonment that Brown could have

received for revocation of supervised release was two years. See 18 U.S.C. §

3583(e)(3) (1999) (a defendant cannot be required to serve more than two years in

prison if the offense for which revocation was revoked is a class C felony).

                                III. CONCLUSION

      We conclude that a sentencing court may consider the rehabilitative needs of

a defendant when imposing or determining the length of a term of imprisonment

upon mandatory or permissive revocation of supervised release. The district court

did not abuse its discretion in considering Brown’s need for drug rehabilitation

when it imposed a two year term of imprisonment upon revocation of his


                                         13
supervised release.

AFFIRMED.
