                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-8-2004

USA v. Garland
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3542




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Recommended Citation
"USA v. Garland" (2004). 2004 Decisions. Paper 605.
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                                                  NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     NO. 03-3542


                           UNITED STATES OF AMERICA

                                           v.

                  DANIELLE GARLAND, a/k/a OTISIA HOWELL,
                   a/k/a LORI BURK, a/k/a LISA GALLAGHER,

                              Danielle Garland, Appellant.

                      ____________________________________

                    On Appeal From the United States District Court
                              For the District of Delaware
                             (D.C. Crim. No. 00-cr-00040)
                       District Judge: Honorable Kent A. Jordan


                      Submitted Under Third Circuit LAR 34.1(a)
                                  March 22, 2004

           Before: ROTH, AMBRO, AND CHERTOFF, CIRCUIT JUDGES

                                 (Filed: June 8, 2004)
                                 _________________

                                     OPINION
                                 _________________


                              ROTH, CIRCUIT JUDGE.

      Appellant Danielle Garland appeals from a judgment of the District Court for the

District of Delaware entered on August 15, 2003. Garland pleaded guilty to conspiracy to
commit bank fraud in violation of 18 U.S.C. § 371, and was sentenced in February 2001

to a term of imprisonment of six months to be followed by three years of supervised

release. Special conditions of supervised release required her to participate in inpatient

and outpatient drug treatment. Garland began her term of supervised release by

successfully completing the program at Miramont, a residential drug treatment program,

and apparently overcoming her addiction to cocaine.

       After being released from Miramont, Garland attended “Open Door,” an outpatient

drug treatment program. She was subject to required urine testing, and those tests came

back positive for marijuana. At her request the conditions of supervision were modified

to add that she receive mental health counseling for depression. She began counseling in

June 2002 with Dr. Tucker-Okine, but did not keep her appointments.

       Garland was determined by the United States Probation Office to have absconded

from supervision by failing to attend counseling and report to the Probation Office. A

warrant was issued for her arrest. On April 23, 2003, the Probation Office filed a Petition

on Probation and Supervised Release, in which Garland’s Probation Officer, Craig H.

Carpenter, alleged that she had violated the conditions of supervised release by submitting

14 urines that had tested positive for marijuana and by missing two mental health

counseling appointments. It was noted in the petition that Garland had admitted her

marijuana use to her supervising probation officer and in her monthly probation

supervision reports. Garland was arrested.



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       Prior to her scheduled hearing, the Probation Officer submitted a memorandum,

which outlined the sentencing options available under U.S.S.G. §§ 7B1.3(a)(2) and (c)(1),

and § 7B1.4(a). The violations cited in the petition were Grade C violations pursuant to

U.S.S.G. § 7B1.1(a)(3). 1 At her original sentencing, Garland’s Criminal History Category

was IV. She retained that classification for calculating the range of imprisonment for the

violation of supervised release. With Grade C violations and a Category IV criminal

history, section 7B1.4(a), the Revocation Table, advised a term of imprisonment of 6-12

months. The original conspiracy violation was a Class D felony. Therefore, Garland

faced up to two years imprisonment pursuant to 18 U.S.C. § 3583(e)(3).

       At the hearing Garland admitted the violations alleged in the petition. She stated

that outpatient drug and mental health treatment had not worked for her, and she asked

the court not to send her back to prison because, among other reasons, she did not “feel

like [she] should be thrown back in jail for smoking marijuana.” The District Court

found that Garland had violated the terms of her supervised release in accordance with

the allegations in the petition, noting, among other things, that Garland tended to

externalize blame and make excuses for her abuse of marijuana. Moreover, she did not

seem to grasp the seriousness of possession and abuse, either legally or in terms of what it

might be doing to her and her family. The court sentenced her to a term of imprisonment

of 10 months in accordance with the Probation Officer’s recommendation, a term within

   1
     Violations of supervised release are classified under one of three grades, A through
C, depending on the severity of the conduct. U.S.S.G. § 7B1.1.

                                             3
the advisory range set forth by the policy statement of section 7B1.4(a). No additional

term of supervised release was imposed. Garland appeals.

       We will affirm. We have jurisdiction pursuant to 28 U.S.C. § 1291. Garland

contends on appeal that the District Court did not consider alternative sentencing options

and did not consider the mitigating factors enumerated in 18 U.S.C. § 3553(a)(2). 2 She

does not contest revocation or the imposition of some prison time. She does not disagree

that she received treatment but contends instead that it was not the right treatment for

her. 3 Furthermore, she has a daughter of high school age, who needs her support.

Relying on 18 U.S.C. § 3553(a)(3), and more specifically U.S.S.G. § 7B1.3(c)(2)(B),

Garland seeks a reduced sentence of five months to be followed by home confinement or

supervision at the Plummer Center or other halfway house facility.

       We are not persuaded by these arguments. If the District Court finds that a

defendant has committed a Grade C violation of a condition of supervised release, “the

court may (A) revoke probation or supervised release; or (B) extend the term of probation

or supervised release and/or modify the conditions of supervision.” U.S.S.G. §


   2
     Section 3553(a)(2) provides that the court shall consider “the need for the sentence
imposed – (A) to reflect the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense; (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.” 18 U.S.C. § 3553(a)(2).
   3
     Garland asserts that the mental health counselor should have treated her depression
with antidepressant medication, and that “Open Door,” with its emphasis on group
counseling, did not adequately treat her marijuana addiction.

                                             4
7B1.3(a)(2) (Policy Statement). Section 7B1.4(a) (Policy Statement), captioned

"Revocation Table," sets forth the recommended ranges of imprisonment to be served

following revocation of supervised release. Section 7B1.4(a) sentencing ranges are

indexed by the defendant's criminal history category at the time of the original sentencing

and the grade of the violation.

       The provisions of U.S.S.G. § 7B1.4(a) are advisory in nature and not strictly

applicable guidelines. See United States v. Schwegel, 126 F.3d 551, 552 (3d Cir. 1997)

(per curiam) (holding that supervised release provisions remained advisory after 1994

amendments to 18 U.S.C. § 3583). Therefore, the trial court has discretion as to the

imposition of sentence. See United States v. McClanahan, 136 F.3d 1146, 1149 (7 th Cir.

1998). On review of that discretionary sentence, the relevant statute provides that “the

court of appeals shall determine whether the sentence – (4) was imposed for an offense

for which there is no applicable sentencing guideline and is plainly unreasonable.” 18

U.S.C. § 3742(e)(4).

       We addressed the "plainly unreasonable" standard applicable to U.S.S.G. §

7B1.4(a) in United States v. Blackston, 940 F.2d 877 (3d Cir. 1991). In that case, the

district court rejected the 4 to 10 month sentencing range prescribed by the policy

statement. We held that the district court's imposition of the maximum sentence

permitted under 18 U.S.C. § 3583(e)(3), three years imprisonment, was not plainly

unreasonable given the defendant’s drug possession while on supervised release. Id. at



                                             5
894. The Seventh Circuit upheld a sentence far above the policy statement, finding it not

to be plainly unreasonable, in McClanahan, 136 F.3d at 1151 (upholding statutory

maximum revocation sentence of 2 years where section 7B1.4(a) advisory range was 4 to

10 months). See also Schwegel, 126 F.3d at 555 (upholding statutory maximum

revocation sentence of 3 years where section 7B1.4(a) advisory range was 6 to 12

months).

       In this case, Garland’s sentence was in the middle of the advisory range. The

District Court decided to impose a sentence in the middle of the advisory range so that

she would abstain from marijuana use for the 10 months of her imprisonment. We reject

Garland’s assertion that the District Court did not consider the mitigating factors in her

case. Garland has provided no case law in support of her position, and we have no basis

to find her sentence plainly unreasonable on its face. She relies on her commitment to get

treatment, but, during a ten month period, she submitted 14 urine specimens that tested

positive for marijuana. The District Court may consider whether a longer sentence is

necessary in order to give Garland time in custody to recover from her dependence on

marijuana. See Schwegel, 126 F.3d at 555. She also relies on her responsibilities as a

mother, but the responsibilities of life and family are not enough for us to conclude that a

sentence in the middle of the six to twelve month advisory range is "plainly

unreasonable." See U.S.S.G. § 5H1.6 ("Family ties ... are not ordinarily relevant in

determining whether a sentence should be outside the applicable guideline range.").



                                             6
       Garland argues further that, where the court finds a Grade C violation, and

“[w]here the minimum term of imprisonment determined under § 7B1.4 (Term of

Imprisonment) is more than six months but not more than ten months, the minimum term

may be satisfied by ... (B) a sentence of imprisonment that includes a term of supervised

release with a condition that substitutes community confinement or home detention

according to the schedule in § 5C1.1(e), provided that at least one-half of the minimum

term is satisfied by imprisonment.” U.S.S.G. § 7B1.3(c)(2)(B). Thus she could serve a

term of imprisonment of five months to be followed by five months of home confinement

or supervision at the Plummer Center or other halfway house facility. However, in these

same circumstances, the court also may impose “(A) a sentence of imprisonment,”

U.S.S.G. § 7B1.3(c)(2)(A), that does not include a term of supervised release with

conditions. Subparagraph (c)(2)(B) thus provides no basis for us to conclude that the

District Court’s decision to require that all ten months be served in prison was plainly

unreasonable.

       We will affirm the judgment and sentence of the District Court.




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