                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 18-4184


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

BOBBY EVANS,

                    Defendant - Appellant.



Appeal from the United States District Court for the Southern District of West Virginia,
at Charleston. John T. Copenhaver, Jr., District Judge. (2:14-cr-00153-1)


Submitted: August 27, 2018                                        Decided: August 30, 2018


Before DUNCAN, THACKER, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Christian M. Capece, Federal Public Defender, David R. Bungard, Assistant Federal
Public Defender, Jonathan D. Byrne, Research and Writing Specialist, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Michael B.
Stuart, United States Attorney, Monica D. Coleman, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Bobby Evans appeals the district court’s order revoking his supervised release and

sentencing him to an 8-month term of imprisonment to be followed by a 22-month term

of supervised release. Evans argues that, in lieu of prison, the district court should have

ordered him to participate in an inpatient drug treatment program. For the reasons that

follow, we reject Evans’ argument and affirm the district court’s judgment order.

       In 2014, Evans was convicted of distribution of heroin and sentenced to 27

months’ imprisonment, to be followed by 3 years’ supervised release. After his release

on supervision in May 2016, Evans violated the terms of supervised release by using and

possessing controlled substances. Rather than revoke supervised release, the district

court entered an order on March 23, 2017, modifying the terms of supervision by

ordering Evans to attend drug abuse counseling and treatment as directed by the

probation officer. Evans once again violated the conditions of supervised release by

using and possessing controlled substances, failing to attend individual and group

substance abuse counseling and treatment, and failing to appear for urine tests, as

instructed. This time, the district court revoked supervised release and sentenced Evans

to 6 months’ imprisonment, to be followed by a 30-month term of supervised release. In

addition to the standard conditions of supervised release, the court imposed the special

condition that Evans participate in, and successfully complete, a 9- to 12-month

residential drug abuse treatment program at Recovery Point.

      When Evans completed his revocation sentence, he was released on supervision

and immediately entered the Recovery Point residential drug treatment program.

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However, six days later, Evans chose to leave the program, in violation of the special

condition of supervised release. For the third time, the probation officer filed a petition

for revocation of supervised release. At the revocation hearing, Evans admitted the

violation and, based on Evans’ admission, the court found by a preponderance of the

evidence that he had violated the terms of his supervised release. This time, the district

court revoked supervised release and sentenced Evans to 8 months’ imprisonment to be

followed by 22 months of supervised release. Evans appeals this order.

       We review for abuse of discretion a district court’s decision to revoke supervised

release. United States v. Padgett, 788 F.3d 370, 373 (4th Cir. 2015). Citing 18 U.S.C.

§ 3583(d) (2012), Evans argues that the district court abused its discretion by returning

him to prison rather than allowing him to participate in another inpatient substance abuse

treatment program.

       Evans’ argument fails, though, in light of the statutory provisions at issue here.

Specifically, under 18 U.S.C. § 3583(g) (2012), revocation of supervised release is

mandatory when the district court finds that a defendant has: (1) possessed a controlled

substance in violation of the conditions of supervised release; (2) possessed a firearm in

violation of federal law or the conditions of supervised release; (3) refused to comply

with a condition of supervised release mandating drug testing; or (4) tested positive for

controlled substances more than three times in a year. “[W]hen considering any action

against a defendant who fails a drug test,” the court must “consider whether the

availability of appropriate substance abuse treatment programs, or an individual’s current



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or past participation in such programs, warrants an exception” from the mandatory prison

term prescribed by § 3583(g). 18 U.S.C. § 3583(d) (2012).

       The violation that resulted in the revocation of Evans’ supervised release was not

the use of illicit substances or any other violation triggering mandatory revocation of

supervised release under § 3583(g) but, rather, Evans’ failure to comply with the special

condition of supervised release requiring him to participate in, and successfully complete,

the 9- to 12-month substance abuse program at Recovery Point. Thus, as the Government

rightly contends, the exception in § 3583(d) did not apply.

       Evans admitted to violating the special requirement that he complete the 9- to 12-

month drug abuse treatment program at Recovery Point. The district court observed that,

the first time Evans was charged with violating the conditions of supervised relief, the

court permitted him to remain on supervision with the modification that Evans was

required to undergo drug abuse counseling and treatment as directed by the probation

officer. Instead of complying with this modified condition, Evans proceeded to use illicit

substances. This time, the court revoked Evans’ supervised release. In lieu of a sentence

within the 12- to 18-month Policy Statement range, the court imposed a 6-month prison

term and the special condition of supervised release requiring his successful completion

of the Recovery Point substance abuse program. Nevertheless, only days after his release

on supervision, Evans violated this special condition by leaving the Recovery Point

program. The court held that Evans’ history of violating the conditions of supervised

release, and his latest and most egregious breach of the court’s trust when he violated the

special condition of supervised release, made revocation of supervised release and

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incarceration the appropriate course of action. We conclude that the court acted well

within its discretion in revoking Evans’ supervised release term on this basis. See U.S.

Sentencing Guidelines Manual ch. 7, pt. A(3)(b), p.s. (2014) (in fashioning an appropriate

supervised release sentence, “the court should sanction primarily the defendant’s breach

of trust, while taking into account, to a limited degree, the seriousness of the underlying

violation and the criminal history of the violator”).

       Accordingly, we affirm the district court’s sentencing decision. We dispense with

oral argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.



                                                                              AFFIRMED




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