                                                                   FILED
                                                       United States Court of Appeals
                        UNITED STATES COURT OF APPEALS         Tenth Circuit

                                   TENTH CIRCUIT                             March 28, 2014
                          ___________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

         Plaintiff - Appellee,

    v.                                                 Nos. 13-3132 & 13-3134
                                               (D.C. Nos. 6:00-CR-10106-01-MLB-1 &
ROBBY ALAN MURPHY,                                   6:11-CM-60014-01-MLB-1)
                                                              (D. Kan.)
         Defendant – Appellant.

                        ____________________________________
                              ORDER AND JUDGMENT*
                         ____________________________________

Before KELLY, BALDOCK, and HARTZ, Circuit Judges.**
                ____________________________________

         Defendant Robby Alan Murphy had his supervised release revoked and was

resentenced to two concurrent 24-month terms of imprisonment. He admitted below that

he used and possessed controlled substances in violation of his conditions of supervised

release for a prior offense. On appeal Defendant acknowledges his admissions triggered

the mandatory revocation of his supervised release under 18 U.S.C. § 3583(g)(1) and (4).

He argues, however, that the district court erred by failing to consider the exception to

*
  This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
  After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist the determination of these appeals. See
Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cases therefore are ordered submitted
without oral argument.
revocation contained within 18 U.S.C. § 3583(d) that would have allowed him to enter a

substance abuse treatment program instead. Exercising jurisdiction under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742, we affirm.

      Defendant’s appeal fails under United States v. Hammonds, 370 F.3d 1032 (10th

Cir. 2004). In Hammonds, we stated:

      the decision to apply the [§ 3853](d) exception is at the discretion of the
      district court, we review this decision for an abuse of discretion. We first
      note that the district court here did not make a specific ruling on the record
      rejecting application of the subsection (d) exception in this case or
      explaining the reasons for such a rejection. This alone does not constitute
      an abuse of discretion, however, as there is no indication the court did not
      recognize that it could grant the exception.

Id. at 1038–39. Defendant acknowledges the district court was within its authority to

revoke his supervised release. He also acknowledges “no ‘magic words’” are required to

indicate substance abuse treatment was considered as an option. Def’s Op. Br. at 10

(quoting Hammonds, 370 F.3d at 1039). Defendant nevertheless argues Hammonds is

distinguishable because the district court there “at least made an attempt to address the

substance treatment issue by recommending that the defendant be placed in a treatment

program while in prison.” Def’s Op. Br. at 11 (citing Hammonds, 370 F.3d at 1039).

      Here, Defendant and the Government each raised the § 3583(d) treatment

exception at the revocation hearing. The district court implicitly rejected the option,

albeit briefly, stating, “At some point, people have to take control of their own life and

not depend on counselors, psychiatrists, [and] psychologists . . . .” This statement

indicates the court recognized it could, but nevertheless declined to, grant the treatment



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exception Defendant sought.   Accordingly, Defendant’s attempt to distinguish

Hammonds fails.

      AFFIRMED.

                                  Entered for the Court,



                                  Bobby R. Baldock
                                  United States Circuit Judge




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