     Case: 16-10698   Document: 00514024549       Page: 1   Date Filed: 06/07/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals

                                   No. 16-10698
                                                                            Fifth Circuit

                                                                          FILED
                                                                       June 7, 2017

UNITED STATES OF AMERICA,                                            Lyle W. Cayce
                                                                          Clerk
             Plaintiff–Appellee,

v.

JOHN HOKE BROOKER,

             Defendant–Appellant.




                Appeal from the United States District Court
                     for the Northern District of Texas


Before STEWART, Chief Judge, and WIENER and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      Defendant–Appellant John Hoke Brooker pleaded true to violating
numerous conditions of his supervised release. The district judge accordingly
revoked Brooker’s term of supervised release and sentenced him to an
additional   twenty-four   months’     imprisonment.    Brooker     appeals          this
revocation. We AFFIRM.
                              I. BACKGROUND
      In 2011, Brooker pleaded guilty to one count of possession of a counterfeit
obligation under 18 U.S.C. § 472 and was thereafter sentenced to 70 months’
imprisonment and a three-year term of supervised release. Brooker’s term of
supervised release began on June 26, 2015.
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      On May 10, 2016, the government moved to revoke Brooker’s term of
supervised release. The government alleged Brooker had violated the
conditions   of   his   supervised    release   by:    (1)   using   and   possessing
methamphetamine multiple times; (2) failing numerous drug tests; (3) refusing
to participate in substance abuse treatment counseling; and (4) failing to make
consistent payments toward a fine imposed on him as part of his sentence. At
a revocation hearing on May 12, 2016, Brooker pleaded true to these violations
and the district court revoked Brooker’s term of supervised release. The district
court then heard testimony, argument, and allocution from the defense.
Thereafter, the district court detailed Brooker’s criminal history and sentenced
him to 24 months’ imprisonment and no supervised release, noting that the
previous supervision had not “done a bit of good.” Brooker objected to the
length of the sentence and the court’s alleged failure to consider a drug
treatment program in lieu of imprisonment. This appeal followed. On appeal,
Brooker also argues the district court erred by failing to give him a meaningful
opportunity for allocution because he was not permitted to address the court
before the judge voiced his intent to revoke Brooker’s supervised release.
                               II. DISCUSSION
      The decision to revoke supervised release is generally reviewed for an
abuse of discretion. United States v. McCormick, 54 F.3d 214, 219 (5th Cir.
1995). We then “review a sentence imposed on revocation of supervised release
under a ‘plainly unreasonable’ standard, in a two-step process.” United States
v. Warren, 720 F.3d 321, 326 (5th Cir. 2013). First, we “ensure that the district
court committed no significant procedural error.” Id. (quoting United States v.
Kippers, 685 F.3d 491, 497 (5th Cir. 2012)). Second, “[i]f the district court’s
sentencing decision lacks procedural error, this court . . . considers the
substantive reasonableness of the sentence imposed.” Id. (quoting Kippers, 685
F.3d at 497). “If we find the sentence unreasonable, we may reverse the district
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court only if we further determine ‘the error was obvious under existing law.’”
Id. (quoting United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011). Where
a defendant fails to object before the district court, “errors resulting from a
denial of the right of allocution under Rule 32 are subject to plain error
review.” 1 United States v. Reyna, 358 F.3d 344, 350 (5th Cir. 2004) (en banc).
      Revocation     of    supervised   release    is   mandatory    under     certain
circumstances. 18 U.S.C. § 3583(g). Among other things, revocation is required
where a defendant “possesses a controlled substance,” “refuses to comply with
drug testing imposed as a condition of supervised release,” or “as a part of drug
testing, tests positive for illegal controlled substances more than 3 times over
the course of 1 year.” 18 U.S.C. § 3583(g). That said, 18 U.S.C. § 3583(d)
provides that where a defendant fails a drug test, “[t]he 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 . . . from the rule of section 3583(g).”
      Both of Brooker’s arguments on appeal rely on an underlying proposition
that he fits within § 3583(d)’s treatment exception. Because Brooker’s term of
supervised release was revoked both due to drug possession and his refusal to
comply with drug testing—not just because he failed a drug test—it is unclear
whether Brooker qualifies for the treatment exception under our existing case
law. While this Court has not annunciated a rule in a published opinion, we
have several times declined to apply the treatment exception where the
established violations of a defendant’s conditions of supervised release
included more than failing a drug test. See United States v. Turlich, 440 F.
App’x 282, 282–83 (5th Cir. 2011) (per curiam); United States v. Kindley, 271



      1Because it does not change the outcome of this case, we do not address Brooker’s
argument that de novo review may be appropriate as to his allocution argument.
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F. App’x 429 (5th Cir. 2008) (per curiam); United States v. Harper, 34 F. App’x
150 (5th Cir. 2002) (per curiam).
      Despite these unpublished cases, we remain concerned that it may be
unwise to unnecessarily limit the situations in which a district judge is
required to consider substance abuse treatment in lieu of imprisonment. Most
circuits have determined that a judge may infer drug possession from a
defendant’s positive drug test. See United States v. Trotter, 270 F.3d 1150, 1153
(7th Cir. 2001); United States v. Crace, 207 F.3d 833, 836–37 (6th Cir. 2000);
United States v. Clark, 30 F.3d 23, 25 (4th Cir. 1994); United States v. Dow,
990 F.2d 22, 24 (1st Cir. 1993); United States v. Rockwell, 984 F.2d 1112, 1114–
15 (10th Cir. 1993), abrogated on other grounds by Johnson v. United States,
529 U.S. 694 (2000); United States v. Almand, 992 F.2d 316, 318 (11th Cir.
1993); United States v. Courtney, 979 F.2d 45, 49 (5th Cir. 1992); United States
v. Blackston, 940 F.2d 877, 878 (3d Cir. 1991); United States v. Baclaan, 948
F.2d 628, 630 (9th Cir. 1991). Indeed, this inference is logical: a positive drug
test necessarily requires possession. Crace, 207 F.3d at 836.
      But if such an inference is permitted and we continue to strictly apply
the rule we have implemented in our unpublished case law, we are essentially
authorizing a district court to ignore the possibility of substance abuse
treatment in the very situation where § 3583 requires it—when a defendant
tests positive for a controlled substance. Under such an approach, district
courts would be permitted to infer that a defendant with a single positive drug
test (the condition triggering the treatment exception) possessed the drug in
question (a condition necessitating mandatory revocation under § 3583(g)(1))
and would thereby almost never be required to consider substance abuse
treatment in lieu of imprisonment. However, we need not reach this issue
because clarifying when a district court is required to consider the treatment
exception under § 3583(d) would not change the outcome of our decision.
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                                  No. 16-10698
      Even if the district court was required to consider the treatment
exception under § 3583(d), the record does not indicate that it failed to do so.
As we have previously said, a district court is not required to engage in
“checklist recitation” of sentencing factors at a revocation hearing. Kippers, 685
F.3d at 498 (quoting United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006)).
Implicit consideration is all that is required. Id. And other circuits have
persuasively expanded this concept to the situation where a district court is
required to consider substance abuse treatment in lieu of imprisonment.
United States v. Hammonds, 370 F.3d 1032, 1038–39 (10th Cir. 2004) (finding
the district court did not abuse its discretion by revoking the defendant’s
supervised release rather than placing him in substance abuse treatment
because there was “no indication the court did not recognize that it could grant
the exception”); Crace, 207 F.3d at 835–36 (holding that no “magic words” are
required to demonstrate that a district court considered substance abuse
treatment). Where, for instance, the defendant argues to the district court that
a substance abuse treatment program should be imposed and the court still
revokes supervised release, it is understood that the court implicitly considered
and rejected application of the drug treatment exception. See Hammonds, 370
F.3d at 1039 (determining that the district court implicitly considered
substance abuse treatment in lieu of imprisonment where the parties disputed
the issue at a revocation hearing); cf. United States v. Pierce, 132 F.3d 1207,
1208–09 (8th Cir. 1997) (remanding the issue of revocation to the district court
where the court explained that revocation was “mandated” and did not assign
the defendant to drug treatment).
      We agree with this reasoning. Here, Brooker requested on numerous
occasions that the court place him in a drug treatment program. The court,
however, detailed Brooker’s criminal and drug history and ultimately
sentenced Brooker to twenty-four months’ imprisonment. Nothing in the
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                                  No. 16-10698
record indicates that the court did not believe it had the ability to consider drug
treatment. In fact, the court’s observations that supervised release had thus
far not “done a bit of good” for Brooker and that it was accordingly “not going
to waste the government’s money by providing him further supervision”
affirmatively   suggest that     the   court   did   consider,   but   rejected,   a
nonimprisonment option. Such a conclusion is logical where, as here, the
defendant has already refused to participate in substance abuse counselling.
Because it appears the district court implicitly considered substance abuse
treatment in lieu of imprisonment, we hold the district court did not err in
ordering revocation and sentencing Brooker to twenty-four months’
imprisonment.
      Finally, Brooker argues that he was denied a meaningful opportunity for
allocution. Specifically, he argues that he should have been given an
opportunity to address the district court before his term of supervised release
was revoked, not simply before a sentence was imposed. Federal Rule of
Criminal Procedure 32(i)(4)(A)(ii) requires that a defendant be given the
opportunity to speak before a sentence is imposed. See Fed. R. Crim. P. 32.1
(advisory committee’s note to 2005 amendments) (describing allocution rights
as being available to a defendant “upon revocation of supervised release”);
United States v. Turner, 741 F.2d 696, 699 (5th Cir. 1984) (remanding for
resentencing due to the district court’s failure “to accord the defendant his
right of allocution upon the deferred sentencing following the revocation”
(emphasis added)). Here, Brooker was given ample opportunity to address the
court after revocation but before being sentenced to twenty-four months’
imprisonment. As Brooker has not presented this Court with any case law
mandating an opportunity for allocution prior to revocation, we find the district
court did not commit error. See United States v. Evans, 587 F.3d 667, 671 (5th


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                                No. 16-10698
Cir. 2009) (holding that there was no plain error where the appellant failed to
present any Fifth Circuit precedent in support of his argument).
                             III. CONCLUSION
      For the reasons stated above, we AFFIRM.




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