
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 94-1785                                    UNITED STATES,                                      Appellee,                                          v.                               FREDERICK L. THURLOW IV,                                  A/K/A LEE MCQUADE,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Tina Schneider for appellant.            ______________            Margaret  D.  McGaughey, Assistant  United  States Attorney,  with            _______________________        whom  Jay P. McCloskey, United  States Attorney, and  John S. Gleason,              ________________                                _______________        Assistant United States Attorney, were on brief for appellee.                                 ____________________                                   January 19, 1995                                 ____________________                      Per  Curiam.   Defendant Frederick  Thurlow appeals                      Per  Curiam.                      ____________            from the  district court's imposition of  a special condition            of  supervised release.   Thurlow  was sentenced  following a            guilty  plea to  three counts  of an  eleven-count indictment            that  alleged possession  of stolen  mail, theft  of property            used  by the United States Postal  Service and other offenses            resulting  from a  crime spree  engaged in  by Thurlow  and a            coconspirator.     As  part  of  a   three-year  sentence  of            supervised release,  the  district court  ordered Thurlow  to            abstain from the  use or  possession of  alcohol and  illegal            drugs  during   this  period.     Thurlow  argues   that  the            requirement  of   total  abstinence   from  alcohol  was   an            unwarranted abuse of discretion.  We do not agree.                      Thurlow  argues  that  U.S.S.G.     5D1.3(b), which            requires  that special  conditions  imposed by  the court  be            "reasonably related  to the  nature and circumstances  of the            offense   and  the   history   and  characteristics   of  the            defendant," does not authorize  the type of special condition                                         -2-                                          2            imposed.1  Specifically, Thurlow  claims that he exhibited no            particular attributes warranting the condition imposed.                        Thurlow  argues too  much.   Thurlow  comes from  a            family with an active history of alcohol abuse and his record            indicated  that substance  abuse was  and continued  to be  a            serious problem for him.   Indeed, Thurlow's counsel admitted            as  much in  the presentence  conference before  the district            court.  Cf. United  States v. Ruiz-Garcia, 886 F.2d  474, 476                    ___ ______________    ___________            (1st   Cir.  1989)   (concessions  voluntarily   made  during            sentencing   cannot   be   withdrawn   absent   extraordinary            circumstances).   Moreover,  the record reveals  that Thurlow            used proceeds  from the  crime spree  to purchase  alcohol on            several  occasions.     The  district  court   gave  thorough            consideration  to the  defendant's  history  in reaching  its            decision to  impose the  special condition.   Accordingly, we                                            ____________________            1.  U.S.S.G.   5D1.3 provides in relevant part:                      (b)      The  court   may   impose  other                      conditions of supervised release,  to the                      extent    that   such    conditions   are                      reasonably  related to (1) the nature and                      circumstances  of  the  offense  and  the                      history   and   characteristics  of   the                      defendant,  and  (2)  the  need  for  the                      sentence   imposed  to   afford  adequate                      deterrence   to   criminal  conduct,   to                      protect the public from further crimes of                      the   defendant,   and  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) and 3583(d).                                         -3-                                          3            find no abuse of  discretion.  See United States  v. Johnson,                                           ___ _____________     _______            998 F.2d  696, 699 (9th Cir. 1993) (no abuse of discretion to            impose,  along with  other restrictions,  condition requiring            that defendant  abstain from alcohol use  where defendant had            history of substance abuse and  had been involved in alcohol-            related incidents).2                      The decision  of the  district court to  impose the            special condition of supervised release is affirmed.3                                                       affirmed                                                       ________                                            ____________________            2.  The cases cited by  Thurlow are not apposite.   He relies            principally on  United States v. Prendergast,  979 F.2d 1289,                            _____________    ___________            1292-93 (8th  Cir. 1992), in  which the  Eighth Circuit  held            that the  district court abused its  discretion in requiring,            inter   alia,   the   complete   abstinence   from   alcohol.            _____   ____            Prendergast is  off the mark,  however, because in  that case            ___________            there was no  evidence that  the defendant had  a history  of            alcoholism.  Id.  See also United States v. Stoural, 990 F.2d                         ___  ___ ____ _____________    _______            372  (8th  Cir.  1993)  (relying on  Prendergast  to  reverse                                                 ___________            imposition of condition requiring abstinence from alcohol).              3.  In  so holding, we do not give approval to the imposition            of  such a special  condition as a  standard practice without            evidentiary support for it in the record.                                         -4-                                          4
