                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT           FILED
                         ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                No. 10-10939                    OCT 22, 2010
                            Non-Argument Calendar                JOHN LEY
                                                                   CLERK
                          ________________________

                     D.C. Docket No. 1:92-cr-00533-KMM-2

UNITED STATES OF AMERICA,

                                                 lllllllllllllllllllllPlaintiff-Appellee,

                                     versus

CARLOS MIGUEL LATOUR,

                                              lllllllllllllllllllllDefendant-Appellant.

                          _______________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                               (October 22, 2010)

Before CARNES, HULL and FAY, Circuit Judges.

PER CURIAM:

      After pleading guilty in 1993 to one count of conspiracy to possess cocaine

with intent to distribute, Carlos Miguel Latour was sentenced to 164 months
imprisonment, to be followed by 5 years of supervised release. His supervised

release commenced on July 2, 2004. Approximately one month before it was to

end, the United States Probation Office filed a petition alleging that Latour had

violated the terms of his release by testing positive for illegal narcotics on three

occasions during May and June of 2009. After a hearing in July 2009, the district

court revoked Latour’s supervised release, “committed [him] to the custody of the

Bureau of Prisons for time served,”1 and imposed a new period of supervised

release to last for 12 months. As part of its judgment, the district court required

that Latour participate in an approved drug treatment program.

           Within six months Latour was back before the district court again. On

December 31, 2009, Latour’s probation officer petitioned the court to issue a

warrant for Latour and revoke his supervised release. The petition alleged that

during December Latour had committed three violations of a special condition in

his supervised release that required him to participate in an approved drug

treatment program. Specifically, the first alleged violation was that Latour “was

unsuccessfully discharged from Spectrum Dade Chase, [a] residential drug

treatment program, due to violating the rules of the program.” The second and


       1
         The court added this language to its “Amended Judgment Upon Revocation,” which became
the final judgment, likely because Latour’s initial five-year term of supervised release had ended by
the time the first revocation hearing was held on July 28, 2009.

                                                 2
third alleged violations were that Latour had been absent from two scheduled

appointments at the Advocate, an outpatient drug treatment program.

      At his revocation hearing, Latour contested the first violation but admitted

to missing the two appointments that were the subjects of the second and third

violations. After considering the evidence, the district court found Latour guilty

of all three violations, revoked his sentence of supervised release, and sentenced

him to 14 months imprisonment to be followed by a new term of 46 months of

supervised release. Latour contends that the district court should not have found

him guilty of any of the violations and that it erred in failing to consider a

substance abuse treatment program as an alternative to incarceration.

                                           I.

      We review only for abuse of discretion the district court’s decision that a

defendant violated the terms of supervised release. United States v. Copeland, 20

F.3d 412, 413 (11th Cir. 1994). We are bound by the district court’s findings of

fact unless they are clearly erroneous. United States v. Almand, 992 F.2d 316, 318

(11th Cir. 1993). A district court may revoke a defendant’s term of supervised

release if the court finds by a preponderance of the evidence that the defendant

violated a condition of it. 18 U.S.C. § 3583(e)(3).




                                           3
      As for the first violation, Latour argued at the hearing that he was

discharged from the Spectrum drug abuse program not because he violated the

program’s rules but because his parole officer had ordered the discharge. Latour

presented some evidence at the hearing suggesting that the decision to discharge

him from Spectrum was a collaborative one between the drug treatment program

and the Department of Probation, but that was not inconsistent with the

considerable evidence that the reason Latour was discharged is that he was

breaking Spectrum’s rules.

      Latour himself admitted to possessing a cell phone in violation of

Spectrum’s rules. More importantly, on November 30, 2009, Latour twice failed

to comply with Spectrum’s procedures for drug testing. A therapist assigned to

Latour began to suspect that he was submitting someone else’s urine as his own.

At the third testing that day, Latour finally followed the proper procedures and

provided a legitimate sample, which tested positive for the presence of cocaine.

Because Spectrum is a residential facility, the program supervisors determined that

Latour must be using drugs at the facility itself, which constituted grounds for an

automatic discharge under Spectrum’s rules.

      Latour’s pattern of rule-breaking led to a phone conversation on December

1, 2009, between a Spectrum supervisor and Latour’s probation officer. At the

                                          4
revocation hearing, Latour’s therapist testified that under federal regulations, the

probation office must be informed before a federal client can be discharged

without successfully completing the program, regardless of whether the program’s

own rules require discharge. Spectrum’s record of this December 1st telephone

call noted that the probation office “agreed” that Latour should be discharged and

instructed Latour to report to his probation officer the following day.

       Based on this evidence, the district court did not clearly err in finding

Latour guilty of the first alleged violation of the terms of his supervised release.

Ample evidence supports the court’s finding that the reason for Latour’s discharge

was that he broke the Spectrum Program’s rules.2

       As for the second and third violations, Latour admitted to them at the outset

of his revocation hearing, and he did not object when the district court adjudicated

him guilty of those violations based on his own admissions. Latour later testified

at the hearing that he had valid explanations for why he had missed his scheduled

appointments at the Advocate Program. When the district court reminded Latour

that he had already admitted that those violations had occurred, Latour responded



       2
         We do not address Latour’s assertion that 18 U.S.C. § 3583(d) requires that the government
provide evidence of independent lab results confirming a positive drug test. The evidence supported
the district court’s finding that Latour was discharged from the residential drug treatment program
because he had violated its rules, regardless of the results of his drug test.

                                                5
that he was not contesting the violations but was arguing only about their

“substantiality.” There was no error as to those two violations.

                                           II.

      Finally, Latour argues that the district court failed to consider the

availability of a substance abuse treatment program as an alternative to

incarceration. He points to 18 U.S.C. § 3583(d), which states that a court “shall

consider whether the availability of appropriate substance abuse treatment

programs” warrants an exception to the mandatory revocation of supervised

release required under 18 U.S.C. § 3583(g). The district court erred, Latour

asserts, in failing to make any findings that justified or supported its decision to

impose additional prison time and in failing to discuss his rehabilitative needs and

explain why a sentence at the top of the guidelines range was appropriate.

      Because Latour did not raise an objection to the procedural reasonableness

of his sentence, we review only for plain error. See United States v. Gresham 325

F.3d 1262, 1265 (11th Cir. 2003). “Under the plain error standard, [a defendant]

must show that: (1) an error occurred; (2) the error was plain; (3) it affected his

substantial rights; and (4) it seriously affected the fairness of the judicial

proceedings.” Id. (citation omitted).




                                            6
       First, it is not plain that 18 U.S.C. § 3583(d) is even applicable here. The

government did not seek mandatory revocation pursuant to 18 U.S.C. § 3583(g).

Instead, it alleged that Latour committed three violations of the terms of his

supervised release, all of which concerned his failure to participate in an approved

drug treatment program. Moreover, the court never found that any of the

prerequisites for mandatory revocation existed. Because mandatory revocation

was not sought in this case, it is not plain that the district court was required to

consider substance abuse treatment as an alternative to incarceration.

      Second, Latour’s argument fails to satisfy the prejudice prong of our plain

error analysis. To show that an error has affected the defendant’s substantial

rights “almost always requires that the error ‘must have affected the outcome of

the district court proceedings.’” United States v. Rodriguez, 398 F.3d 1291, 1299

(11th Cir. 2005) (quoting United States v. Cotton, 535 U.S. 625, 632, 122 S.Ct.

1781, 1786 (2002)). The defendant’s burden here is a heavy one; he must

demonstrate a “reasonable probability of a different result” but for the error. Id.

Viewing the facts in a light most favorable to Latour, we do not find that he meets

this burden. His supervised release had already been revoked once before, and we

cannot say that the district court’s consideration of substance abuse treatment




                                           7
programs or other alternatives to incarceration would have changed the sentence it

chose.

         AFFIRMED.




                                        8
