The Hon. Richard H. Kyle, United States District Judge for the District o f 1 Minnesota. United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-1534MN

_____________ United States of America, * * Appellee, * * On Appeal from the United v. * States District Court * for the District of * Minnesota. Kelly Jo Thornell, * * Appellant. *

___________ Submitted: October 24, 1997 Filed: November 6, 1997

___________ Before RICHARD S. ARNOLD, Chief Judge, LOKEN and HANSEN, Circuit Judges.

___________ RICHARD S. ARNOLD, Chief Judge.
Kelly Jo Th ornell appeals the fourteen-month sentence imposed by the District Court on revocation of her supervised release. Ms. Thornell claims that it wa s

1
unreaso nable for the District Court to sentence her to a term in excess of the rang e ind icated by the Sentencing Commission's policy statements on account of the need , perceived by the District Court, fo r intensive and continuous drug treatment. We hold-2-

th atthe action of the sentencing court was neither unreasonable nor an abuse o f discretion, and we therefore affirm.

Appellan t

was convicted on her plea of guilty to distribution of cocaine bas e ("crack") in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(B). The District Court , departing downward, sentenced her to 30 months in prison. She served the sentence and began a four-year term of supervised release. In late 1996, the

United States Probation Office submitted to the District Court a petition requesting that Ms. Thornell's supervis ed release be revoked, and that she be re turnedto prison. Numerous violations of the terms of her supervised release wer e alleged, including testing positive for cocaine on several occasions. Ms. Thornell has admitted these violations. After missing one scheduled appearance before the District Court , she appeared for a revocation hearing. Ms. Thornell asked to be placed in a half -way house for a term of four and one-half months. The non-binding polic y statements issued by the United States Sentencing Commi ssion, as applied to this case, would call for a term of three to nine months. The District Court imposed a term of 14 months' imprisonmen

t, to be served in a federal correctional institution. It recognized that it wa s departing upward from the policy statements, and that it was rejectin g defendant's half-way-house proposition, and ga ve the following reasons for this action:

I have already determined that she has violated th e terms of her supervised release. I am going to do something here that you

are not going to like. I will start out with that so we won't have any surprises. You don't have to wait with bated breath. You have got a problem and you have been, as fa r as I can tell, I will say incapable of dealing with it. I do n't say that in terms of passing judgment that you were a bad person, but until you get this problem solved or under-3- control you won't be a fit mother and you will be right back here a gain. We have gone through it from the beginning in this ca se. You were shipped off to the intensiv e co nfinement

program. You didn't survive that. You cam e back here and you tested positive for cocaine from th e outset. You were supposed to be down in my court here a week ago and you didn't make that appearance. I' m assu ming you are not doing this deliberately, trying to ru n counter to the Court's wishes, but that you have a proble m that you are unable to control. An d tough as it is, and I think it is tough, I am going to take the position that we have got to get that proble m solved or I think the foster parent issue pales by comparison, because they 're not going to give you these children back if you continue to have this prob lem. The only hope you have of maintaining any relationship with your children is to get yoursel f into a program which is going to take longer tha n four or six months and it's not goingto be done around here.

So it is the judgment of this Court that you b e sentence d to the custody of the Bureau of Prisons for a period of 14 months, and at the c onclusion of the 14 months there will be no further supervised release. The court wil l terminate further supervised release. I t 's the Court's recommendation that you be enrolled in what I have had described for me as the 500-hour dru g treatment program, which program is available either at the feder al facility in Alderson, [West] Virginia or the federa l facilit y at Lexington, Kentucky. And it's the Court' s recommendation t

hat you be sent to either one of those two facilities. It's further the Court's recommendation that there be an expedited transfer coordinated by the probation office-4- and the U.S. Marshal's Office so that this program can begin as soon as possible. As I say, Ms. Thornell, this is not a decision that I take lightly. I recogni ze it has all kinds of problems with it, but I think that it is time in your life to give it a shot, give it asufficient amount of time where you're not going to hav e any distractions, where you are not going to be able to walk away from the program.
Sentencing transcript 7-9.
On appeal , defendant contends that it was unreasonable and an abuse o f discretion f

or the District Court to consider her need for drug treatment. We se e nothi ng unreasonable about the District Court's action, which appears to us to hav e been judicious and carefully tailored to the needs of this particular case and thi s partic ular offender. The District Court is authorized by statute to consider, amon g other factors, the defendant's history and characteristics and her need for education , medical care, or other correctional tre atment. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(D). That is what the Court did here. It was not convinced tha t defendant would receive the treatment she needed at a half-way house, given defendant's history of failure in both inpatient and outpatient tre atment programs after her release from prison. In addition, the Court believed that the best chance that defendant had of retaining her parenta l rights a nd being reunited with her children lay in the intensive residential treatmen t program that would be available from the Bureau of Prisons. We have previously upheld a sentencing court's revocation of supervised release, and imposi tion of a new sentence in excess of the guidelines contained in the polic y statements, in virtually identical circumsta nces. See United States v. Johnson , 16 F.3d 12 29 (8th Cir. 1994) (table), 1994 WL 5163 (per curiam). We note, in addition, that-5-

the 14-month se ntence imposed was well within the statutory maximum of two years.
Affirmed. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.