The Hon. Richard H. Kyle, United States District Judge for the District of

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Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-1534MN

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United States of America, *

*

Appellee, *

* On Appeal from the United

v. * States District Court

* for the District of

* Minnesota.

Kelly Jo Thornell, *

*

Appellant. *

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Submitted: October 24, 1997

Filed: November 6, 1997

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

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RICHARD S. ARNOLD, Chief Judge.

Kelly Jo Thornell appeals the fourteen-month sentence imposed by the District

Court on revocation of her supervised release. Ms. Thornell claims that it was

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unreasonable for the District Court to sentence her to a term in excess of the range

indicated by the Sentencing Commission's policy statements on account of the need,

perceived by the District Court, for intensive and continuous drug treatment. We hold
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that the action of the sentencing court was neither unreasonable nor an abuse of

discretion, and we therefore affirm. 

Appellant was convicted on her plea of guilty to distribution of cocaine base

("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 supervised release be revoked, and that she be

returned to prison. Numerous violations of the terms of her supervised release were

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 policy

statements issued by the United States Sentencing Commission, as applied to this case,

would call for a term of three to nine months. The District Court imposed a term of 14

months' imprisonment, to be served in a federal correctional institution. It recognized

that it was departing upward from the policy statements, and that it was rejecting

defendant's half-way-house proposition, and gave the following reasons for this action:

I have already determined that she has violated the

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 far as I can tell, I will say incapable of dealing with it. I

don't say that in terms of passing judgment that you were a

bad person, but until you get this problem solved or under
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control you won't be a fit mother and you will be right back

here again. We have gone through it from the beginning in

this case. You were shipped off to the intensive

confinement program. You didn't survive that. You came

back here and you tested positive for cocaine from the

outset. You were supposed to be down in my court here a

week ago and you didn't make that appearance. I'm

assuming you are not doing this deliberately, trying to run

counter to the Court's wishes, but that you have a problem

that you are unable to control. 

And tough as it is, and I think it is tough, I am going

to take the position that we have got to get that problem

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 problem. The only hope you have

of maintaining any relationship with your children is to get

yourself into a program which is going to take longer than

four or six months and it's not going to be done around here.

So it is the judgment of this Court that you be

sentenced to the custody of the Bureau of Prisons for a

period of 14 months, and at the conclusion of the 14 months

there will be no further supervised release. The court will

terminate further supervised release. 

It's the Court's recommendation that you be enrolled

in what I have had described for me as the 500-hour drug

treatment program, which program is available either at the

federal facility in Alderson, [West] Virginia or the federal

facility at Lexington, Kentucky. And it's the Court's

recommendation that 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
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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 recognize 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

a sufficient amount of time where you're not going to have

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 of

discretion for the District Court to consider her need for drug treatment. We see

nothing unreasonable about the District Court's action, which appears to us to have

been judicious and carefully tailored to the needs of this particular case and this

particular offender. The District Court is authorized by statute to consider, among

other factors, the defendant's history and characteristics and her need for education,

medical care, or other correctional treatment. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(D).

That is what the Court did here. It was not convinced that defendant would receive the

treatment she needed at a half-way house, given defendant's history of failure in both

inpatient and outpatient treatment programs after her release from prison. In addition,

the Court believed that the best chance that defendant had of retaining her parental

rights and being reunited with her children lay in the intensive residential treatment

program that would be available from the Bureau of Prisons. 

We have previously upheld a sentencing court's revocation of supervised release,

and imposition of a new sentence in excess of the guidelines contained in the policy

statements, in virtually identical circumstances. See United States v. Johnson, 16 F.3d

1229 (8th Cir. 1994) (table), 1994 WL 5163 (per curiam). We note, in addition, that
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the 14-month sentence imposed was well within the statutory maximum of two years.

Affirmed. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.