FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 05 2000

THOMAS K. KAHN

CLERK

 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 99-13358

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D.C. Docket No. 97-00050-CR-1-CB-003

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JENNIFER AGUILLARD,

Defendant-Appellant.

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Appeal from the United States District Court for the

Southern District of Alabama

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(July 5, 2000)

Before CARNES and MARCUS, and FARRIS*

, Circuit Judges.

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*

Honorable Jerome Farris, U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
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PER CURIAM:

Jennifer Ford Aguillard appeals her 24-month sentence imposed upon

revocation of supervised release, contending that it is too long. 

Aguillard concedes that 18 U.S.C. § 3583 authorizes the district court to

revoke her term of supervised release and impose a maximum term of two years’

imprisonment. But she argues that although the policy statements of chapter seven

of the sentencing guidelines are not binding, the sentencing court must at least

consider them in revocation proceedings. Aguillard points out that under U.S.S.G.

§ 7B1.4 she would be subject to a three- to nine-month term of imprisonment, 

and that two-year terms of imprisonment generally are reserved for more serious

offenders and offenses. 

Aguillard further argues that the district court imposed the maximum

sentence solely for the purpose of ensuring that she would undergo comprehensive

drug abuse rehabilitation treatment, including mental health counseling. She

argues that sentencing solely for rehabilitative program purposes is contrary to this

Court’s decision in United States v. Harris, 990 F.2d 594 (11th Cir. 1993).

We review a district court’s decision to exceed the chapter seven guidelines’

recommended sentencing range for an abuse of discretion. See United States v.
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Hofierka, 83 F.3d 357, 361-62 (11th Cir. 1996). Where a defendant raises a

sentencing argument for the first time on appeal, we review for plain error. See

United States v. Stevenson, 68 F.3d 1292, 1294 (11th Cir. 1995). The plain error

standard is applicable here, because in the district court Aguillard did not raise the

specific issues she raises now. There is a difference between arguing that a longer

sentence is unnecessary for rehabilitation, and arguing that rehabilitative programs

may not be taken into account in deciding the length of the sentence. 

“For this Court to correct plain error: (1) there must be error; (2) the error

must be plain; and (3) the error must affect substantial rights.” Id. at 1294. The

district court did not commit plain error when it sentenced Aguillard to the

24-month statutory maximum term of imprisonment. That period is a permissible

term of imprisonment under 18 U.S.C. § 3583(e)(3) & (g). We have held that the

chapter seven guidelines are merely advisory, and it is enough that there is some

indication the district court was aware of and considered them. See Hofierka, 83

F.3d at 361. In this case, the district court explicitly mentioned those guidelines

and decided the sentence they recommended was inadequate under the

circumstances. The court was not required to apply the § 7B1.4 recommended

sentence. See id. 
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That leaves Aguillard’s argument that the district court erred in basing the

length of her sentence on the prospects of her receiving drug rehabilitation

treatment. In United States v. Harris, 990 F.2d 594, 597 (11th Cir. 1993), we did

say that “it is inappropriate to imprison or extend the term of imprisonment of a

federal drug defendant for the purpose of providing him with rehabilitative

treatment.” However, Harris involved an initial sentencing, not a sentence being

imposed upon the revocation of supervised release. Moreover, that case involved a

guidelines requirement (about concurrent versus consecutive sentences) which the

district court violated, not an advisory guideline which the court could follow or

not. See id. at 595 - 96. Accordingly, despite some broad dicta in the Harris

opinion, that decision could not have held anything about whether a sentence

imposed upon revocation of supervised release may be influenced or extended up

to the maximum for the purpose of making rehabilitative programs more available

to the defendant. See United States v. Hunter, 172 F.3d 1307, 1309 (11th Cir.

1999) (Carnes, J., concurring) (“The holdings of a prior decision can reach only as

far as the facts and circumstances presented to the Court in the case which

produced that decision.”).

That is an issue of first impression in this circuit, but six circuits have

addressed the issue. All six of them agree that it is not improper to take the
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availability of rehabilitative programs into account in deciding the length of

sentence up to the maximum upon revocation of supervised release. See United

States v. Anderson, 15 F.3d 278 (2d Cir. 1994); United States v. McGhee, 85 F.3d

618 (4th Cir. 1996) (unpublished table decision); United States v. Giddings, 37

F.3d 1091 (5th Cir. 1994); United States v. Jackson, 70 F.3d 874 (6th Cir. 1995);

United States v. Harlow, 124 F.3d 205 (7th Cir. 1997) (unpublished table

decision); United States v. Shaw, 180 F.3d 920 (8th Cir. 1999).

We have held that an error cannot meet the “plain” requirement of the plain

error rule unless it is “clear under current law.” United States v. Humphrey, 164

F.3d 585, 587 (11th Cir. 1999) (quoting United States v. Olano, 507 U.S. 725,

734, 113 S.Ct. 1770, 1777 (1993)). We have also held that where neither the

Supreme Court nor this Court has ever resolved an issue, and other circuits are split

on it, there can be no plain error in regard to that issue. See Humphrey, 164 F.3d at

588; accord United States v. Magluta, 198 F.3d 1265, 1280 (11th Cir. 1999) (“As

we have explained in Humphrey, a district court’s error is not “plain” or “obvious”

if there is no precedent directly resolving an issue.”). Here, not only is there no

Supreme Court or Eleventh Circuit precedent on the issue, the six circuits that have

addressed it have all resolved the issue the same way the district court did,

deciding that rehabilitative programs may be considered in determining the length
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of a sentence imposed upon revocation of supervised release. It follows that the

district court did not commit plain error in doing so.

AFFIRMED.