FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

October 13, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-15783

Non-Argument Calendar

________________________

D. C. Docket No. 98-00007-CR-WDO-7

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

FRANK WESLEY, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Georgia

_________________________

(October 13, 2006)

Before BIRCH, DUBINA and HULL, Circuit Judges.

PER CURIAM:

Frank Wesley appeals his sentence of 36 months of imprisonment imposed

following revocation of his supervised release. We AFFIRM.
2

I. BACKGROUND

In September 2000, Wesley pled guilty to several counts of possession with

intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). He was

sentenced to a term of 110 months of imprisonment to be followed by five years of

supervised release. Because of Wesley's substantial assistance to the government,

the sentencing judge subsequently reduced his sentence to 85 months of

imprisonment. In August 2005, while Wesley was serving his supervised-release

term, his probation officer filed a petition alleging that Wesley had tested positive

for marijuana on five occasions, in violation of the terms of his supervised release. 

The probation officer recommended that Wesley’s supervised release be revoked. 

The district judge issued a summons ordering Wesley to appear to answer the

allegations set forth in the petition.

At his hearing, Wesley admitted the allegations and explained that he

believed that he was addicted to marijuana and wanted to receive treatment for his

addiction. He further requested that he not be imprisoned. Wesley’s mother

testified as to his good character and reported that he had been attending a drug

rehabilitation treatment program during his time on supervised release but that he

still had a problem with marijuana use. After hearing from Wesley and his mother

and stating that he had considered the policy statements in the Sentencing
Although the report calculating the Sentencing Guidelines range has not been included in 1

the record on appeal, both Wesley and the government agree that the Guidelines range was five to

eleven months of imprisonment. Appellant's Br. at 4; Appellee's Br. at 3.

 In a handwritten letter to the district court, filed more than two months after the revocation 2

hearing, Wesley asserted several claims of ineffective assistance of counsel. R1-175. Even if this

letter were construed to be a brief in support of a valid appeal, the ineffective assistance of counsel

claims are not ripe for review, because they were not resolved by the court below. Furthermore, the

arguments made in counsel’s brief must define the scope of the appeal, since that counsel has not

been discharged.

3

Guidelines, the district judge determined that Wesley had violated the terms of his

supervised release and sentenced him to 36 months of imprisonment. R2 at 7. The

district judge noted that 18 U.S.C. § 3583(g) required mandatory revocation of

Wesley's supervised release and concluded that an exception to that provision was

not warranted because of Wesley’s “ongoing use of marijuana, despite [his]

participation in a substance abuse treatment program.” Id. at 7-8. The judge noted

that this sentence was outside of the Sentencing Guidelines range of five to eleven

months of imprisonment, but he stated that the Guidelines range would be 1

“inadequate” for Wesley given his repeated marijuana use while on supervised

release. Id. at 7. The judge further recommended that Wesley be placed in a 500-

hour residential substance abuse treatment program while in the custody of the

Bureau of Prisons (“BOP”). Id. at 8. 2

On appeal, Wesley's counsel argues that the district judge plainly erred by

sentencing Wesley to the statutory maximum of 36 months of imprisonment rather
4

than within the Sentencing Guidelines range of five to eleven months of

imprisonment. He contends that the judge’s purpose for sentencing Wesley to 36

months of imprisonment was to facilitate his placement in the BOP’s intensive

500-hour drug rehabilitation program, although he has now received notice that he

will not be placed in that program. Wesley argues that the sentence imposed

defeats, rather than facilitates, the district judge’s intention. He further asserts that

the judge failed to consider any alternative to the maximum sentence specifically

by ignoring whether residential, inpatient treatment, combined with some term of

incarceration, would be more appropriate. Wesley's counsel argues that the

sentencing judge should have provided for a decrease in his sentence if the BOP

did not place him in the 500-hour program, as other sentencing judges have done in

similar situations. 

II. DISCUSSION

Since Wesley failed to object in district court on the grounds he asserts on

appeal, we review the revocation and sentence for plain error. United States v.

Gresham, 325 F.3d 1262, 1265 (11th Cir. 2003). Under the plain error standard,

Wesley “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. The test for showing that the error affected substantial
5

rights, and thus “'the outcome of the district court proceedings,'” is the formulation

of a reasonable probability of a different result, which means a probability

“'sufficient to undermine confidence in the outcome.'” United States v. Rodriguez,

398 F.3d 1291, 1299 (11th Cir.) (citations omitted), cert. denied, __ U.S. __, 125

S.Ct. 2935 (2005). An error cannot be plain unless the error is “'clear under

current law.'” United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000)

(per curiam) (citation omitted). Where neither the Supreme Court nor our court

has resolved an issue, that issue cannot be the subject of plain error. Id.

When confronted with a violation of supervised release, the sentencing judge

may, after considering the factors enumerated in 18 U.S.C. § 3553(a), among other

things, “revoke a term of supervised release, and require the defendant to serve in

prison all or part of the term of supervised release authorized by statute for the

offense that resulted in such term of supervised release.” 18 U.S.C. § 3583(e)(3). 

Among the factors listed in § 3553(a) are “the history and characteristics of the

defendant,” “the need . . . to promote respect for the law,” “the need . . . to provide

. . . correctional treatment,” and “any pertinent policy statement . . . issued by the

Sentencing Commission.” 18 U.S.C. § 3553(a). Moreover, we have held that a

district judge is permitted to consider rehabilitative goals in issuing a sentence

when imposing imprisonment after revocation of supervised release. United States
6

v. Brown, 224 F.3d 1237, 1240 (11th Cir. 2000).

The Guidelines for sentencing following revocation of supervised release are

meant to serve as policy statements only and were non-binding, even before United

States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). United States v. White, 416

F.3d 1313, 1318 (11th Cir. 2005) (per curiam). Therefore, after considering the

§ 3553(a) factors, a sentencing judge has discretion to deviate from the Guidelines

range up to the statutory maximum term for the offender’s violation. Id. Wesley’s

original crime of distributing fifty grams or more of cocaine base is a Class A

felony and results in a statutory maximum sentence of life imprisonment. 18

U.S.C. § 3559(a)(1). One who is under supervised release for the commission of a

Class A felony may be imprisoned for a maximum term of five years upon

revocation of supervised release. 18 U.S.C. § 3583(e)(3). Accordingly, Wesley’s

sentence of 36 months of imprisonment was within the statutorily authorized

range. 

The district judge considered testimony of both Wesley and his mother

regarding Wesley’s history and characteristics. The judge further stated that

Wesley's sentence was imposed after consulting the Sentencing Guidelines policy

statements; he additionally considered Wesley’s need for rehabilitative drug

treatment and recommended that he be enrolled in an intensive 500-hour program. 
7

The judge’s statements show his consideration of § 3553(a) factors, such as

Wesley’s history and characteristics, the need to provide the defendant with

corrective treatment, and the need to comply with the policy statements of the

Sentencing Commission.

Wesley's counsel argues that the sentence was plain error because its

purpose of providing rehabilitation has been frustrated by his inability to enroll in

the BOP’s 500-hour intensive treatment program. He notes that other sentencing

judges have conditioned a longer sentence upon the defendant’s ability to enroll in

intensive treatment. For example, Wesley cites Brown, where we affirmed the

reasonableness of a sentence imposed with such conditions. Brown, however, does

not stand for the proposition that a district judge must condition a sentence on a

defendant’s ability to enroll in a treatment program. Instead, Brown recognized

that, when supervised release is revoked under the mandatory provisions of

§ 3583(g), a district judge need not consider § 3553(a) factors such as the need for

corrective treatment. Brown, 224 F.3d at 1241. Consequently, there is no clear or

binding precedent requiring a sentence to be reduced if a desired treatment

program is found to be unavailable after the sentence has been imposed. Because

an error is not “plain error” unless it is “'clear under current law,'” the failure to

make Wesley’s sentence conditional upon the availability of the rehabilitation
8

program was not plainly erroneous. Aguillard, 217 F.3d at 1321 (citation omitted).

Moreover, there is no clear precedent requiring a court to consider local

inpatient treatment as an alternative to imprisonment. The district judge listened to

Wesley’s testimony regarding his struggle with marijuana addiction and noted that

an exception to the mandatory revocation provisions was not warranted because of

his continued marijuana use, despite his participation in a drug treatment program. 

Therefore, the judge’s refusal to provide for local inpatient treatment as an

alternative to incarceration was not plainly erroneous.

III. CONCLUSION

Wesley has appealed his 36-month sentence imposed following revocation

of his supervised release. Because Wesley’s sentence was within the statutory

maximum term and was imposed after consideration of the factors set forth in

§ 3553(a), it was not plainly erroneous. Accordingly, his 36-month sentence

imposed pursuant to revocation of his supervised release is AFFIRMED.