[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 09-14160 ELEVENTH CIRCUIT FEBRUARY 19, 2010 Non-Argument Calendar JOHN LEY ________________________ CLERK
D. C. Docket No. 09-00255-CR-1-JEC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KIRK MCBEAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Georgia _________________________
(February 19, 2010)
Before TJOFLAT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Kirk McBean appeals his sentence of ten months of imprisonment and three years of supervised release following the revocation of his supervised release, 18
U.S.C. § 3583(e). The district court ruled that McBean violated a term of his
supervised release by failing to comply with instructions of a probation officer that
McBean not visit his wife. We affirm.
I. BACKGROUND
On September 25, 2003, McBean pleaded guilty to possession with the
intent to distribute cocaine. McBean was sentenced to 80 months of imprisonment
and five years of supervised release. McBean was released from prison on July 3,
2008.
McBean's probation officer filed a petition to modify the terms of McBean's
supervised release. The probation officer requested the district court require that
McBean complete a mental health treatment program. In support of the request for
modification, the probation officer explained that McBean had allegedly assaulted
his wife and McBean had exhibited "anger control issues." On October 6, 2008,
the district court modified McBean's supervised release to require that McBean
attend counseling.
On February 17, 2009, a probation officer petitioned to revoke McBean's
supervised release. The petition stated that McBean had violated six conditions of
his supervised release, including the failure to comply with the instruction that
McBean complete counseling before residing with his wife. According to the
petition, on December 3, 2008, McBean's wife reported that McBean had moved
home, and on December 4, a probation officer discovered McBean in his wife's
house.
On June 9, 2009, a probation officer filed an amended petition to revoke.
The amendment stated that McBean on two other occasions had failed to comply
with an oral instruction to refrain from contacting his wife: on December 23, 2008,
McBean returned to his wife's house, where he "was involved in a domestic
altercation"; and in March 2009, McBean "contacted his wife in a threatening
manner," which violated a temporary restraining order issued by a Georgia court.
At the hearing to revoke, McBean admitted the violations. McBean's
attorney referred to the violations as "technical" and argued that in December 2008
McBean had visited his wife's home at her request. The district court proceeded to
discuss briefly with McBean's attorney the facts underlying McBean's visits to his
wife's house and the restraining order.
The government and McBean submitted a joint recommendation that the
district court reincarcerate McBean for ten months, and then release him without
supervision. The district court found that supervised release was necessary for
"somebody that has given this many manifestations of anger issues and anger
toward a particular person." McBean admitted that