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United States v. Carter

October 21, 1998

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
EDWARD CHARLES CARTER, DEFENDANT-APPELLANT.



Before: Harry Pregerson, Dorothy W. Nelson, and Sidney R. Thomas, Circuit Judges.

The opinion of the court was delivered by: Pregerson, Circuit Judge

FOR PUBLICATION

D.C. No. CR-97-00503- DWW-1

Appeal from the United States District Court for the Central District of California David W. Williams, Senior District Judge, Presiding

Submitted October 9, 1998* Pasadena, California

Opinion by Judge Pregerson

COUNSEL

Edward Charles Carter appeals the conditions of his supervised release imposed by the district court. On November 24, 1997, the court sentenced Carter to 70 months imprisonment followed by five years of supervised release for the armed robbery of a letter carrier in violation of 18 U.S.C. S 2114(a). As conditions of his supervised release, the district court ordered Carter to participate in outpatient substance abuse treatment, to submit to drug and alcohol testing, to abstain from using illicit drugs and alcohol, and to abstain from abusing prescription drugs. Carter argues that the district court abused its discretion by requiring him to submit to drug and alcohol testing and to undergo substance abuse treatment when there was no evidence before the district court that Carter had a history of drug or alcohol abuse. We affirm.

STATEMENT OF FACTS

On February 22, 1997, armed with a handgun, Carter robbed a mail carrier. Two days later, postal inspectors searched Carter's residence and discovered six State of California checks. The checks were not addressed to Carter or to the person with whom he shared the residence. On March 28, 1997, postal inspectors unsuccessfully attempted to arrest Carter, who had fled his residence. On March 31, 1997, Carter left a voicemail message for Postal Inspector Michael Delaney in which Carter admitted to possession of the checks, but denied that he robbed the mail carrier. Carter went on to state that "if you want me, you're going to get me dead, cause I cannot afford to go to jail the rest of my life. " On May 15, 1997, postal inspectors arrested Carter. On the first day of trial, August 5, 1997, Carter pled guilty to robbing the mail carrier, but denied having committed an armed robbery. Thus, Carter went to trial on whether he violated 18 U.S.C. S 2114(a) by using a dangerous weapon. On August 6, 1997, a jury convicted Carter of that charge.

At sentencing, the district court adopted the recommendations of the probation officer, ordering that Carter be placed on supervised release for five years upon release from prison. Carter's supervised release was subject to the conditions that he "participate in outpatient substance abuse treatment and submit to drug and alcohol testing, . . . abstain from using illicit drugs, alcohol, and abusing prescription medications during the period of supervision." The probation officer justified this recommendation "based on the past allegations of possible suicide by overdose," referring to a February 25, 1997, incident where Carter was taken to a hospital following a 9-1-1 call during which he stated that he had taken pills and that he no longer wanted to live. Carter later claimed that he did not attempt suicide, but rather had overdosed on his migraine medication because of the severity of his headaches. The probation officer also recommended psychological counseling.

In his sentencing position paper, Carter objected to the proposed terms of his supervised release. Carter argued that it was inappropriate for the district court to require him to undergo drug and alcohol treatment and testing upon release because he had no history of drug abuse, and because his crime was not drug or alcohol related. The district court rejected Carter's argument, stating that:

"I don't think it will be inappropriate. This defendant is far from being a stable person. . . . [Y]our argument is that he hadn't been caught at it. But it is an appropriate requirement that he submit to that testing and if he passes it, why so be it. It will be all for the good. If he doesn't, it will be helpful to him to give him ...


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