from the United States District Court for the Northern
District of Texas
STEWART, Chief Judge, and WIENER and PRADO, Circuit Judges.
C. PRADO, Circuit Judge:
John Hoke Brooker pleaded true to violating numerous
conditions of his supervised release. The district judge
accordingly revoked Brooker's term of supervised release
and sentenced him to an additional twenty-four months'
imprisonment. Brooker appeals this revocation. We AFFIRM.
2011, Brooker pleaded guilty to one count of possession of a
counterfeit obligation under 18 U.S.C. § 472 and was
thereafter sentenced to 70 months' imprisonment and a
three-year term of supervised release. Brooker's term of
supervised release began on June 26, 2015.
10, 2016, the government moved to revoke Brooker's term
of supervised release. The government alleged Brooker had
violated the conditions of his supervised release by: (1)
using and possessing methamphetamine multiple times; (2)
failing numerous drug tests; (3) refusing to participate in
substance abuse treatment counseling; and (4) failing to make
consistent payments toward a fine imposed on him as part of
his sentence. At a revocation hearing on May 12, 2016,
Brooker pleaded true to these violations and the district
court revoked Brooker's term of supervised release. The
district court then heard testimony, argument, and allocution
from the defense. Thereafter, the district court detailed
Brooker's criminal history and sentenced him to 24
months' imprisonment and no supervised release, noting
that the previous supervision had not "done a bit of
good." Brooker objected to the length of the sentence
and the court's alleged failure to consider a drug
treatment program in lieu of imprisonment. This appeal
followed. On appeal, Brooker also argues the district court
erred by failing to give him a meaningful opportunity for
allocution because he was not permitted to address the court
before the judge voiced his intent to revoke Brooker's
decision to revoke supervised release is generally reviewed
for an abuse of discretion. United States v.
McCormick, 54 F.3d 214, 219 (5th Cir. 1995). We then
"review a sentence imposed on revocation of supervised
release under a 'plainly unreasonable' standard, in a
two-step process." United States v. Warren, 720
F.3d 321, 326 (5th Cir. 2013). First, we "ensure that
the district court committed no significant procedural
error." Id. (quoting United States v.
Kippers, 685 F.3d 491, 497 (5th Cir. 2012)). Second,
"[i]f the district court's sentencing decision lacks
procedural error, this court . . . considers the substantive
reasonableness of the sentence imposed." Id.
(quoting Kippers, 685 F.3d at 497). "If we find
the sentence unreasonable, we may reverse the district court
only if we further determine 'the error was obvious under
existing law.'" Id. (quoting United
States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011).
Where a defendant fails to object before the district court,
"errors resulting from a denial of the right of
allocution under Rule 32 are subject to plain error
review." United States
v. Reyna, 358 F.3d 344, 350 (5th Cir. 2004) (en banc).
of supervised release is mandatory under certain
circumstances. 18 U.S.C. § 3583(g). Among other things,
revocation is required where a defendant "possesses a
controlled substance, " "refuses to comply with
drug testing imposed as a condition of supervised release,
" or "as a part of drug testing, tests positive for
illegal controlled substances more than 3 times over the
course of 1 year." 18 U.S.C. § 3583(g). That said,
18 U.S.C. § 3583(d) provides that where a defendant
fails a drug test, "[t]he court shall consider whether
the availability of appropriate substance abuse treatment
programs, or an individual's current or past
participation in such programs, warrants an exception . . .
from the rule of section 3583(g)."
Brooker's arguments on appeal rely on an underlying
proposition that he fits within § 3583(d)'s
treatment exception. Because Brooker's term of supervised
release was revoked both due to drug possession and his
refusal to comply with drug testing-not just because he
failed a drug test-it is unclear whether Brooker qualifies
for the treatment exception under our existing case law.
While this Court has not annunciated a rule in a published
opinion, we have several times declined to apply the
treatment exception where the established violations of a
defendant's conditions of supervised release included
more than failing a drug test. See United States v.
Turlich, 440 F.App'x 282, 282-83 (5th Cir. 2011)
(per curiam); United States v. Kindley, 271
F.App'x 429 (5th Cir. 2008) (per curiam); United
States v. Harper, 34 F.App'x 150 (5th Cir. 2002)
these unpublished cases, we remain concerned that it may be
unwise to unnecessarily limit the situations in which a
district judge is required to consider substance abuse
treatment in lieu of imprisonment. Most circuits have
determined that a judge may infer drug possession from a
defendant's positive drug test. See United States v.
Trotter, 270 F.3d 1150, 1153 (7th Cir. 2001); United
States v. Crace, 207 F.3d 833, 836-37 (6th Cir. 2000);
United States v. Clark, 30 F.3d 23, 25 (4th Cir.
1994); United States v. Dow, 990 F.2d 22, 24 (1st
Cir. 1993); United States v. Rockwell, 984 F.2d
1112, 1114- 15 (10th Cir. 1993), abrogated on other
grounds by Johnson v. United States, 529 U.S. 694
(2000); United States v. Almand, 992 F.2d 316, 318
(11th Cir. 1993); United States v. Courtney, 979
F.2d 45, 49 (5th Cir. 1992); United States v.
Blackston, 940 F.2d 877, 878 (3d Cir. 1991); United
States v. Baclaan, 948 F.2d 628, 630 (9th Cir. 1991).
Indeed, this inference is logical: a positive drug test
necessarily requires possession. Crace, 207 F.3d at
such an inference is permitted and we continue to strictly
apply the rule we have implemented in our unpublished case
law, we are essentially authorizing a district court to
ignore the possibility of substance abuse treatment in the
very situation where § 3583 requires it-when a defendant
tests positive for a controlled substance. Under such an
approach, district courts would be permitted to infer that a
defendant with a single positive drug test (the condition
triggering the treatment exception) possessed the drug in
question (a condition necessitating mandatory revocation
under § 3583(g)(1)) and would thereby almost never be
required to consider substance abuse treatment in lieu of
imprisonment. However, we need not reach this issue because
clarifying when a district court is required to consider the
treatment exception under § 3583(d) would not change the
outcome of our decision.
if the district court was required to consider the treatment
exception under § 3583(d), the record does not indicate
that it failed to do so. As we have previously said, a
district court is not required to engage in "checklist
recitation" of sentencing factors at a revocation
hearing. Kippers, 685 F.3d at 498 (quoting
United States v. Smith, 440 F.3d 704, 707 (5th Cir.
2006)). Implicit consideration is all that is required.
Id. And other circuits have persuasively expanded
this concept to the situation where a district court is
required to consider substance abuse treatment in lieu of
imprisonment. United States v. Hammonds, 370 F.3d
1032, 1038-39 (10th Cir. 2004) (finding the district court
did not abuse its discretion by revoking the defendant's
supervised release rather than placing him in substance abuse
treatment because there was "no indication the court did
not recognize that it could grant the exception");
Crace, 207 F.3d at 835-36 (holding that no
"magic words" are required to demonstrate that a
district court considered substance abuse treatment). Where,
for instance, the defendant argues to the district court that
a substance abuse treatment program should be imposed and the
court still revokes supervised release, it is understood that
the court implicitly considered and rejected application of
the drug treatment exception. See Hammonds, 370 F.3d
at 1039 (determining that the district court implicitly