USCA1 Opinion
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 94-1785
UNITED STATES,
Appellee,
v.
FREDERICK L. THURLOW IV,
A/K/A LEE MCQUADE,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Coffin, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Tina Schneider for appellant.
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Margaret D. McGaughey, Assistant United States Attorney, with
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whom Jay P. McCloskey, United States Attorney, and John S. Gleason,
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Assistant United States Attorney, were on brief for appellee.
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January 19, 1995
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Per Curiam. Defendant Frederick Thurlow appeals
Per Curiam.
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from the district court's imposition of a special condition
of supervised release. Thurlow was sentenced following a
guilty plea to three counts of an eleven-count indictment
that alleged possession of stolen mail, theft of property
used by the United States Postal Service and other offenses
resulting from a crime spree engaged in by Thurlow and a
coconspirator. As part of a three-year sentence of
supervised release, the district court ordered Thurlow to
abstain from the use or possession of alcohol and illegal
drugs during this period. Thurlow argues that the
requirement of total abstinence from alcohol was an
unwarranted abuse of discretion. We do not agree.
Thurlow argues that U.S.S.G. 5D1.3(b), which
requires that special conditions imposed by the court be
"reasonably related to the nature and circumstances of the
offense and the history and characteristics of the
defendant," does not authorize the type of special condition
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imposed.1 Specifically, Thurlow claims that he exhibited no
particular attributes warranting the condition imposed.
Thurlow argues too much. Thurlow comes from a
family with an active history of alcohol abuse and his record
indicated that substance abuse was and continued to be a
serious problem for him. Indeed, Thurlow's counsel admitted
as much in the presentence conference before the district
court. Cf. United States v. Ruiz-Garcia, 886 F.2d 474, 476
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(1st Cir. 1989) (concessions voluntarily made during
sentencing cannot be withdrawn absent extraordinary
circumstances). Moreover, the record reveals that Thurlow
used proceeds from the crime spree to purchase alcohol on
several occasions. The district court gave thorough
consideration to the defendant's history in reaching its
decision to impose the special condition. Accordingly, we
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1. U.S.S.G. 5D1.3 provides in relevant part:
(b) The court may impose other
conditions of supervised release, to the
extent that such conditions are
reasonably related to (1) the nature and
circumstances of the offense and the
history and characteristics of the
defendant, and (2) the need for the
sentence imposed to afford adequate
deterrence to criminal conduct, to
protect the public from further crimes of
the defendant, and to provide the
defendant with needed educational or
vocational training, medical care, or
other correctional treatment in the most
effective manner. 18 U.S.C.
3553(a)(2) and 3583(d).
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find no abuse of discretion. See United States v. Johnson,
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998 F.2d 696, 699 (9th Cir. 1993) (no abuse of discretion to
impose, along with other restrictions, condition requiring
that defendant abstain from alcohol use where defendant had
history of substance abuse and had been involved in alcohol-
related incidents).2
The decision of the district court to impose the
special condition of supervised release is affirmed.3
affirmed
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2. The cases cited by Thurlow are not apposite. He relies
principally on United States v. Prendergast, 979 F.2d 1289,
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1292-93 (8th Cir. 1992), in which the Eighth Circuit held
that the district court abused its discretion in requiring,
inter alia, the complete abstinence from alcohol.
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Prendergast is off the mark, however, because in that case
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there was no evidence that the defendant had a history of
alcoholism. Id. See also United States v. Stoural, 990 F.2d
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372 (8th Cir. 1993) (relying on Prendergast to reverse
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imposition of condition requiring abstinence from alcohol).
3. In so holding, we do not give approval to the imposition
of such a special condition as a standard practice without
evidentiary support for it in the record.
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