USA v. Philip Furino

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 12, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-15510
Non-Argument Calendar
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D.C. Docket Nos. 9:10-tp-80003-DMM-1,
9:10-tp-80041-DMM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
PHILIP FURINO,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 12, 2012)
Before BARKETT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Philip Furino appeals the district court’s revocation of his supervised release
and his resulting term of imprisonment. He argues that there was insufficient

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evidence to establish that he violated the conditions of his supervised release.
After a thorough review, we affirm.
In 1992, Furino was convicted of conspiracy to distribute cocaine and
sentenced to 210 months’ imprisonment and 5 years of supervised release. While
serving his sentence, Furino was charged with and pleaded guilty to possession
with intent to distribute marijuana and possession of marijuana while an inmate.
He was sentenced to six months’ imprisonment to run consecutively to the prior
sentence and three years of supervised release. Furino completed his prison terms1
in 2009 and his period of supervised release commenced.
On July 27, 2010, Furino tested positive for cocaine use. He later signed an
admission-of-drug-use form, admitting that he smoked incense through a crack
pipe. In December 2010, Furino was arrested for violating the terms of his
supervised release. The probation officer identified seven violations, including
the use of cocaine (violation 1) and possession with intent to sell prescription pills
(violation 2).
Furino admitted all but violations 1 and 2. At the revocation hearing, the
district court heard evidence that Furino had tested positive for cocaine. Probation
The judgment and conviction did not specify whether the supervised release term was1
to run concurrently with, or consecutive to, the five-year term Furino already faced.
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Officer Peggy Bates testified that Furino had tested positive for marijuana on two
previous occasions but that the probation office treated these violations with drug
counseling. Bates explained that after the positive drug test on July 27, Furino
told her that he had smoked an herbal blend called “Mr. Nice Guy” using someone
else’s pipe. He described the pipe as a glass pipe with a bowl in it. Furino denied
using cocaine and stated that “unbeknown to me the person used crack a few days
earlier and the residue caused me to show positive for cocaine.”
Martin Bigenho, the probation officer assistant who conducted Furino’s
drug screening, testified that Furino tested positive for cocaine. He admitted that
it was possible for a person to test positive by smoking incense through someone
else’s crack pipe. He explained that the screening test could not distinguish
between someone who smoked a little cocaine the night before and someone who
had smoked a lot of cocaine a week earlier.
The government then presented evidence of violation 2, specifically that
police conducting a traffic stop found numerous pill bottles in the car. The bottles
were in Furino’s and other peoples’ names. Police also found a notebook with
names and amounts listed, along with the words “meth” and “blue,” which an
officer testified was a nickname for oxycodone.
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Furino did not testify at the revocation hearing. Counsel argued that there
was insufficient evidence to establish the violations of supervised release. The
district court found that Furino violated the terms of his release, as evidenced by
the positive drug test. The court then stated that the more serious violation was
violation 2, the sale of prescription pills, and the evidence was sufficient to
establish that violation as well. The court then sentenced Furino to 36 months’
imprisonment. This is Furino’s appeal.
We review the district court’s revocation of supervised release for an abuse
of discretion. United States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th
Cir. 2008). Even if the district court commits an error, the sentence should be
affirmed if the error was harmless. United States v. Mathenia, 409 F.3d 1289,
1291–92 (11th Cir. 2005). “A non-constitutional error is harmless if, viewing the
proceedings in their entirety, a court determines that the error did not affect the
sentence, or had but very slight effect.” Id. at 1292 (quotations and alteration
omitted). We may affirm on any adequate ground, regardless of whether it is one
on which the district court relied. United States v. Samaniego, 345 F.3d 1280,
1283 (11th Cir. 2003).
A district court may revoke a term of supervised if it “finds by a
preponderance of the evidence that the defendant violated a condition of
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supervised release.” 18 U.S.C. § 3583(e)(3). A district court’s findings made at a
revocation proceeding are binding unless clearly erroneous. United States v.
Almand, 992 F.2d 316, 318 (11th Cir. 1993). “The credibility of a witness is in the
province of the factfinder and we will not ordinarily review its determination of
credibility.” United States v. Brown, 415 F.3d 1257, 1267 (11th Cir. 2005)
(citation omitted).
Here, the district court did not clearly err in finding that Furino violated the
terms of his release. The urinalysis test unequivocally demonstrated that Furino
ingested cocaine, thus establishing violation 1. The court rejected Furino’s
assertion that he did not know about the cocaine, finding that it was unlikely that
he ingested cocaine by smoking incense through a pipe that, unbeknownst to him,
had cocaine residue inside. We generally will not review the district court’s
credibility determinations. See Brown, 415 F.3d at 1267.
Even if the district court erred with regard to violation 1, the court properly
revoked Furino’s supervised release based on his other violations. The court
noted that violation 2 was the more serious offense, and the court based the 36-
month sentence on its finding that Furino had possessed with intent to sell
prescription pills and on his long history of drug convictions. Although Furino
challenged the allegations of violation 2 during the revocation proceedings, he
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does not do so now. Thus, he has abandoned this issue. United States v. Jernigan,
341 F.3d 1273, 1283 n.8 (11th Cir. 2003). Nevertheless, the court’s comments
regarding violation 2 indicated that this violation was the basis for the court’s
belief that 36 months was an appropriate sentence.
Accordingly, we affirm the district court’s revocation of supervised release
and the sentence imposed upon revocation.
AFFIRMED.
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