Filed: Nov. 25, 1992
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 91-8492 _ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DANE CLARK COURTNEY, Defendant-Appellant. _ Appeal from the United States District Court for the Western District of Texas _ (November 25, 1992) Before BROWN, GARWOOD, and DEMOSS, Circuit Judges. GARWOOD, Circuit Judge: The district court, by order dated August 16, 1991, revoked appellant Dane Clark Courtney's six-year term of supervised release for possession of cocaine and,
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 91-8492 _ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DANE CLARK COURTNEY, Defendant-Appellant. _ Appeal from the United States District Court for the Western District of Texas _ (November 25, 1992) Before BROWN, GARWOOD, and DEMOSS, Circuit Judges. GARWOOD, Circuit Judge: The district court, by order dated August 16, 1991, revoked appellant Dane Clark Courtney's six-year term of supervised release for possession of cocaine and, ..
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 91-8492
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANE CLARK COURTNEY,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court for the
Western District of Texas
______________________________________________
(November 25, 1992)
Before BROWN, GARWOOD, and DEMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
The district court, by order dated August 16, 1991, revoked
appellant Dane Clark Courtney's six-year term of supervised release
for possession of cocaine and, pursuant to 18 U.S.C. § 3583(e) &
(g), required him to serve twenty-four months imprisonment,
followed by three years of supervised release. He brings this
appeal, challenging his sentencing and the determination that he
possessed cocaine. We vacate and remand.
Facts and Proceedings Below
On July 11, 1989, Dane Clark Courtney (Courtney) was indicted
for distributing "crack" cocaine on a playground on June 27, 1989,
contrary to 21 U.S.C. §§ 841(a)(1) & 845a (now § 860). Courtney
pleaded guilty to the charged offense on September 25, 1989.
During his presentence interview, Courtney admitted that he had
been using "crack" for approximately one and one-half years, and
that he progressed from using "crack" once a day to a maximum of
four times a day until the day of his arrest. Dr. Steven L. Mark
evaluated Courtney and gave his opinion that Courtney was dependent
on the drug at the time of the offense. On November 17, 1989,
Courtney was sentenced by the district court to twenty-seven
months confinement followed by six years of supervised release. On
May 1, 1991, he began his supervised release at a halfway house.
Courtney began his visits with his probation officer, LaDonna
Jackson (Jackson) on June 27, 1991. On his next two visits on July
1, 1991, and July 9, 1991, he submitted urine samples which tested
positive for cocaine metabolite. Courtney denied to Jackson using
drugs on either occasion and explained to her that the drugs might
have entered his system by "kissing a girl," and that he had a
number of girlfriends.
On July 30, 1991, a motion was filed to revoke Courtney's
release for having "used and possessed cocaine on or about July 1,
1991 and July 9, 1991." A hearing on this motion was held before
the sentencing district judge on August 15, 1991. At the hearing,
Courtney, represented by counsel, pleaded "not true." Jackson
testified to the taking of the samples and Courtney's statements to
her regarding the results as above related. She explained that the
laboratory performed the tests pursuant to a contract to do such
testing for United States Probation offices. On cross-examination,
2
she stated that in her experience and training, an illegal drug,
such as cocaine, will remain in an individual's system for a
maximum of approximately seventy-two hours. Jackson also testified
on cross-examination that the laboratory analysis did not indicate
a specific quantity or amount of cocaine in the urine samples, but
that the laboratory will not issue a positive result unless the
sample reveals at least 300 nanograms per milliliter of cocaine
metabolite. There was no objection to any of Jackson's testimony.
Courtney testified that after he left the halfway house, he
lived with a woman who smoked "crack" cocaine on at least three
different occasions while they were in bed together. Courtney
acknowledged that Jackson had warned him against using, or
associating with anyone that used controlled substances, but that
he did not take the warning seriously. He did not dispute the
taking of the urine samples. He also admitted that prior to his
conviction he smoked a large amount of cocaine, and that he
associated with other "crack" smokers.
The sentencing district court found that Courtney had violated
the terms of his supervised release by using and possessing
cocaine. In making this finding the district court stated:
"I have heard evidence in a number of other cases that
the reason this testing company will return a negative
result for less than 300 nanograms per milliliter of
cocaine is because all of the testing that has been done
indicates that the maximum amount that can be found or
ingested into a human system passively is 100 nanograms
or less. So anything less than three times the maximum
that could be ingested passively they return as a
negative result to eliminate that possibility.
Therefore, the Court would have no choice, at least in my
view, of finding that Mr. Courtney has violated the terms
of his supervised release by using and possessing
cocaine, and that his supervised release will be
3
revoked."
The district court then revoked Courtney's supervised release and
required him to serve twenty-four months confinement to be followed
by three years supervised release. The district court based this
disposition on 18 U.S.C. § 3583(g) which mandates that the
supervised release be terminated and the defendant be required to
serve in prison at least one-third of the original supervised
release term where he is found to have been in possession of a
controlled substance.1
Discussion
Courtney raises two basic issues on appeal. First, he
complains that the district court erred by assuming once it
established use from the urinalysis report, then it must find
possession. Second, he contends that the district court improperly
ordered him to be both confined and subject to a following term of
supervised release because under 18 U.S.C. § 3583(e) & (g) the
district court is prohibited from ordering both a period of
imprisonment and a period of supervised release after revoking the
original term of supervised release.
1
The court stated: "The period of supervised release was six
years or 72 months. Title 18, Section 3583(g) mandates a
sentence of at least one-third of that in this case, so the Court
would have no discretion but to impose a sentence of 24 months,
which will be done in this case, to be followed by three years of
supervised release."
Section 3583(g) states that: "If the defendant is found by
the court to be in the possession of a controlled substance, the
court shall terminate the term of supervised release and require
the defendant to serve in prison not less than one-third of the
term of supervised release." 18 U.S.C. § 3583(g).
4
I. Use and possession
The district court felt compelled to apply section 3583(g)
because its determination based on the laboratory analysis that
Courtney used "crack" cocaine ineluctably led to the conclusion
that he possessed the substance. Courtney complains that he need
not be found to be in possession of an illegal substance based on
the mere evidence of a positive drug test. He argues that a
positive result might be evidence of use but one could not conclude
that this evidence of use required a finding of possession.
Therefore, the district court had the choice of only finding use
and applying section 3583(e)2 while avoiding the requirements of
section 3583(g). In determining Courtney's complaints, we review
the district court's interpretation of the statutes de novo.
United States v. Headrick, 963 F.2d 777, 779 (5th Cir. 1992).
Courtney relies on United States v. Blackston, 940 F.2d 877
2
Section 3583(e) provides in part that:
"The Court may . . .
(1) terminate a term of supervised release and
discharge the person released at any time after the
expiration of one year of supervised release . . .
(2) extend a term of supervised release if less than
the maximum authorized term was previously imposed, and
may modify, reduce, or enlarge the conditions of
supervised release . . .
(3) revoke a term of supervised release, and require
the person to serve in prison all or part of the term
of supervised release without credit for time
previously served on postrelease supervision . . .
(4) order the person to remain at his place of
residence during nonworking hours . . . ." 18 U.S.C. §
3583(e).
5
(3d Cir. 1991), for the proposition that there exists a distinction
between use and possession, and that although evidence of the
former can serve as a basis for finding the latter, the district
court is not required to conclude that the use constituted
possession.
The Blackston court found such a distinction based on the
overall structure of section 3583. This section requires as a
condition of supervised release "that the defendant not possess
illegal controlled substances." 18 U.S.C. § 3583(d). This section
also makes reference to 18 U.S.C. § 3563(b)(8) which authorizes
courts to order as a condition of supervised release that the
defendant "refrain from . . . any use of a narcotic drug or other
controlled substance . . . without a prescription by a licensed
medical practitioner." We disagree that these two supervised
release conditions create a meaningful distinction for purposes of
§ 3583(e) & (g) between use and possession of a controlled
substance.
As the Blackston court notes, possession, as used in criminal
offense statutes, has a settled meaning of "actual physical control
or of the power and the intent to exercise dominion or control."
Id. at 883. It is further settled that in this context possession
must be knowing. See FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS, CRIMINAL
CASES, INSTRUCTION NO. 1.31 (West 1990). The Blackston court does not
define use but merely states that use and possession are somehow
different.
Id. at 884. The court exhaustively reviews the
legislative history behind section 3583(g) and finds it
inconclusive on this issue.
Id. at 884-86. In addition, the court
6
acknowledges that other federal circuits have uniformly found use
to necessarily require possession. Id. at 887-88. See, United
States v. Dillard,
910 F.2d 461, 464 (7th Cir. 1990); United States
v. Graves,
914 F.2d 159, 161 (8th Cir. 1990); United States v.
Kindred,
918 F.2d 485, 487 n. 3 (5th Cir. 1990); United States v.
Ramos-Santiago,
925 F.2d 15, 16 (1st Cir. 1991).
The act of simple knowing possession of a controlled substance
is a federal criminal offense. 21 U.S.C. § 844.3 There is no
federal statutory provision which in terms criminalizes "use" or
"consumption" of a controlled substance. However, it is not a
defense to an otherwise established simple possession offense that
the defendant did not possess the substance because he merely used
or consumed it. United States v. Schocket, 753 F.2d 336, 340 (4th
Cir. 1985) (defendant had "possession over the cocaine since he had
the ability to use it, remove it, and therefore to exercise
dominion and control over the substance") (italics added). Had
Congress chosen to separately criminalize use and simple
possession, then the argument would be stronger that use is
separately defined from simple possession with separate legal
elements. But, under the present statutory scheme for criminal
offenses, use is subsumed within possession.
This conclusion would still exclude passive inhalation from
3
Section 844(a) provides in relevant part that:
"It shall be unlawful for any person knowingly or
intentionally to possess a controlled substance unless
such substance was obtained directly, or pursuant to a
valid prescription or order, from a practitioner, while
acting in the course of his professional practice . . .
." 21 U.S.C. § 844(a).
7
both possession and use. Possession requires the knowing exercise
of dominion or control. Similarly, in a sentencing or revocation
context it is clear that "use" requires knowing and voluntary
ingestion. But once the court finds a substance has been
voluntarily and knowingly ingested, then, at least in almost any
imaginable circumstance, it necessarily follows that the defendant
has possessed the substance. In short, there is no "use" exception
to possession: if one knowingly and voluntarily exercises dominion
and control over a substanceSQas by putting it in one's mouth and
swallowing it knowing what it isSQone possesses it, and this
conclusion is in no way altered by the fact that the same facts may
constitute one's "use" of the substance. By the same token, it
would not, for sentencing or supervised release purposes, be either
"use" or "possession" if one believed the ingested substance was
some other (non-controlled) substance or ingested it involuntarily
or unknowingly.
If evidence establishes that a positive result from a drug
test is at a level such that passive inhalation or similar
phenomenon may not reasonably account for it, then the district
court may find that the defendant knowingly and voluntarily had,
alone or jointly with others, actual physical control over the
drug, or the power and intent to exercise dominion or control over
it, and was hence in possession of it.4 The district court may
4
This holding is in accord with the Sentencing Commission
which in Application Note 5 to Guidelines § 7B1.4 states that it
"leaves to the court the determination of whether evidence of
drug usage established solely by laboratory analysis constitutes
'possession of a controlled substance' as set forth in 18 U.S.C.
§§ 3565(a) and 3583(g)." Id. (emphasis added). The Ninth
8
ordinarily rely solely on this evidence,5 but being the trier of
fact, its duty, of course, is to draw the appropriate inferences
and determine "factual contentions and whom to believe." Hall v.
United States, 404 F.2d 1368, 1369 (10th Cir. 1969).
Jackson's undisputed and unobjected to testimony established
that the two positive tests for cocaine were the result of two
separate incidents of cocaine inhalation and that the positive
results contained at least 300 nanograms per milliliter of cocaine
metabolite.6 But, there was no evidence as to the significance of
a 300 (or more) nanogram reading, as distinguished from any other
Circuit has also recognized that the Sentencing Commission
explicitly grants to the district court discretion to determine
whether positive laboratory analyses evidences possession.
United States v. Baclaan, 948 F.2d 628, 630 (9th Cir. 1991).
This also accords with cases decided under 18 U.S.C. § 3565,
the counterpart to section 3583(g), for probation revocation.
Section 3565 also requires revocation for possession of a
controlled substance. Under this section, courts have determined
that a positive result from laboratory analysis supports a
finding of possession. United States v. Gordon, 961 F.2d 426
(3rd Cir. 1992); United States v. Granderson,
969 F.2d 980 (11th
Cir. 1992).
5
Here there appears to exist evidence corroborating the
positive laboratory analyses. The district court could take into
account Courtney's prior use of the drug and his drug addiction,
his admission that he did not take seriously Jackson's warning to
avoid drug users, and his inconsistent explanations concerning
the alleged passive inhalation. An admission by the defendant is
not required.
6
Jackson's testimony established that cocaine will only cause
a positive result within seventy-two hours of ingestion. Tests
were taken on July 1, and July 9, which are periods that are more
than seventy-two hours apart. Therefore, the district court
could have determined from the evidence that Courtney was exposed
to cocaine from two separate incidents. See, United States v.
Kindred, 918 F.2d 485, 486-87 (5th Cir. 1990) (allowing as
evidence "the admission of urinalysis tests in a probation
revocation hearing through the testimony of a probation
officer").
9
positive reading, or whether it, or any other aspect of the test
results, were such as could not reasonably be accounted for by
passive inhalation.7
The district court, in finding that the level of cocaine
metabolite from the urinalysis tests could not be the result of
passive inhalation, merely relied, sua sponte, on his general
recollection of unspecified testimony, in unidentified prior cases
from unidentified witnesses, that only a maximum of 100 nanograms
per milliliter of cocaine can result from passive inhalation. In
this respect, the district court erred. Revocation hearings are
not formal trials and the usual rules of evidence need not be
applied. See Advisory Committee Notes to Fed. R. Crim. P.
32.1(a)(2); Kindred, 918 F.2d at 486-87. Nevertheless, the
district court here simply went an informality too far.
Unspecified testimony by unidentified witnesses in unidentified
prior cases may properly form no material part of the
"preponderance of the evidence" on which the district court must
base its section 3583(e) decision, and critical reliance thereon
7
In an analogous Texas state court case, the trial court
revoked the defendant's probation for possession of marihuana
based solely on a positive urine sample. Brown v. State, 760
S.W.2d 748 (Tex. Ct. App.SQTyler 1988). The defendant argued
that the positive result was caused by passive smoke inhalation.
The appellate court upheld the revocation relying on the expert
testimony indicating that the positive test result required a
level of at least 100 nanograms per milliliter and "that passive
inhalation of marijuana smoke would not produce a result of 100
nanograms per milliliter."
Id. at 749. The court concluded that
"the State established by a preponderance of the evidence that
Brown violated the laws of this State by possessing a usable
quantity of marihuana since Brown's urine tested positive for
marihuana at a level greater than is found for passive
inhalation."
Id. at 750.
10
denies the defendant the character of hearing contemplated by Rule
32.1(a)(2) and prevents this courtSQwhich has nothing before it
(either as part of anything includable in the record below or
otherwise) tending to indicate that test results positive for
cocaine with levels of not less than 100 (or any other number of)
nanograms may not be accounted for by passive inhalationSQfrom
meaningful exercise of its duty of review.
On remand, the district court should have a proper record
basis for concluding that a positive result on the tests may not
reasonably be accounted for by passive inhalation. This could be
adequately established through expert testimony, or by the
probation officer's testimony, see Kindred, 918 F.2d at 487, or
perhaps through judicial notice based on an adequately developed
foundation and prior notice and opportunity to rebut. See Rule
32.1(a)(2) & Fed. Rule Evid. 201.
If such a record is developed, then the district court needs
to determine if Courtney voluntarily and knowingly ingested the
cocaine and thus possessed it. If so, the district court must
apply section 3583(g). Kindred, 918 F.2d at 488 (holding once
possession is found, "the district court had no alternative but to
revoke his supervised release under § 3583(g)").
II. Sentencing requirements
The district court ordered Courtney imprisoned for twenty-four
months followed by three years of supervised release. Courtney
complains that this is improper because under 18 U.S.C. § 3583(e)
the district court is prohibited from ordering both a period of
imprisonment and a period of supervised release on revocation of an
11
original term of supervised release. In its brief, the government
states that "it appears that the imposition of the additional term
of supervised release was error, and that remand for resentencing
would be appropriate."
We accept the government's concession.
As held in United States v. Holmes, 954 F.2d 270 (5th Cir.
1992), the language of 18 U.S.C. § 3583(e) does not allow a
district court to revoke a term of supervised release and then
impose both a term of imprisonment and an extended term of
supervised release following that prison term.
Id. at 272. Once
a term of supervised release is revoked, it no longer exists and
cannot be used as the basis for a new term of supervised release
following imprisonment.
Id. Therefore, the Holmes panel reversed
that part of the judgment, vacated the sentence, and remanded to
allow the district court to sentence "with all legal choices before
it."
Id. at 273.
Conclusion
Accordingly, the district court's August 16, 1991 order is
vacated and the matter is remanded for proceedings not inconsistent
herewith.
VACATED and REMANDED
12
