On Appeal From The United States District Court For The District of Delaware; D.C. Crim. No. 89-00066.
Becker, Nygaard, Circuit Judges, and Clifford S. Green, District Judge.*fn* Nygaard, Circuit Judge, concurring.
This is an appeal by defendant Theophilus Blackston from an order of the district court for the District of Delaware revoking a term of supervised release and imposing a sentence of three years imprisonment. The revocation was predicated on evidence that Blackston, shortly after his release from prison, furnished three urine specimens to his probation officer that tested positive for cocaine, and subsequently admitted to using cocaine on three occasions since his release. Concluding that Blackston had violated a condition of his supervised release, the district court next determined the appropriate sentence under 18 U.S.C. § 3583(g) and the United States Sentencing Commission's Chapter 7 policy statements for violations of supervised release (the "Chapter 7 policy statements"). The court "rejected" the four- to ten-month sentencing range prescribed by the Chapter 7 policy statements on the ground that Blackston had "possessed" cocaine, and that the two-year mandatory minimum set forth in section 3583(g) therefore applied. Finding Blackston's violation particularly egregious, the court imposed the maximum sentence permitted under section 3583(e)(3), three years.
The principal issue raised on appeal is whether, as Blackston asserts, the district court erred in holding that the evidence of his "use" of cocaine was sufficient to establish circumstantially "possession" for purposes of section 3583(g). For analytic clarity, we will split this issue into its legal and factual components. The legal question -- whether section 3583(g) forecloses resort to evidence of drug use to prove circumstantially prior possession -- is exceedingly close. We nonetheless conclude that in light of (1) the lack of a prohibition against considering such evidence in section 3583(g) or its legislative history; (2) the clear relevance of such evidence to a finding of possession; (3) the precedential weight of the prevailing federal and state jurisprudence; and (4) the language of Application Note 5 to Guidelines § 7B1.4, the district court may base a finding of "possession" on evidence of "use." We emphasize, however, that this decision should not be read as requiring revocation of supervised release every time a defendant tests positive for drug use. Instead, the supervised release system, as per Congress's intent, remains flexible. The probation officer still enjoys discretion in deciding whether to commence revocation proceedings, and the district court retains latitude in making the factual finding under section 3583(g) that the defendant "possessed a controlled substance."
By contrast, the factual question at bar -- whether three positive urinalyses plus admitted drug use is sufficient to establish "possession" by a preponderance of the evidence -- is relatively straightforward. After reviewing the record, we are satisfied that the district court did not commit clear error in finding that it is "more likely than not" that the defendant "possessed" cocaine prior to ingesting it. We further note that, because the defendant admits to using drugs voluntarily, there is no allegation that the cocaine was administered against his will or by trick. For the foregoing reasons, and because the court's sentence was not "plainly unreasonable," 18 U.S.C. § 3742(e)(4), the order of the district court revoking supervised release and imposing a three-year prison sentence will be affirmed.
On September 29, 1989, Blackston pleaded guilty to four counts of a ten-count indictment charging him with distribution of cocaine within 1000 feet of a public elementary school, in violation of 21 U.S.C. § 845a. He thereafter was sentenced to a sixteen-month term of imprisonment to be followed by a six-year term of supervised release. The district court imposed the fourteen standard conditions on the term of supervised release, including the requirement ("Condition #8") that Blackston "shall not purchase, possess, use, distribute, or administer any narcotic or other controlled substance."
Blackston was released from prison on September 7, 1990, and commenced his supervised release term. His performance, however, proved less than exemplary. According to the averments of his probation officer in the petition to revoke supervised release: (1) three consecutive urine specimens, submitted by Blackston on September 20th, September 27th, and October 4th respectively, tested positive for cocaine metabolites; (2) Blackston admitted on October 4th to using cocaine on three occasions since his release from prison; and (3) Blackston failed to submit a urine specimen for testing during the week of October 8th. Based on these allegations, the probation officer asked the district court to issue a warrant for Blackston to determine whether he had violated Condition #8 of his supervised release. The district court issued the requested warrant.
On November 1, 1990, the district court held a hearing on this charged violation. Because Blackston admitted to the probation officer's allegations (i.e., his submission of three positive urine samples and his confession to use of cocaine on three occasions), the only disputed issues at the hearing were whether his supervised release should be revoked, and, in the event that it was, what the appropriate sentence should be. Blackston contended that, if the court revoked his supervised release, the appropriate sentence should be four to ten months, as prescribed by section 7B1.4(a) of the Chapter 7 policy statements, which in fact became effective on the sentencing date.*fn1 The government, however, argued that by statute, 18 U.S.C. § 3583(g), the district court was required to impose at least a two-year term of imprisonment,*fn2 and that this mandatory minimum prevailed over the sentence recommended by the Chapter 7 policy statements.*fn3 Noting that Blackston had proven himself unamenable to treatment,*fn4 the government recommended that the court impose the three-year statutory maximum for violation of supervised release, 18 U.S.C. § 3583(e)(3).*fn5
At the conclusion of the revocation hearing, the district court found that Blackston had violated Condition #8 of his supervised release. The court "rejected" the four- to ten-month sentencing range prescribed by the Chapter 7 policy statements, concluding that the mandatory minimum of section 3583(g) applied because Blackston had "possessed" cocaine:
the presence of cocaine in [Blackston's] urine as evidenced by the urinalysis constitutes possession as effectively as proven otherwise. Certainly it is circumstantial evidence and certainly for purposes of this hearing I find it has been established by a preponderance of the evidence.
(Emphasis added). This finding, the district court stated, required it to sentence Blackston to a minimum term of two years imprisonment -- irrespective of the sentencing range recommended by the Chapter 7 policy statements. The court noted additionally that it had the power to sentence Blackston to a maximum term of three years imprisonment under section 3583(e)(3).
Based on the foregoing, the district court "revoked in its entirety" Blackston's original sentence and substituted in its stead a term of three years imprisonment. In opting for a sentence at the very top of the permissible statutory range, the district court commented:
I put you on supervised release thinking that you would do better, you didn't. You ignored that trust. For that violation of trust you are going to go back to jail. And secondly, I want the message to go out to your friends in Middletown, your family and friends in Middletown that this kind of activity is going to be dealt with swiftly and surely and directly, and for those people who become involved in drugs, they risk going to jail for a long period of time.
Even if you get supervised release there's a long rope that will reach out for a long period of time so you can be dragged in here to account for your activities.
The district court also stated that Blackston remained obligated to pay the $250 special assessment and the $160 restitution that had been imposed as part of his original sentence.*fn6 This appeal followed, over which we have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
Blackston raises essentially three challenges on appeal. He begins by contending that the district court erred in revoking "in its entirety" his prior sentence, as opposed to revoking his term of supervised release. Next he asserts that the district court erred in holding that evidence of his "use" of cocaine was sufficient circumstantial evidence to establish "possession of a controlled substance" for purposes of section 3583(g). Lastly, Blackston argues that the district court improperly ignored the Chapter 7 policy statements in sentencing him to three years imprisonment, the statutory maximum under section 3583(e)(3), instead of the two-year mandatory minimum under section 3583(g). We will address each of these contentions in turn.
As noted above, the district court stated that it was revoking Blackston's original sentence in its entirety and imposing a new sentence. If that is what the district court in fact did, it committed legal error, as the government essentially concedes. Section 3583(e)(3) of Title 18 of the United States Code states that a court may
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, if it finds by a preponderance of the evidence that the person violated a condition of supervised release.
(Emphasis added). In light of this language, the district court, upon determining that Blackston had violated Condition #8 of his supervised release, should have said that it was revoking Blackston's supervised release, and that it was sentencing him to three years imprisonment for his violation of a condition of his supervised release.
The government contends that the court's reference to revocation of the original sentence was merely a verbal slip, i.e., that the court properly intended to revoke Blackston's supervised release, not his original sentence -- and thus that we should not overturn the sentence based on a single misspoken phrase. The record substantiates this argument. The entirety of the court's comments at the revocation hearing are plainly more consistent with its sentencing Blackston for a violation of his supervised release than with its resentencing Blackston for his original criminal conduct. We note in particular that the court, in justifying its decision to sentence Blackston to the statutory maximum of three years, stated that he had breached the court's trust by violating a condition of his supervised release. The government's position is strengthened by Blackston's inability to identify any prejudice resulting from the district court's putative revocation of his original sentence. No such prejudice exists. As we will explain in this opinion, the district court's sentence of three years imprisonment was entirely consistent with both 18 U.S.C. § 3583 and the Chapter 7 policy statements.
The supervised release system is new, and it is understandable that experienced judges unconsciously may revert to the terminology of the pre-Sentencing Reform Act regime from time-to-time. Because we are satisfied that the district court intended to sentence Blackston for his violation of supervised release, and because Blackston has not alleged that he has suffered any harm as a result of the district court's alleged verbal error, we will not vacate the court's commitment order and send the case back for a pointless resentencing exercise. Rather, we will construe the district court's sentence as revoking the supervised release term, not the original sentence.*fn7
Section 3583(g) of Title 18 of the United States Code provides:
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.
(Emphasis added). Applying the above language to the instant case, the district court made a threshold legal determination that "the presence of cocaine in [Blackston's] urine as evidenced by . . . urinalysis constituted . . . circumstantial evidence" of possession of a controlled substance. The court then determined as a factual matter that Blackston's three positive urine samples indicating the presence of cocaine metabolites and his admission of drug use established "possession" of cocaine by a preponderance of the evidence. Based on the foregoing, the court held that the mandatory minimum set forth in section 3583(g) set a floor for its sentencing decision.
On appeal, Blackston challenges the district court's legal determination that evidence of drug use can be considered as circumstantial evidence of possession. He claims in essence that a finding of "possession" for purposes of section 3583(g) never can be predicated upon laboratory tests showing the presence of cocaine metabolites in the bloodstream, even if these test results are corroborated by an open admission of drug "use." He asserts instead that a finding of "possession" requires direct evidence that the drugs were in the actual physical possession of the defendant.
The government, in arguing that section 3583(g) affords the district court discretion to base a finding of "possession" on positive urinalyses and admitted drug use, relies heavily on Application Note 5 to Guidelines § 7B1.4. This Application Note provides in pertinent part:
The Commission 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) [revocation of probation] and 3583(g).
The government contends that this language demonstrates that the Sentencing Commission considered the use/possession question and decided to accord the district courts discretion to determine on a case-by-case basis whether the evidence of drug use is sufficient to establish circumstantially pre-use possession by a preponderance of the evidence.*fn8
Because Blackston's challenge to the district court's consideration of evidence of drug use as circumstantial evidence of possession is essentially legal in nature, we will exercise de novo review. See United States v. Ortiz, 878 F.2d 125, 126-27 (3d Cir. 1989).
Blackston clothes his challenge to the district court's decision in the well-established rule of statutory construction that courts are bound by the plain meaning of clear and unambiguous statutory language. See Smith v. Fidelity Consumer Discount Co., 898 F.2d 907, 909-10 (3d Cir. 1990) (discussing the "plain meaning" rule). Invoking the historic dichotomy between "possession" and "use" in the criminal law, see cases discussed infra at 28-35, he contends that the term "possession" in section 3583(g) is facially unambiguous, and that, as ordinarily defined and as understood by generations of lawyers, it includes only actual physical possession or the exercise of dominion or control, together with knowledge that the matter possessed is a controlled substance. Blackston asserts that "use," to the contrary, includes only the consumption or ingestion of the substance. To the extent that any ambiguity exists regarding the meaning of "possession," Blackston adds, the "rule of lenity" applies and requires that the ambiguity be construed against the government, see Busic v. United States, 446 U.S. 398, 406, 64 L. Ed. 2d 381, 100 S. Ct. 1747 (1980) ("'"ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity"'" (citations omitted)).
At first blush, Blackston's statutory construction argument appears compelling. Closer inspection, however, reveals it to be misdirected. Blackston is undoubtedly correct that the terms "possession" and "use" are by no means synonymous or interchangeable. But that is not the position urged by the government on appeal, nor is it what the district court held. The government contends, and the district court concluded, that evidence of drug "use" is circumstantial evidence that the user "possessed" the drug, perhaps only momentarily, prior to ingesting it. Once the issue is recast in these terms, Blackston faces an uphill battle, for evidence of drug use is undoubtedly probative of possession; that is, it has a tendency to make possession more probable than it would be without the evidence, see Fed. R. Evid. 401 (definition of "relevant evidence"). In our ...