United States v. Ira Littlejohn, Jr., 508 F. App'x 123

Littlejohn pleaded guilty in 1997 to possession with intent to distribute over 50 grams of cocaine base; sentenced to 188 months and released in 2008 under retroactive Guideline changes.
In February 2011, Littlejohn tested positive for marijuana, opiates, codeine, and morphine, violating supervised-release conditions.
In April 2011, he was arrested on various drug offenses; probation filed a petition on December 22, 2011 based on the positive test and the arrest.
At a December 22, 2011 hearing, the state charges were withdrawn and the court amended the petition to allege disorderly conduct; Littlejohn admitted both violations (state disorderly conduct and drug use).
The court found the positive drug test also violated possession-related conditions, concluded a Grade B violation under §7B1.1(a)(2), and sentenced Littlejohn to 21 months; the Government had initially treated the violations as Grade C, but corrected the assessment.
On appeal, Littlejohn challenges due process (notice) and the reasonableness of the sentence; the Third Circuit affirms the judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether due process was violated by lack of notice that the drug test could show possession.	Littlejohn (Littlejohn) argues lack of notice that test could show possession.	Littlejohn contends the petition charged only unlawful use, not possession.	No plain error; petition gave notice that possession could be considered; sentence affirmed.
Whether the 21-month sentence for a Grade B violation was procedurally and substantively reasonable.	Littlejohn argues improper Grade B calculation and unreasonableness.	Gudged that possession-based violation could be Grade B; §851 not required to trigger Grade B.	Procedurally and substantively reasonable; sentence affirmed.

United States v. Blackston, 940 F.2d 877 (3d Cir. 1991) (possession can be inferred from drug use in probation violation context)
United States v. Bungar, 478 F.3d 540 (3d Cir. 2007) (possession can be inferred from drug use for Grade B determination)
United States v. Gordon, 961 F.2d 426 (3d Cir. 1992) (notice that possession could be considered based on tests)
United States v. Cates, 613 F.3d 856 (8th Cir. 2010) (drug possession as Grade B with prior convictions)
United States v. Olano, 507 U.S. 725 (1993) (plain-error standard of review)
United States v. Plotts, 359 F.3d 247 (3d Cir. 2004) (plain-error review for unpreserved issues)
United States v. Vazquez, 271 F.3d 93 (3d Cir. 2001) (en banc standard for plain error)
Gagnon v. Scarpelli, 411 U.S. 778 (1973) (due-process requirements for revocation proceedings)
Morrissey v. Brewer, 408 U.S. 471 (1972) (due-process rights in parole/probation revocation)