United States v. Ronald Seiber, 516 F. App'x 208

Sieber pled guilty to bank robbery and received 77 months plus 3 years of supervised release with conditions prohibiting narcotics use or possession.
During supervision, he tested positive for marijuana twice and faced state charges for other offenses.
District Court treated the positive tests as circumstantial evidence of simple possession, elevated to a Grade B violation because of a prior drug conviction.
Because of the prior drug conviction and the conduct, the court revoked supervised release and imposed 24 months less one day in prison followed by post-release supervision.
The court treated Sieber’s conduct as a controlled-substance offense under § 7B1.1(a), requiring revocation and a heightened punishment.
On appeal, Sieber challenged notice, the § 851 information, leniency arguments, the double-counting of prior convictions, and the procedural reasonableness of the sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether notice supported a possession violation as a Grade B offense	Sieber asserts no notice of felony possession	Sieber’s notices disclosed the possession theory through the petitions	No reversible error; notices adequate and evidence sufficient
Whether § 851 information was required for revocation based on prior conviction	Sieber argues § 851 applies to prosecutions, not revocation	Section 851 not required in revocation; grade based on conduct	§ 851 not applicable to revocation; no error
Whether leniency for small-time drug offenders invalidates use of old conviction to elevate offense	Sieber claims unwarranted leniency contradicts elevating to Grade B	Prior conviction properly elevates offense under § 844(a) and § 7B1.1	Properly used; prior conviction may raise grade irrespective of small amount of drugs
Whether two positive drug tests can be Grade B violations and double-counting is permissible	Sieber argues double-counting prior conviction for history and offense	Courts may double-count; prior conviction relevant to wrongfulness and recidivism	Permitted; prior drug conviction counted for both offense level and criminal history
Whether the sentence was procedurally reasonable	Sieber contends miscalculation of Guidelines range and process	Court properly calculated range and considered 3553(a) factors	Sentence procedurally reasonable

Gagnon v. Scarpelli, 411 U.S. 778 (U.S. Supreme Court 1973) (probation hearing rights include notice and opportunity to be heard)
Morrissey v. Brewer, 408 U.S. 471 (U.S. Supreme Court 1972) (due process for parole revocation proceedings)
Custis v. United States, 511 U.S. 485 (U.S. Supreme Court 1994) (no right to collaterally attack prior convictions in absence of statute)
Poellnitz, 372 F.3d 562 (3d Cir. 2004) (possession evidence may be inferred from drug tests without conviction)
Blackston, 940 F.2d 877 (3d Cir. 1991) (positive drug tests can be circumstantial evidence of possession)
Crace, 207 F.3d 833 (6th Cir. 2000) (prior convictions may be used to establish offense level and recidivism)
Trotter, 270 F.3d 1150 (7th Cir. 2001) (prior drug conviction can raise offense classification)
Wyckoff, 918 F.2d 925 (11th Cir. 1990) (support for double-counting prior offenses in guidelines)
Alessandroni, 982 F.2d 419 (10th Cir. 1992) (treatment of prior convictions in sentencing decisions)
Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (U.S. 2010) (addressed § 851 context in immigration/removal, not revocation)
Sistrunk, 612 F.3d 988 (8th Cir. 2010) (notice in revocation proceedings and related standards)