*1 еnsuring a limit- directed tory provision nu- recovery for victims level of
ed distributing incidents, equitably
clear limits be ex- those
compensation should III is that Article holds
ceeded. Verlinden federal merely because
not contravened plain- from the apparent are not
questions where upheld a statute complaint, and
tiffs’ constituted
immunity defenses the rationale I ingredient. believe
federal jurisdiction original federal permitting as it was in strong here
is at least as
Verlinden. of America
UNITED STATES BLACKSTON, Appellant.
Theophilus 90-3750.
No. Appeals, Court of
United States
Third Circuit.
Argued March 1991. July
Decided *2 revoking
court for the District of Delaware imposing term of release and years imprisonment. three a sentence of predicated revocation was on evidence The Blackston, shortly release after his that prison, speci- furnished three urine from officer that tested mens to cocaine, subsequently for ad- using cocaine on three occasions mitted to Concluding Black- his release. that since super- a condition of his ston violated release, the district court next deter- vised appropriate sentence under 18 mined 3583(g)and the United States Sen- U.S.C. § tencing Chapter policy Commission’s for violations of statements statements”). (the “Chapter policy lease “rejected” The court the four-to ten-month Chap- sentencing range prescribed ground policy ter 7 statements on the cocaine, “possessed” Blackston had mandatory two-year that the minimum set 3583(g) applied. forth therefore Finding particularly Blackston’s violation egregious, imposed the maximum the court 3583(e)(3), permitted sentence under section years. principal appeal issue raised on whether, asserts, as Blackston holding court erred evidence his “use” of cocaine was sufficient to es- circumstantially “possession” tablish for analytic purposes оf section For split legal issue its clarity, we will into components. legal ques- and factual 3583(g)forecloses re- tion—whether section (argued), Wilming- Raymond M. Radulski prove use to cir- sort evidence ton, Del., appellant. cumstantially prior possession exceed- —is Jr., Carpenter, Atty., U.S. William C. ingly close. We nonetheless conclude that McDonough (argued), Asst. Thomas V. (1) prohibition light the lack of a Del., Atty., Wilmington, appellee. U.S. against considering such evidence in sec- (2) legislative history; or its NYGAARD, BECKER, Circuit Before clear relevance of such to a GREEN, Judge.* Judges, and District (3) finding possession; precedential weight prevailing federal and state OF THE COURT OPINION language Ap- jurisprudence; and BECKER, Judge. Circuit 7B1.4, plication Note 5 Guidelines § “pos- Theophi- may base a appeal This is an defendant district empha- from an order of the district session” on evidence of “use.” We lus Blackston Green, sylvania, sitting by designation. Clifford S. United States *The Honorable Judge District for the Eastern District of Penn- (“Condition 8”) ment # not should size, however, this decision purchase, possess, use, super- “shall distrib- requiring revocation read as be ute, any or administer tests narcotic or defendant other every time a Instead, super- controlled substance.” drug use. positive for *3 Congress’s per system, as release Blackston was released from of- probation intent, flexible. remains 7, 1990, September and commenced his su- deciding discretion enjoys still ficer pervised perfоrmance, release term. His proceed- revocation whether to commence however, proved exemplary. than less Ac- latitude retains court ings, and the district cording probation to the of his averments under section finding making the factual petition supervised officer in the to revoke “possessed a 3583(g) that the defendant (1) speci- release: three consecutive urine controlled substance.” mens, by Septem- submitted Blackston on 20th, 27th, September question ber and October 4th contrast, factual By respectively, positive for tested cocaine me- urinalyses plus positive bar—whether tabolites; (2) Blackston admitted on Octo- to establish drug use is sufficient admitted using ber 4th to cocaine on three occasions preponderance of the “possession” by a prison; since his release from relatively straightforward. evidence—is specimen Blackston failed to submit a urine record, reviewing the we are satis- After testing during the week of October 8th. court did not commit fied that the district allegations, Based on these likely that it is “more clear error officer asked the district court to issue a “possessed” that the defendant than not” for Blackston to determine wheth- warrant further prior ingesting to it. We cocaine # er he had violated Condition 8 of his that, the defendant admits note because supervised court is- release. The district allega- using drugs voluntarily, there is no rеquested sued the warrant. that the cocaine was administered tion trick. For the fore- against by his will or 1, 1990, On November the district court reasons, going and because the court’s sen- hearing charged on this violation. held unreasonable,” “plainly tence was proba- Because Blackston admitted to the 3742(e)(4), order of the district (i.e., § allegations his submis- tion officer’s im- revoking supervised release and court samples of three urine and his sion will be posing three-year prison sentence three occa- confession to use of cocaine on affirmed. sions), only disputed issues at the hear- supervised release ing were whether his
I. and, revoked, that it should be the event was, should 29, 1989, plead- appropriate sentence Blackston what September On that, if the court Blackston contended counts of a ten-count be. guilty ed four appro- supervised charging him distribution revoked indictment ten should be four public priate of a sentence cocaine within 1000 feet 7B1.4(a) months, by section school, prescribed as elementary in violation of U.S.C. statements, Chapter policy which sentenced to a of the 845a. He thereafter was § sentencing on the in fact became effective imprisonment term of to be sixteen-month however, argued government, supervised date.1 The six-year term of followed statute, 3583(g), the 18 U.S.C. imposed the that release. The district court § impose at required to сourt was conditions on the term of district fourteen standard imprisonment,2 term of release, including require- two-year least a supervised 7B1.4(a) 3583(g) provides if the defendant pre- a table 2. Section 1. Guidelines contains apply scribing ranges imprisonment "possession that of a controlled found to be in the is substance," upon release. This ta- required revocation of to ter- the district court is to ten a sentence of four ble recommends the de- and sentence minate release (such imprisonment a defendant months Blackston) period of at least of incarceration fendant to a who, originally he at the time supervised release. of the term of one-third Here, sentenced, History Category of had a Criminal supervised release term of Blackston’s C violation of II and who committed a Grade supervised release. pre- and substituted in its stead a mandatory minimum nal sentence imprisonment. opt- years term of three recommended the sentence over vailed Noting very top ing for a sentence at the of the policy statements.3 Chapter 7 permissible statutory range, himself unamen- proven treatment,4 government recom- court commented: able to impose the three- mended thinking put you I for violation of statutory maximum year better, you you would do didn’t. 3583(e)(3).5 release, 18 U.S.C. ignored You that trust. For that viola- you going go of trust back to revocation hear- conclusion At the secondly, message I jail. And want the that Blackston found ing, district court Middletown, go your out to friends in *4 super- #8 of his violated Condition had family friends in your and Middletown “rejected” the The court release. activity going kind of is to be that this sentencing range pre- to ten-month four- swiftly surely and and direct- dealt with statements, policy Chapter 7 by scribed people in- ly, and for those who become mandatory minimum of concluding that the drugs, they going jail in risk to volved Blackston 3583(g) applied because section long period a of time. “possessed” cocaine: had you get supervised Even in presence of cocaine [Blackston’s] long rope a reach out for urinalysis con- there’s will by the urine as evidenced long period you a of time so can be effectively as as stitutes your dragged in here to account for ac- Certainly it is circum- proven otherwise. certainly pur- tivities. and stantial evidence hearing I has of this find it been poses The district court also stated that Black- of the by preponderance established obligated pay ston remained to the $250 evidence. special assessment and the restitution $160 added). imposed part origi- as of his finding, the dis- that had been (Emphasis followed, appeal stated, required nal sentence.6 This over it sentence trict court pursuant jurisdiction which we have to 28 years a minimum term of two Blackston to 3742(a). and 18 of the sentenc- U.S.C. imprisonment irrespective § § — by Chapter ing range recommended essentially Blackston raises three chal- policy The court noted addi- statements. lenges appeal. begins by contending He tionally power it had the to sentence revoking court erred in “in that the district maximum term of three Blackston to a sentence, entirety” prior opposed its his years imprisonment under section revoking his term of release. 3583(e)(3). he asserts that the district court Next holding in that evidence of his “use” foregoing, the district court erred Based on the origi- evi- entirety” Blackston’s of cocaine was sufficient circumstantial “revoked its therefore, 3583(e)(3) 3583(g) ap- provides pertinent part: years; if section 5. Section was six plied, mandatory years. person minimum was two [of "a whose release] paragraph may revoked under this not be 1.4(b)(2) provides 3. Guidelines 7B§ quired years prison if to serve more than 3 imprisonment the minimum term of “[w]here required person the offense for which the was convicted greater statute ... than the maxi- felony.” was a Class B Violation of 21 U.S.C. range applicable mum of the forth in sec- [set felony. is a Class B See 18 U.S.C. § 845a ], 1.4(a) imprison- 7B the minimum term of tion ment (violation 3559(a)(2) 21 U.S.C. 845a is a required by statute shall be substituted for felony). Class B added). applicable range." (Emphasis discharged July Blackston was 4. original According imposed to the sentence community program from a confinement obligated Blackston was December test returned to because urine special pay $160 assessment and a resti- $250 presence revealed the of cocaine metabolites in (2) years super- the first two tution "within body. Similarly, proba- asked his his when vised release." 4, 1990, about co- tion officer on October problem, caine Blackston insisted that he did Anonymous. not need Narcotics
§81 “possession original dence establish a con- sentence—and thus that we should purposes trolled substance” for of section not overturn the sentence single based on a 3583(g). Lastly, argues that the misspoken phrase. The record substanti- ignored improperly Chap- district court argument. ates this The entirety of the policy in sentencing ter statements him to court’s comments at the hearing revocation years imprisonment, statutory plainly more consistent with its sen- 3583(e)(3), maximum under section instead tencing Blackston for a violation of his two-year mandatory minimum under supervised release than with its resentenc- We will address each of original Blackston for his criminal con- these contentions turn. duct. particular We note in court, in justifying its decision to sentence Black- II. statutory ston maximum of three above,
As noted the district court years, stated that he had breached the stated revoking it was Blackston’s court’s trust violating a condition of his original sentence in entirety impos its government’s release. The po- ing a new sentence. If .that is what the strengthened sition is by Blackston’s inabil- did, district court in fact it legal committed ity to identify any prejudice resulting from *5 error, government essentially as the con putative the district court’s revocation of 3583(e)(3) cedes. Section of Title 18 of the original sentence. prejudice No such United States may Code states that a court exists. explain As we will opinion, in this release, revoke a term supervised, and of the district court’s sentence of years require person prison to serve all imprisonment entirely was consistent with part supervised of the term of release both 18 U.S.C. Chapter 3583 and the without previously credit for time served policy statements. postrelease on supervision, if it finds preponderance a of the evidence that the supervised The system release
person violated a supervised condition of new, and it is experi understandable that release. judges enced unconsciously may revert to added). (Emphasis light of terminology this lan- of the pre-Sentencing Re guage, court, the district upon determining regime form Act from time-to-time. Be that Blackston had violated Condition #8 cause we are satisfied that supervised release, of his should have said court intended to sentence Blackston for it revoking was super- Blackston’s release, his violation of and be and that it sentencing alleged cause Blackston has not that he has him years imprisonment to three for his any suffered harm as a result of the dis violation of a condition of his alleged error, trict court’s verbal we will release. not vacate the court’s commitment order government
The and send pointless contends the case back for a court’s resentencing Rather, reference to origi- revocation of the exercise. we will con nal merely i.e., sentence was slip, a verbal strue the district court’s sentence as revok properly that the court term, intended to revoke not the supervised release, Blackston’s original not his sentence.7 argues 7. Blackston ardy also that the district rejected court clause. Because we have Black- by declining give erred him credit for the interpretation ston’s of the district court’s order imprisonment sixteen months he had served resentencing original charge, him on the pursuant asserts, original to his sentence. He reject jeopardy argument his double as well. initially, that the district court contravened the contends, that, generally, more jeopardy by failing double clause to do so. This aside, jeopardy double clause the district court predicated claim is on Blackston’s assertion that obliged still was to accord him credit for time improperly the district court resentenced him already argument served. This has been round- original charge. on the He reasons unless ly rejected by several federal courts. See United he receives credit for the sixteеn months he (11th already Scroggins, charge, States v. 910 F.2d has served Cir. on that he will incur 1990); Celestine, multiple punishments for the same United States v. crime in 905 F.2d (5th Cir.1990); jeop- violation of the fifth amendment’s double United States v. Medrano-Gonza- in arguing that government, The
III. 3583(g) affords district court discretion A. posi- “possession” a of base Title 3583(g) of 18 of the Section use, urinalyses drug tive admitted provides: Code States United Application heavily lies Note 5 Guide- by the is found court defendant If the Application pro- lines Note 7B1.4. of a controlled sub- in the be part: pertinent vides in stance, terminate the shall the court leaves to the court the The Commission require supervised release and evidence of determination whether not less to serve the defendant usage solely by established labo- the term of than one-third analysis “possession ratory constitutes release. substance” as set forth in a controlled added). Applying the lan- (Emphasis above 3565(a) proba- 18 U.S.C. §§ [revocation case, the district court guage to instant tion] legal determination that made a threshold government contends that lan- presence of cocaine “the [Blackston’s] guage Sentencing demonstrates that urinalysis by ... consti- urine as evidenced use/possession Commission considered the pos- circumstantial evidence” of ... tute^] question and decided to accord the district of a substance. session controlled a case-by- courts discrеtion determine on then determined as factual matter case basis whether the evidence positive urine that Blackston's three sam- use sufficient to circumstantial- establish indicating presence of cocaine me- ples ly pre-use possession by preponderance and his admission tabolites of the evidence.8 “possession” cocaine established *6 of the evidence. Based on preponderance challenge the Because Blackston's dis- held that foregoing, the the court the man- trict of evidence of court’s consideration minimum forth in datory set section drug of pos- use as circumstantial evidence 3583(g) sentencing set a floor for its deci- nature, essentially legal is in session sion. will exercise de novo review. See United challenges Ortiz, 125, appeal, (3d On Blackston the dis- 878 States v. F.2d 126-27 legal Cir.1989). trict court’s determination that evi- dence of can be considered as possession. evidence of He
circumstantial B. finding “posses- claims in essence that a of challenge clothes Blackston the purposes 3583(g) of section never sion” n can be court’s decision in the district well-estab- predicated upon laboratory tests statutory lished rule of construction that showing presence of cocaine the metabol- by meaning plain are bound the of bloodstream, courts even ites in the these test unambiguous statutory language. clear by oрen an and are results corroborated admis- Fidelity See v. Discount drug “use.” He instead Smith Consumer sion of asserts Co., 907, Cir.1990) (3d (dis- F.2d 909-10 “possession” requires di- 898 that a rule). drugs “plain meaning” cussing in the the Invok- rect evidence were physical possession dichotomy “pos- the historic between actual the defen- law, dant. session” and “use” the criminal see 931, lez, (D.Kan.1990); F.Supp. part original already 751 934 United had served as of his sen- Hoffman, F.Supp. v. States 315-16 tence. (D.Alaska 1990). authority. We will follow this McDowell, States v. 888 F.2d See United separate Violation of release is a Cir.1989) (“a hence, (3d sentencing ... need required is the district court offense: only preponder- violating base its determination on the to reduce the defendant’s sentence for present- by the evidence it is ance of ed"); with which a condition of release the amount 3583(e)(3) (sentencing original the see also 18 of time defendant served the by preponderance "find [ ] offense. therefore court must criminal We hold that person declining did a condition of district court not err to accord evidence that violated release”). the sixteen he to Blackston credit for months 888-91, cases at discussed he con- release is found to “pos- be in infra tends “possession” that the term in section session of a controlled substance,” the facially unambiguous, and court must terminate the defendant’s su- as ordinarily defined and as by pervised understood require the defendant generations lawyers, only it includes ac- serve at least one-third of the physical possession tual or the exercise term of his or her supervised release. Be- control, together dominion or with knowl- cause section 3583(g) does not define the edge possessed that the matter is a “possession,” con- we look to the common trolled substance. Blackston asserts that guidance. law for As points Blackston out, “use,” to contrary, only includes “possession,” word as it is used in consumption ingestion or of the substance. statutes, criminal offense has a settled To the extent any ambiguity exists meaning, which both includes actual and regarding meaning “possession,” possession: constructive adds, Blackston the “rule lenity” applies A person who knowingly has phys- direct requires the ambiguity be con- ical thing, control over a given time, against strued government, see Busic possession then actual of it. A States, United 446 U.S. person who, although not in pos- actual 1747, 1753, S.Ct. L.Ed.2d 381 session, knowingly has both power ‘(“ “ambiguity concerning the ambit of and the intention given at a time to exer- criminal statutes should be resolved fa- cise dominion or control over thing, ’ ” (citations vor of lenity” omitted)). either directly or through person another persons, is then in posses- constructive blush, At first Blackston’s statutory con- sion it. struction argument appears compelling. inspection, however, Closer Black’s Dictionary (5th reveals it to be Law 1979). ed. misdirected. Blackston is undoubtedly apparently cor- would read into this rect that the “possession” terms definition that may and “use” be estab- no lished means direct synonymous or inter- of actual changeable. physical But control or power that is not position and the urged by intent government to exercise appeal, dominion or nor is control. However, nothing it what the we see district court in the govern- language held. The *7 of section contends, 3583(g) ment or in the and the common district court law con- cluded, definition of the “possession” term that evidence of “use” is cir- forecloses resort to cumstantial circumstantial evi- evidence that the user “pos- dence, including drug use, evidence of drug, sessed” the to perhaps only momentari- prove possession. ly, prior ingesting to it. the Once is issue terms, recast in these Blackston faces an language The of section is also uphill battle, for of use is significant in that it does not qualify or undoubtedly probative possession; of that modify the in any respect. As a is, it has a tendency to possession make result, government the need only establish probable more than it would be without the simple possession, opposed as to evidence, (definition see Fed.R.Evid. 401 of with to intent distribute. charge When the evidence”). “relevant view, In our Black- simple is possession, quantity of the ston therefore must establish that Con- drugs generally (as is irrelevant as long gress, in enacting 3583(g), seсtion intended is possessed defendant found have to a preclude to government adducing from amount”) “measurable because the fact- evidence of prove use to circumstan- finder need not infer an intent to distribute. tially possession of a controlled substance. Bernard, United States v. 757 F.2d Cf. (4th Cir.1985) 1443 (“[quantity ... is C. not a pos- consideration cases of simple issue, To resolve this we turn first to session”); United Jeffers, States v. relatively straightforward language (7th Cir.1975) of 18 F.2d (discussing the 3583(g). See supra standard). Thus, “measurable amount” a section simply states a if defendant on defendant who is on and release re- however, we should admonished, any “measurable possess to is found who resorting the rule reflexively frain from must be substance controlled of a amount” interpre- early in the lenity, especially so of section in accordance sentenced process: tive 3583(g).9 applicable lenity ... of The rule language of subsection to the In contrast ambiguity or “grievous there is a unless section 3583 of structure (g), the overall language and struc- in the uncertainty government’s cast some doubt does Act, a that even after such ture of distinction. use/possession of the treatment “ every thing from has court ‘seize[d] re- of conditions The standard ” “left it is still derived’ aid can be which “pos- and the “use” both prohibit lease “The rule statute.” ambiguous with an These substances.10 of controlled session” operation at comes into lenity] [of not inсlud- apparently prohibitions two construing what process of end repetition. Sec- of the sake simply for ed the be- expressed, not at has Congress very different prescribes instead tion 3583 overriding consideration as an ginning entirely on whether the depending results wrongdoers.” being lenient “possessed” a have is found defendant — U.S. -, States, Chapman v. United merely to have substance controlled 114 L.Ed.2d -, S.Ct. “posses- a Whereas one. “used” emphasis add (citations omitted super- revocation mandates the sion” include both ed). Congress's decision to of a mini- imposition and the in the “possession” “use” and the terms “use” af- term, finding of mum conse different attach statute to revoke discretion fords first, seem, at each would not quences to extend the defendant’s “grievous” something that creates to be release, and/or the term re 3583(g). areWe ambiguity in section supervision. the conditions modify however, the statute to construe quired, whole, therefore, 3583 as Reading section Congress’s regarding clues all after intended Congress plausible that it is therefore We exhausted. intent have been “use” and sharply between differentiate any and see there forge ahead must “possession.” intended light on the that sheds thing else arguably discussion foregoing meaning section in section as ambiguity a latent veals D. If distinction. regards use/possession history Unfortunately, contends, lenity so, the rule insight into Con- 3583(g) offers little direct be con- ambiguity shоuld dictates precise issue regards the supra gress’s intent see government, against strued (g) was appeal.11 Subsection in this recently raised has Supreme Court at 883. *8 (d) legal Subsection 3583(g) substances.” additionally controlled that does section note 9. We order, "may as a that temporal requirement provides a any on further impose of sort not release, any supervised ... of possession. A who defendant further condition defendant’s the discretionary very condition a short forth as a possesses substance for set a controlled condition 3563(b)(1) through by section period probation is no less ensnared in section of time of (b)(20)." possesses (b)(12) through 3583(g) (b)(10) who the Section a than defendant and many point to order 3563(b)(8) empowers substance weeks. district court same for the government's position strengthens any the a use of further from ... "refrain the defendant here, possesses a small who for a defendant drug ... other controlled substance or narcotic for a substance of a controlled amount medical prescription a licensed without consuming fall with- prior to it would 3563(b)(8) time (emphasis brief practitioner.” § 18 U.S.C. 3583(g). purview section in of the added). discretionary forth condition set The 3563(b)(8) stan- one the has become of section conditions, derive di- which standard 10. These every imposed individual dard conditions 3583, rectly were established from section supervised placed release. on the Ad- Committee the Judicial Conference July System in of of Probation ministration Law, Adair, Looking at the generally D. 3583(d) 11.See the courts to instructs Section (Mar.1990) (discussing "order, supervised Federal Probation explicit of an condition as 3583(g) history U.S.C. legislative of possess il- ... that the defendant appended part to 18 drug. provisions The in this section are Anti-Drug massive derived from the Abuse Act of senate amendments to bill, but 100-690, have been (1988). No. pre- Pub.L. 102 Stat. 4390 modified to serve essential elements judicial of or proposed Senate’s version of section parole commission discretion. 3583(g) differed from the version ultimate- Cong.Rec. ly HI1248 significantly (daily enacted that it limited ed. Oct. 1988). range options the district court’s upon finding supervised that a defendant on re- This emphasis on flexibility, as reflected by Congress’s leased rejection had used a controlled substance. of the Senate lan- guage, is not originally Senate, necessarily As drafted inconsistent with subsec- government’s (g) provided: construction section government suggest does not positive tests defendant for il- [I]f (g), subsection in its present form, legal use of controlled substances on two requires the revocation re- separate drug taken tests least 3 every lease time a defendant submits a apart, shall, weeks the court in addition urine sample positive that tests drug any other action which may be taken- Rather, use. government acknowl- revoke the term of edges officers retain broad require lease and the defendant to serve discretion to decide whether to commence a period of imprisonment pursuant proceeding revocation positive based on uri- (e)(4); section nalyses. addition, court, be- (2) require cause its findings the defendant to factual reside and are subject only (for deferential error), review participate in clear program en- a resi- joys leeway under section 3583(g) in mak- dential community treatment center or ing finding its based on evidence drug participate in out-patient an drug treat- use that “possessed” the defendant a con- program ment if residential treatment is trolled All government substance. impractical; or unavailable argues history 3583(g) section —and (3) require the defendant to remain at does not contradict it—is that the district place during residence non-work- court may possession base its pursuant hours (e)(5). to subsection upon positive multiple drug tests and other Notwithstanding any provision other circumstantial evidence such as admitted section, of this if the defendant tests use, Adair, David Assistant General positive illegal use of sub- controlled Counsel of the Administrative Office of the stances on separate urine Courts, United similarly interprets States tests taken apart, at least 3 weeks and its history pre- as not court shall revoke term of cluding resort to evidence of use to pursuant (e)(4) circumstantially establish subseсtion of a controlled substance: require the defendant to serve not less history, than one-third of Given it the term of seems obvious that th[e] Congress did not intend even a ser- release. ies of urinalysis results, much Cong.Rec. (daily S15791 ed. Oct. single positive, less a must necessarily 1988). Congressman Kastenmeier, ex- result in revocation proceedings. Ac- plaining the rationale for the House/Senate *9 cordingly, officers should fol- Conference rejection Committee’s procedures low the currently in effect language, Senate emphasized the need to respect to the commencement of preserve flexibility: proceedings positive revocation on based Section 7303 to relates the revocation of urinalyses. The current statute would probation, parole supervised or release require sentencing revocation and ac- person when such has adjudicated been cording provisions thereof, to the how- by the court to have violated a ever, criminal proceedings revocation are com- relating law to possession illegal of an menced the court specifically and finds requires
whether that upon single section revocation positive urinalysis). based a on position possession nor Blackston’s government’s inwas individual an that of to the Supreme pursuant As the use/possession issue. substance controlled the a urinalyses. stated, wheth questionable “it is has Court in a bill the of such er introduction added).12 [the supra, (emphasis Adair, subsequent leg to even amount[s] Senate] 1988, section in its enactment Since guide an unreliable history islative —itself congres- of subject a has remained 3583(g) Chapman, at -, legislative intent.” for further candidate and debate sional 1927 n. 4.14 111 S.Ct. at Drug National the of part As revision. Act of Implementation Strategy Control history legislative Having the reviewed amend subsec- proposed to 1990, the Senate are confident 3583(g), we section of phrase “pos- the inserting after by (g) tion preclude the intend to Congress not did the fol- substance” a controlled of session drug considering of from evidence courts unlawfully uses a controlled “or lowing: posses- of as circumstantial use in cooperate drug or refuses substance are now satis- importantly, More we sion. super- of condition imposed testing of subsec- language the fied that neither (daily Cong.Rec. S6588 release.” of section overall structure (g) nor the tion 1990).13 This amendment —un- May ed. ambiguity or un- “grievous” creates (g) subsection version of current like the interplay the between certainty regarding original Senate to the similar somewhat but the statute. Ac- possession under and use revocation of have made language —would is no need to find that cordingly, there we mandatory upon a sin- release interpreting lenity in sec- apply the of rule this amend- urinalysis. That gle positive 3583(g). tion to be evidence enacted seems was not ment to favor the flexi- Congress continues Be- present scheme. in the bility inherent E. the introduction of think yond we gener- history is Although legislative the enact) the above failure (and Congress’s addressing inconclusive, the law case ally materially neither the advances amendment Helms, lawfully uses a controlled substance of one of Senator refuses 12. The remarks drug imposed as a con- cooperate testing 3583(g), demonstrate that sponsors of section the court shall (g) dition adding to section Congress, 3583, subsection supervised release and the term of problem terminate about concerned also was prison require the defendant serve supervised release. drug defendants use of the term showing less one-third direct than “a link Citing studies numerous behavior," release. Sena- and criminal drug use between revision). proposed (Emphasis indicates tor Helms commented: light the clear correla- [M]y point that in 14, 1991, pro- January Thurmond Senator 14.On behavior, drug use and criminal between by deleting posed section to amend of recidivism way down on the rate to cut one among mandatory prison term and in- minimum conditionally who have been criminals structing court to sentence defen- district that re- to terminate released from 3583(e)(3). with section dant in accordance immediately upon the first indication lease proposed version sub- Senator Thurmond's activity. is thе reason for illegal That provides: (g) section my amendment. to be in is found the court If the defendant President, by requiring the termination Mr. possession of a controlled sub- unlawful stance, for individuals who release conditional of possess the term of shall revoke drugs, down on illegal cut will require the defendant and, hope, repeat I also offenses number of imprisonment a term to serve authorized among use incidence cut down on (e)(3). under subsection are released. who those 14, 1991) (daily Cong.Rec. ed. Jan. S887 21, 1988). (daily Oct. Cong.Rec. S17321 ed. revision). If (emphasis proposed indicates Unfortunately, comments do Senator Helms’s enacted, proposed amend- Thurmond’s Senator Congress's light intended inter- any not shed Sentencing Commission accord the would ment greater under play between sentencing flexibility promulgating policy sanction- *10 guidelines statements or who, pro- supervised (g) been amended re- ing lease, while Had of defendants subsection 13. possess follows: a controlled sub- posed, have read as found to it would Congress writing, has taken of this As stance. court to be in is found If the defendant possession proposal. no action on or un- controlled substance of a
887
using
occasion,
in the context of
cocaine on one
use/possession issue
that
squarely
laboratory testing
down
had confirmed
supervised release has come
this ad-
Indeed, these mission.
Id. at 464. As an
government’s side.
alternаtive
on the
ground
cases,
ground
upholding
their treat-
for
essentially
court’s
which
revocation,
question on the
the Seventh Circuit stated that
use/possession
ment of
defendant,
cocaine,
by using
that someone cannot
had violat-
metaphysical notion
supervised
ed the first condition
a controlled substance
of his
re-
voluntarily consume
lease,
posses-
required
which
momentary prior
that
the defendant
without at least
federal,
sion,
thought
not “commit another
apparently have
the resolu-
state or local
crime.” The
court
sufficiently
issue to be so self-evident that
Dillard
was
tion of this
explanation
reasoning
confident of its
that
does not merit serious
it too rele-
it
gated its entire discussion to a
analysis.
footnote:
Cocaine is a Schedule II controlled sub-
Kindred,
In
v.
918 F.2d
United States
stance, possession of
which
unlawful.
(5th Cir.1990),
Fifth
example,
for
Knowing
cocaine,
use of
which
de-
supervised
upheld
[the
a revocation of
Circuit
here, requires pos-
admitted to
two-year
fendant]
imposition
release and an
of a
session,
Thus,
momentarily.
even
(two-thirds of the term of
prison sentence
admitted use of the
release)
on, among
[the defendant’s]
other
supervised
based
drug,
by laboratory
confirmed
testing,
things,
that
the defendant had
illegal
was
under federal and state law.
drugs
positive for
and admitted to
tested
Rodriguez,
See United States v.
using controlled
purchasing and
sub-
(7th Cir.1987)
F.2d
(possession
Although
district court had
stances.
of controlled
may
substances
be actual or
it,
expressly upon
not relied
Kindred
may
constructive and
be established
3583(g)
opined
in-
that
U.S.C. §
evidence).
direct and circumstantial
appeal:
terred the defendant’s
problem
faces
[the defendant]
(citations omitted).
at 464 n. 3
This
Id.
mandatory language of 18
is the
“alone,”
held,
violation
the Seventh Court
3583(g).
3583(g) required
Section
§
provided a sufficient basis for the revoca-
supervised
district court to revoke the
tion of
release.
Id.
464-65.
.
impose prison
release and
term not less
Graves,
In United States v.
889
“possession”
“use” and
of a controlled sub-
sion and/or control of the drug prior to
crimes,
separate
taking
there-
stance
and that
it.
the former cannot
established cir-
fore
be
138,
at
Id.
ter. We will discuss one
Franklin court determined that
the evi-
group.
case from each
dence of
drug
defendant’s
use was suffi-
cient to support his
posses-
conviction for
1.
sion:
State,
134,
Md.App.
258
Franklin v.
8
statement “that he had tak-
[defendant’s]
(1969),
typical
A.2d 767
of the first cate-
en an overdose of heroin intravenously,”
Franklin,
gory. The defendant in
after
out,”
after which he
“passed
justi-
being brought
hospital emergency
into a
fies
only
prior
inference that
room,
attending physician
admitted to an
taking
drug,
such
he necessarily was in
heroin,
that he had overdosed on
and also
possession
it,
inference,
but also the
symptoms
exhibited
consistent with this ad-
absent
affirmative contradictory evi-
evidence,
mission.
Based
the State
dence,
was self-adminis-
charged
possession
the defendant with
tered, or administered by another at his
trial, however,
heroin. At
the defendant
(thus
direction
рlacing him in construc-
injected heroin,
testified that he had not
possession
tive
drug).
of the
That [de-
drinking
but rather had
heavily
been
on the
physical condition was consist-
fendant’s]
night
question,
and that he did not recall
ent with
having
taken an overdose of
making any
alleged
of the
incriminating
heroin
clear
hospital
from
physi-
[the
hospital physician.
statements to the
Re-
testimony.
cian’s]
jecting
testimony,
the defendant’s trial
140-41,
(footnote
at
Id.
viction was
notwithstand-
2.
ing
appellate
recognition
court’s
Supreme
Court Kansas’s decision
such a
likely
decision
deter
would
831,
Flinchpaugh,
State v.
232 Kan.
659
seeking
users from
medical attention.
(1983),typifies
P.2d 208
catego-
the second
The court
generically
noted
ry. In Flinchpaugh, samples of the defen-
showing
blood,
person
that a
has a
dant’s
which were extracted follow-
prohibited
sys-
accident,
narcotic
within his
an automobile
revealed the
tem,
per
constituting posses-
while not
se
presence of cocaine
benzoylecgo-
and/or
...,
(a
metabolite).
sion or control
would tend to show nine
cocaine
Although it
circumstantially
posses-
that he was in
lacked direct evidence of how or when the
589, 590,
407,
Similarly,
Supreme
Georgia
Ga.App.
(1990).
Court of
394 S.E.2d
408
State,
625,
Rather,
Georgia Supreme
explained,
Green v.
260 Ga.
chemicals were
bloodstream,
charged the
P.2d at 212.
State
dant’s
*13
court,
trial
possession. The
defendant with
reflects,
quoted passage
As the above
hearing, dismissed
following preliminary
a
confronting
clearly
is
dis-
the situation
us
the
appealed; and
charge;
the State
this
tinguishable from that which faced
Su-
affirmed.
In so
Supreme
of Kansas
Court
preme
Flinchpaugh.
Court of Kansas
pres-
doing,
held that
mere
the Court
gain
revocation of
To
in the defen-
substance
ence of a controlled
government
posses-
need not establish
circum-
bloodstream was insufficient
dant’s
doubt; instead, a
beyond
sion
a reasonable
prove beyond a reason-
stantial evidence to
showing
possession by
preponderance
a
pos-
defendant had
able doubt
suffices.
18
of the evidence
See
ingesting it.20
the substance before
sessed
Moreover,
3583(e)(3).
government
initially appears
Although
result
produce
corroborating
did
“other
this case
here,
government’s position
odds with the
positive
beyond the
urine tests—
evidence”
analysis does not
Flinchpaugh
Court’s
wit, Blackston’s admission that he had
government’s ar-
completely undercut the
separate
used cocaine on three
occasions
gument
respect
to section
with
prison.
his release from
Such an
since
The Court stated:
excludes the
other reason-
admission
Discovery
person’s
blood is
of a
a
explanatiоns
able
of how cocaine metabol-
prove
tending to
circumstantial evidence
body,
were introduced into Blackston’s
ites
drug,
but it is not
prior possession of
drugs
ingested
namely, that the
were
invol-
guilt
evidence to establish
be-
sufficient
trick,
by
or inhaled
untarily, administered
The absence
yond a reasonable doubt.
from the environment.21
passively
proof
knowledgeable posses-
to evince
drug might
The
have
key.
sion is the
3.
injected involuntarily, or introduced
been
artifice,
system.
by
into the defendant’s
however,
is,
category
There
a
of cases
prosecutor
did not establish that de-
clearly repudiates
government’s
knowingly
fendant
had control of
ever
position
use/possession
on the
issue. Most
the cocaine.
group
People
Spann,
notable of this
v.
400,
(3d
Cal.App.3d
Cal.Rptr. 31
187
232
835,
(emphasis
Id. at
Y. possession. Thus, constitutes I cannot see that Cоngress either or the reasons, foregoing For the the order of Commission judicial offers the flexibility revoking the district court Blackston’s term majority creates. imposing release and a sen- Finally, disagree I majority’s years imprisonment tence of three bewill conclusion that evidence of voluntary drug affirmed. use is merely probative of possession, or merely a tendency has make NYGAARD, Judge, concurring. Circuit probable. more Under their “pos- view of I the primary believe issue before session” 3583(g), under probationer in- § quite simple: court is does voluntary tending drug caught use who is possessing solely use by laboratory analy- established drugs in hand necessarily super- loses “possession” sis purposes constitute for probationer whereas a in sim- 3583(g)? 18 U.S.C. That is the issue the § ilar quickly circumstances who ingests the Commission has asked the courts to de- same drugs just unnoticed before a search cide.1 That is the issue the district court qualify judicial would for flexibility. Sure- decided.2 That is appellant what contests.3 ly, Congress and the Commission did not disagree I majority with the view 3583(g) intend to treat preferentially § “possession” ambiguous is an term as used who, by design those or happenstance, 3583(g), legislative such that resort to avoid a finding of drug possession by history required to decide this issue. I means of voluntary view, use. In my agonize see no reason legisla- over the use by laboratory established analysis con- history underlying tive Congress’ use of drug possession stitutes purрoses the term. plain meaning. Possession has a Either voluntarily possessed co- The laboratory analysis in this case es- case, caine the circumstances of this tablished that Blackston drugs in his he did not. body. Blackston admits his voluntary use. Second, I disagree majority’s with the With he should not be able success- recognize effort to what it calls the “flexi- fully argue he possessed never drugs bility present (At inherent in the scheme.” voluntarily he used. I would hold that 886) straightforward language con- laboratory analysis confirming illegal drug tained in of Title 18 little leaves “possession” alone constitutes pur- judicial flexibility. simply It states poses 3583(g).4 of 18 U.S.C. § defendant is found the court inbe *18 possession of a controlled substance it
shall terminate his release.
Similarly, Application Commission’s grant
Note No. 5 does judicial flexibili-
ty except to leave it to the courts to decide
whether by use laboratory established Application No. holding Note 5 Guidelines 7B1.4 bright 4.So would establish same provides: adopted line rule in other circuits. United Dillard, 461, 464, leaves (7th Commission to the court the deter- States v. 910 F.2d n. 3 usage mination of whether evidence of Cir.1990) here, (Where, use was confirmed by laboratory solely analysis established con- analysis, admission and lab concluded possession stitutes ... knowing requires posses use of cocaine sion, momentarily.) even United States v. presence
2. The district court found that "the Kindred, 485, 465, (5th Cir.1990) F.2d cocaine in the n. 3 [of urine as evidenced Blackston] (use urinalysis analysis. admitted confirmed lab constitutes ...” following "knowing The court Dillard said use appeal 3. Blackston contends that the district also, drugs possession.”) akin to See Unit court erred and "submits district court’s Graves, (8th ed States 914 F.2d Cir. 'possession' predicated cannot be 1990) (drug equivalent possession.) laboratory analysis ... admitted ‘use’ and/or controlled substances ...”