United States v. Smith ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 95-5154
MARCUS LAMAR SMITH, a/k/a Champ
Smith,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-92-90)
Submitted: March 12, 1996
Decided: March 28, 1996
Before HALL, MURNAGHAN, and WILKINS, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Paul M. McKay, McKAY & McKAY, Wheeling, West Virginia, for
Appellant. William D. Wilmoth, United States Attorney, Sam G.
Nazzaro, Assistant United States Attorney, Wheeling, West Virginia,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Marcus Lamar Smith appeals the district court order revoking his
supervised release and imposing a sentence of eight months. Smith
contends that the district court erred in finding that positive urinalyses
for drugs, by itself, was sufficient to establish knowing possession of
a controlled substance during his supervised release in violation of 18
U.S.C.A. § 3583(g) (West Supp. 1995). He further maintains that the
Government had a duty to prove that second-hand smoke did not
cause his positive urinalyses and the Government did not meet that
burden.
This court must review the district court's finding for an abuse of
discretion. United States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992).
The district court had only to find a violation of a condition of
Smith's supervised release by a preponderance of the evidence. 18
U.S.C. § 3583(e)(3) (West Supp. 1995).
Section 3583(g) 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.
The conditions of Smith's supervised release contained the same
restriction.
This court has previously held that the determination of whether
culpable use is established solely by laboratory tests is properly left
to the district courts. United States v. Clark , 30 F.3d 23, 26 n.2 (4th
Cir.), cert. denied, ___ U.S. #6D6D 6D#, 63 U.S.L.W. 3421 (U.S. Nov. 28,
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1994) (No. 94-6495); see also United States v. Almand, 992 F.2d 316,
318 (11th Cir 1993).
The district court in this case found that Smith submitted a urine
sample which tested positive for the presence of cocaine and hydro-
morphone in September 1994. The court further found that Smith
signed a form admitting illegal and unauthorized drug use in Septem-
ber. The court noted that there was conflicting testimony about what
the probation officer informed Smith as to the use of the form. How-
ever, the court found that it was unlikely and unreasonable for Smith
to assume that the signing of the acknowledgment form was a carte
blanche to commit further violations of the conditions of his super-
vised release. The court also found that Smith submitted a urine sam-
ple in October 1994 that tested positive for cocaine and November
1994 that tested positive for cocaine and hydromorphone. In addition,
the court found that there was no competent medical evidence pres-
ented that the medications that Smith was taking would present a false
positive for cocaine or hydromorphone. Finally, the court found that
the testimony from Smith and his wife that when he was in the pres-
ence of those he felt were using drugs he either left the house immedi-
ately or they quit using the drugs discounted Smith's claim that his
urinalyses tested positive for controlled substances because he was
exposed to second-hand smoke. See United States v. Courtney, 979
F.2d 45, 49 (5th Cir. 1992). The district court found, based on Smith's
positive urinalyses on at least two occasions, that Smith possessed a
controlled substance in violation of the terms of his supervised
release. The district court did not abuse its discretion in making these
findings.
Smith next claims that his inability to pay the imposed fine pre-
cluded the district court from revoking his supervised release based
on his failure to pay the fine. However, the district court did not
revoke Smith's supervised release based on his failure to pay his fine.
Rather the court reinstated the remainder of the fine previously
imposed. See United States v. Webb, 30 F.3d 687 (6th Cir. 1984);
United States Sentencing Commission, Guidelines Manual,
§ 7B1.3(d), p.s. (Nov. 1994).
Accordingly, we affirm the district court's order. We dispense with
oral argument because the facts and legal contentions are adequately
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presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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