U.S. v. Smith ( 1992 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 92-8103
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEITH ANTONIO SMITH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
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(November 13, 1992)
Before GARWOOD, JONES, and EMILIO M. GARZA, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Appellant Smith pled guilty to one count of aiding and
abetting the distribution of crack cocaine. 21 U.S.C. § 841(a)(1);
18 U.S.C. § 2. He was sentenced to an eighteen-month term of
imprisonment to be followed by a five-year term of supervised
release. Having served his initial sentence, he now appeals from
the revocation of his supervised release term. We hold that the
trial court did not err in finding that Smith was in possession of
a controlled substance, in violation of the conditions of his
supervised release, and was therefore required to serve in prison
not less than one-third of the supervised release term. 18 U.S.C.
§ 3583(g).
As one of the conditions of his supervised release, Smith
was to refrain from the use of any controlled substances and was to
submit himself for periodic urine drug tests as directed by his
probation officer. Shortly after beginning his period of
supervised release, Smith submitted urine samples for analysis on
January 3 and January 10, 1992, both of which yielded positive
results for the presence of cocaine metabolite. At the revocation
hearing, the government's factual summary included a statement that
Smith had admitted to his probation officer the use and possession
of cocaine on two occasions. First, Smith had placed some cocaine
in a beer which he than drank; second, on another occasion, he and
a friend smoked crack cocaine. These events were corroborated by
the above-mentioned positive urinalysis tests. In acknowledging to
the trial court his violation of the supervised relief terms,
however, Smith stated only that he used the cocaine.
On appeal, Smith contends that as a matter of law, the
"use" of controlled substances during supervised release is not
equivalent to their "possession." From his standpoint, such a
distinction is important. If Smith only used crack cocaine, the
district court retained sentencing discretion on revocation of
supervised release. A finding of possession, however, triggers a
mandatory minimum sentence of no less than one-third of the term of
supervised release. 18 U.S.C. § 3583(g).
Even if it is possible to differentiate use from
possession of a controlled substance, Smith did not do so on the
facts of this case. Whether he possessed a controlled substance in
violation of the conditions of his supervised release was a factual
question committed to the trial court. The district court, in
finding that Smith possessed crack cocaine, did not rely solely on
the two positive urinalyses, as Smith contends. Rather, appellant
Smith admitted that he used cocaine on two occasions since his
release. He admitted possession when he told the probation officer
that someone gave cocaine to him and he placed it in his beer. He
further admitted that, on a different occasion, he smoked crack
with another individual. Smith did not allege or prove that the
cocaine was administered against his will or by trick. The
district court's finding of possession is not clearly erroneous.
Our conclusion that admission of use of a contraband
substance, as well as positive urinalysis test results, may
constitute circumstantial evidence of possession of a controlled
substance for purposes of section 3583(g) follows that of other
circuit courts. United States v. Blackston, 940 F.2d 877, 891 (3d
Cir.), cert. denied, ____ U.S. ____, 112 S. Ct. 611, 116 L.Ed.2d
634 (1991) (extended discussion of § 3583(g)); United States v.
Dillard, 910 F.2d 461, 464 n.3 (7th Cir. 1990); United States v.
Baclaan, 948 F.2d 628, 630 (9th Cir. 1991); United States v. Ramos-
Santiago, 925 F.2d 15, 17 (1st Cir.), cert. denied, _____ U.S.
_____, 112 S. Ct. 129, 116 L.Ed.2d 96 (1991); United States v.
Alli, 929 F.2d 995, 996 (4th Cir. 1991); see, United States v.
Kindred, 918 F.2d 485, 487 n.3 (5th Cir. 1990) ("Knowing use of
drugs is akin to possession.").
For these reasons, the judgment of the district court is
AFFIRMED.