United States v. Dow

April 13, 1993 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 91-1829
UNITED STATES,
Appellee,
v.
GLENN DEREK DOW, a/k/a GLENN DERRICK DOW,
Defendant, Appellant.
ERRATA SHEET
The opinion of this court issued on April 5, 1993, is
amended as follows:
On page 5, line 7: "ingenuous" should read "ingenious".
April 7, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 91-1829
UNITED STATES,
Appellee,
v.
GLENN DEREK DOW, a/k/a GLENN DERRICK DOW,
Defendant, Appellant.
ERRATA SHEET
The opinion of Court issued on April 5, 1993, is amended as
follows:
On page 5, the first line delete the "47" included in the
citation " 473583".
April 5, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 91-1829
UNITED STATES,
Appellee,
v.
GLENN DEREK DOW, a/k/a GLENN DERRICK DOW,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Torruella, Circuit Judge,
Brown* and Bownes, Senior Circuit Judges.
Roger A. Cox, by Appointment of the Court, for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Richard S. Cohen, United States Attorney, Jonathan R. Chapman,
Assistant United States Attorney, and Raymond C. Hurley, Assistant
United States Attorney, were on brief, for appellee.
April 5, 1993
*Of the Fifth Circuit, sitting by designation. Judge Brown heard oral
argument in this matter, and participated in the semble, but did not
participate in the drafting or the issuance of the panel's opinion.
The remaining two panelists therefore issue this opinion pursuant to
28 U.S.C. 46(d).
BOWNES, Senior Circuit Judge. The issue in this
BOWNES, Senior Circuit Judge.
case is whether the district court erred in sentencing
defendant for a violation of one of the conditions of his
supervised release under 18 U.S.C. 3583(g), which provides:
(g) Possession of controlled
substances. 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.
I.
Factual Context
Defendant-appellant Glenn Derek Dow was sentenced on
drug charges in April of 1989 to imprisonment for a term of
sixteen months to be followed by a six-year term of
supervised release. One of the conditions of supervised
release was that Dow "shall not purchase, possess, use,
distribute or administer any narcotic or other controlled
substance, except as prescribed by a physician."
In June of 1991, the probation office sought
revocation of Dow's supervised release because eleven urine
tests proved positive for the use of marijuana.1 At the
revocation hearing before the district court on July 19,
1991, Dow was represented by counsel. After being fully
1 The probation office alleged two other violations, but they
are not issues on this appeal.
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advised of his rights Dow pled guilty to violation of the
supervised release condition. His counsel advised the court
that she concurred in defendant's decision to plead guilty.
No reservations or qualifications were made a part of the
plea.
At the subsequent sentencing hearing, the district
court found and ruled as follows:
The Court further finds on the evidence
that this defendant has been in possession of
a controlled substance, to wit, marijuana,
within the meaning of 18 U.S.C. section
3583(g) during the period of supervised
release.
The Court concludes that defendant is
subject to a minimum sentence of 2 years of
incarceration, see 18 U.S.C. Section 3583(g),
and a maximum term of three years, see 18
U.S.C. 3583(e)(3).
The Court concludes that the applicable
guideline range under the applicable
guideline pursuant to section 7B1.4(a) is 4
to 10 months.
The Court further concludes that the
statutory command of 3583(g) controls in this
case and mandates a minimum term of
incarceration of two years.
II.
Discussion
Dow's only contention on appeal is that the use or
consumption of marijuana, evidenced solely by laboratory
analysis of urine samples, did not constitute "possession" of
marijuana within the meaning of 18 U.S.C. 3583(g). We
point out first that Dow pled guilty, without reservation or
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qualification, to violating his supervised release condition
that he "shall not purchase, possess, use, distribute or
administer any narcotic or other controlled substance. . . .
" In light of his guilty plea, which was voluntary,
knowing and made with advice of counsel, we do not see how
Dow can now deny that he was not "in the possession of a
controlled substance," as stated in 3583(g). Dow did not,
as his brief implies, limit his plea to accepting the results
of the laboratory analyses of his urine samples. His guilty
plea admitted the possession and use of a narcotic or
controlled substance. That is sufficient to trigger the
sentencing mandate of 18 U.S.C. 3583(g).
We proceed, nonetheless, to a full discussion of
defendant's argument. Dow first points out that Sentencing
Guideline 7B1.4 prescribes a sentence of four to ten months
for an offender such as himself, who has committed grade C
violations of his supervised release and has a criminal
history category of II. This is, of course, shorter than the
two-year sentence mandated by 18 U.S.C. 3583(g) (one-third
of Dow's supervised release term of six years).
Defendant's main argument is that a study of 18
U.S.C. 3583(d) and 18 U.S.C. 3563(b)(8) shows that
Congress made a sharp distinction between use or consumption
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of a drug and possession of that drug.2 We find nothing in
the wording of 3583(d) or 3563(b)(8) that even suggests
such a distinction. Dow attempts to buttress his argument by
invoking "policy reasoning": a defendant possessing a
controlled substance can cause considerable social harm by
selling or otherwise distributing drugs in her/his possession
to others; "use" alone, however, limits the direct harm to
the defendant alone. This is an ingenious argument, but it
is spun out of whole cloth. There is no basis for it in the
wording of the statute or its legislative history. Nor do we
think that the Senate's rejection of a proposed draft of
3583(g), which would have required a defendant to serve a
prison term of not less than one-third of the term of
supervised release if he/she tested positive for use of
2 18 U.S.C. 3583(d) provides in pertinent part:
(d) Conditions of supervised release. The
(d) Conditions of supervised release.
court shall order, as an explicit condition
of supervised release, that the defendant not
commit another Federal, State, or local crime
during the term of supervision and that the
defendant not possess illegal controlled
substances.
Under 18 U.S.C. 3563(b)(8), a court may, as a condition
of sentence, order a defendant to:
(8) refrain from excessive use of
alcohol, or any use of a narcotic drug or
other controlled substance, as defined in
section 102 of the Controlled Substances Act
(21 U.S.C. 802), without a prescription by a
licensed medical practitioner;
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controlled substances after three separate urine tests,
affords any footing for appellant's argument. His "policy
reasoning" should be directed to the Congress. We find no
ambiguity in the statute and thus reject defendant's plea for
application of the rule of lenity.
We do not stand alone in our rejection of Dow's
argument. His contention has been rejected by all federal
courts of appeal that have considered it. See United States
v. Baclaan, 948 F.2d 628, 630 (9th Cir. 1991) (upholding
district court's finding that defendant possessed drugs
within meaning of section 3583(g) based on defendant's
admission of use and four positive laboratory test results);
United States v. Blackston, 940 F.2d 877 (3rd Cir.), cert.
denied, 112 S. Ct. 611 (1991) (defendant's admission of drug
use and three positive urine samples constituted possession
for purposes of section 3583(g)) (includes a thorough
examination of section 3583(g), its legislative history, and
the treatment of the attendant use/possession issue in
federal and state courts); United States v. Oliver, 931 F.2d
463, 465 (8th Cir. 1991) (district court properly sentenced
defendant under section 3583(g) upon a finding, based on
numerous positive test results, that defendant possessed a
controlled substance); United States v. Kindred, 918 F.2d
485, 487 n.3 (5th Cir. 1990) (in upholding defendant's
supervised release revocation and sentencing under section
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3583(g) without direct evidence of physical possession court
assumed "[k]nowing use of drugs is akin to possession");
United States v. Dillard, 910 F.2d 461, 464 n.3 (7th Cir.
1990) ("Knowing use of cocaine, which [the defendant]
admitted to here, requires possession, even if only
momentarily;" affirmed revocation of supervised release based
in part upon defendant's admission of use and confirmatory
laboratory test results).
Finally, there can be no doubt that when there is a
conflict between what the sentencing guidelines provide and
what a statute requires, the statute controls. We recently
joined every circuit that addressed this matter "in
concluding that the sentencing guidelines adopt, rather than
replace, a statutory minimum sentence." United States v.
Rodriguez, 938 F.2d 319, 320 (1st Cir. 1991) (citing cases
from the circuits). See also United States v. Clark, 956
F.2d 1176, 1178 (D.C. Cir. 1992) ("the Guidelines do not
apply without the statutory fetter [congressionally mandated
minimum sentences]"). See also U.S.S.G. 5G1.1.
The sentence of the district court is Affirmed.
Affirmed.
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