U.S. v. Rockwell, 92-6121

• Decision Date: 29 January 1993
• Docket Number: No. 92-6121,92-6121
• Citation: 984 F.2d 1112
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timothy Tyrone ROCKWELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1112

984 F.2d 1112

UNITED STATES of America, Plaintiff-Appellee, v. Timothy Tyrone ROCKWELL, Defendant-Appellant.

No. 92-6121.

United States Court of Appeals, Tenth Circuit.

Jan. 29, 1993.

William P. Earley, Asst. Federal Public Defender, Oklahoma City, OK, for defendant-appellant.

Teresa Black, Asst. U.S. Atty. (Timothy D. Leonard, U.S. Atty., with her on the briefs), Oklahoma City, OK, for plaintiff-appellee.

Before ANDERSON and EBEL, Circuit Judges, and LUNGSTRUM, ^* District Judge.

STEPHEN H. ANDERSON, Circuit Judge.

Timothy Tyrone Rockwell's supervised release was revoked for possession of an unprescribed controlled substance. He appeals the district court's ensuing order for incarceration and further supervised release. The questions which we must decide are: (a) whether the presence of a controlled substance in the body of a person on supervised release constitutes "possession" of that substance for the purposes of 18 U.S.C. § 3583(g), assuming the requisite mens rea; and (b) whether a district court can impose both incarceration and further supervised release upon revocation of the originally-imposed supervised release for unlawful possession of a controlled substance pursuant to 18 U.S.C. § 3583(g). For the reasons set forth below, we answer the first question in the affirmative and the second in the negative. Accordingly, we affirm in part but vacate that part of the district court's order imposing incarceration and supervised release and remand the case for reconsideration and imposition of a term of incarceration.

BACKGROUND

After conviction for bank robbery, Rockwell was sentenced to thirty months in prison, to be followed by three years of supervised release. He completed his prison sentence and began supervised release, which included the standard condition of supervision number 8: "the defendant ... shall not ... possess [or] use ... any narcotic or other controlled substance ... except as prescribed by a physician." R. Vol. I tab 17 at 4.

On December 27, 1991, Rockwell tested positive for marijuana use in a random urinalysis. He admitted that he had used marijuana a few days prior to that test. On January 8, 1992, he again tested positive for marijuana, although he denied additional marijuana use on or just prior to this date, claiming that the positive results were due to a residue of marijuana still in his body from the previous use. On February 19, 1992, he tested positive for cocaine use, which he attempted to excuse by recounting that a friend had given him a "tablet" to ease the pain of a toothache. He stated that although the substance was apparently cocaine, he did not know it was, and thus he could not have willfully and knowingly violated the condition of his supervised release prohibiting the use of drugs on this occasion.

After these three positive urinalyses, Rockwell was taken into custody, and the district court held a supervised release revocation hearing. At this hearing, the court was not persuaded by Rockwell's testimony explaining the results of the second and third urinalyses. ¹ The court concluded that Rockwell had knowingly and wrongfully used marijuana and that he had knowingly and willfully used cocaine as indicated by the urinalysis test results, noting that Rockwell admitted the knowing use of marijuana a few days prior to December 27, 1991. R. Vol. II at 45. The court also stated that knowing, willful use of a controlled substance necessarily implies possession of that substance. Id. at 48-49.

The court held that Rockwell had violated the terms of his supervised release and that the violation was governed by 18 U.S.C. § 3583(g). See R. Vol. II at 46, 48-49. 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 court ordered that Rockwell serve twelve months of incarceration, to be followed by twenty-five months and twenty-eight days of further supervised release. R. Vol. II at 49; United States v. Rockwell, No. CR 89-61-A, Order (W.D.Okla. Mar. 13, 1992). Rockwell appeals both the determination that he violated 18 U.S.C. § 3583(g), and the sanction of supervised release in addition to a term of incarceration.

While we review orders revoking supervised release for abuse of discretion, United States v. Stephenson, 928 F.2d 728, 731-32 (6th Cir.1991); United States v. Dillard, 910 F.2d 461, 464 (7th Cir.1990), we review de novo the legal questions relating to the applicability of § 3583(g) and the imposition of both incarceration and additional supervised release following termination of supervised release for unlawful possession of a controlled substance. See United States v. Blackston, 940 F.2d 877, 882 (3d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 611, 116 L.Ed.2d 634 (1991).

DISCUSSION

I.

Rockwell contends that the district court erred in applying § 3583(g) to terminate his supervised release because that statute requires a finding of possession of drugs, and, at most, the evidence only proves that he was using drugs. ² In other words, Rockwell argues that use does not constitute possession.

The district court was correct. There can be no more intimate form of possession than use. We hold that a controlled substance in a person's body is in the possession of that person for purposes of 18 U.S.C. § 3583(g), assuming the required mens rea. "Use" in this context is synonymous with possession. See United States v. Courtney, 979 F.2d 45, 49 (5th Cir.1992) ("[U]nder the present statutory scheme for criminal offenses, use is subsumed within possession."); United States v. Smith, 978 F.2d 181, 182 (5th Cir.1992) (admitted use of contraband substance can be evidence of possession for purposes of § 3583(g)); United States v. Baclaan, 948 F.2d 628, 630 (9th Cir.1991) ("possession," within the meaning of § 3583(g), was properly determined based on positive urine tests for methamphetamines) (citing Blackston, 940 F.2d at 891; United States v. Oliver, 931 F.2d 463, 464-65 (8th Cir.1991) (affirming revocation of supervised release on the basis of positive urinalysis for various controlled substances); United States v. Ramos-Santiago, 925 F.2d 15, 17 (1st Cir.) (same), cert. denied, --- U.S. ----, 112 S.Ct. 129, 116 L.Ed.2d 96 (1991); United States v. Kindred, 918 F.2d 485, 487 [ & ] n. 3 (5th Cir.1990) (same; "Knowing use of drugs is akin to possession.")); Blackston, 940 F.2d at 883 ("evidence of drug use is undoubtedly probative of possession"); cf. United States v. Thompson, 976 F.2d 1380, 1381 (11th Cir.1992) (§ 3583(e) and (g) applied without comment after offender tested positive for cocaine use); United States We agree with the district court's statement that "it's just errant sophistry ... that somebody has knowingly and willfully used a controlled substance and simultaneously claim[s] that that does not necessarily imply possession." R. Vol. II at 48. Accordingly, we affirm that part of the district court's disposition in which the court applied 18 U.S.C. § 3583(g) to terminate Rockwell's supervised release for possession of a controlled substance. ⁴

v. Graves, 914 F.2d 159, 161 (8th Cir.1990) (dictum equating use and possession); United States v. Granderson, 969 F.2d 980, 981-82 (11th Cir.1992) (equating use and possession in the probation revocation context); United States v. Gordon, 961 F.2d 426, 429 (3d Cir.1992) (same). ³

II.

Rockwell next contends that the district court erred in imposing both incarceration and additional supervised release as a sanction following revocation of his original term of supervised release. Section 3583(g) does not resolve the issue. It requires a sanction of incarceration and fixes a minimum term. It does not address the maximum term, or whether and to what extent an additional term of supervised release may also be imposed. For answers to those questions the district court, reading section 3583 as a whole, must look to a preceding subsection of the statute, 18 U.S.C. § 3583(e). ⁵ See Thompson, 976 F.2d at 1381 (imprisonment for maximum term allowed by § 3583(e)(3), imposed for infraction covered by § 3583(g), rather than shorter term allowed by U.S.S.G. § 7B1.4, p.s., was not an abuse of discretion); United States v. Headrick, 963 F.2d 777, 782-83 (5th Cir.1992) (maximum sentence provided by § 3583(e)(3), imposed for infraction covered by § 3583(g), was not plainly unreasonable); United States v. Montez, 952 F.2d 854, 859-60 & n. 2 (5th Cir.1992) (approved use of the maximum term of imprisonment from § 3583(e)(3) in a § 3583(g) case; applied the preponderance of the evidence standard from § 3583(e)(3)); Oliver, 931 F.2d at 465 (imprisonment for a term greater than the minimum required by § 3583(g) but less than the maximum allowed by § 3583(e)(3) "was reasonable and well within the statutory limits").

Rockwell concedes that under our decision in United States v. Boling, 947 F.2d 1461 (10th Cir.1991), the sanctions imposed upon him are permissible under § 3583(e). ⁶ Boling, rejecting an opposite view by the Ninth Circuit in United States v. Behnezhad, 907 F.2d 896 (9th Cir.1990), holds that upon revocation of supervised release, § 3583(e) allows courts to order incarceration and a further period of supervised release.

Three developments have occurred with respect to this issue subsequent to Boling.

                First, four circuits which have addressed the issue have agreed with the Ninth Circuit's result in Behnezhad and held that § 3583(e) does not allow both incarceration and the imposition of further supervised release.   See United States v. McGee, 981 F.2d 271 (7th Cir.1992);  United States v. Koehler, 973 F.2d 132, 134-36 (2d Cir.1992), cited in United States v. Bermudez, 974 F.2d 12, 13 (2d Cir.1992) (per curiam);  United States v. Cooper, 962 F.2d 339, 340-42 (4th Cir.1992), cited

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