U.S. v. Blackston
| Decision Date | 29 July 1991 |
| Docket Number | No. 90-3750,90-3750 |
| Citation | 940 F.2d 877 |
| Parties | UNITED STATES of America v. Theophilus BLACKSTON, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Raymond M. Radulski (argued), Wilmington, Del., for appellant.
William C. Carpenter, Jr., U.S. Atty., Thomas V. McDonough (argued), Asst. U.S. Atty., Wilmington, Del., for appellee.
Before BECKER, NYGAARD, Circuit Judges, and GREEN, District Judge. *
This is an appeal by defendant Theophilus Blackston from an order of the district court for the District of Delaware revoking a term of supervised release and imposing a sentence of three years imprisonment. The revocation was predicated on evidence that Blackston, shortly after his release from prison, furnished three urine specimens to his probation officer that tested positive for cocaine, and subsequently admitted to using cocaine on three occasions since his release. Concluding that Blackston had violated a condition of his supervised release, the district court next determined the appropriate sentence under 18 U.S.C. Sec. 3583(g) and the United States Sentencing Commission's Chapter 7 policy statements for violations of supervised release (the "Chapter 7 policy statements"). The court "rejected" the four-to ten-month sentencing range prescribed by the Chapter 7 policy statements on the ground that Blackston had "possessed" cocaine, and that the two-year mandatory minimum set forth in section 3583(g) therefore applied. Finding Blackston's violation particularly egregious, the court imposed the maximum sentence permitted under section 3583(e)(3), three years.
The principal issue raised on appeal is whether, as Blackston asserts, the district court erred in holding that the evidence of his "use" of cocaine was sufficient to establish circumstantially "possession" for purposes of section 3583(g). For analytic clarity, we will split this issue into its legal and factual components. The legal question--whether section 3583(g) forecloses resort to evidence of drug use to prove circumstantially prior possession--is exceedingly close. We nonetheless conclude that in light of (1) the lack of a prohibition against considering such evidence in section 3583(g) or its legislative history; (2) the clear relevance of such evidence to a finding of possession; (3) the precedential weight of the prevailing federal and state jurisprudence; and (4) the language of Application Note 5 to Guidelines Sec. 7B1.4, the district court may base a finding of "possession" on evidence of "use." We emphasize however, that this decision should not be read as requiring revocation of supervised release every time a defendant tests positive for drug use. Instead, the supervised release system, as per Congress's intent, remains flexible. The probation officer still enjoys discretion in deciding whether to commence revocation proceedings, and the district court retains latitude in making the factual finding under section 3583(g) that the defendant "possessed a controlled substance."
By contrast, the factual question at bar--whether three positive urinalyses plus admitted drug use is sufficient to establish "possession" by a preponderance of the evidence--is relatively straightforward. After reviewing the record, we are satisfied that the district court did not commit clear error in finding that it is "more likely than not" that the defendant "possessed" cocaine prior to ingesting it. We further note that, because the defendant admits to using drugs voluntarily, there is no allegation that the cocaine was administered against his will or by trick. For the foregoing reasons, and because the court's sentence was not "plainly unreasonable," 18 U.S.C. Sec. 3742(e)(4), the order of the district court revoking supervised release and imposing a three-year prison sentence will be affirmed.
On September 29, 1989, Blackston pleaded guilty to four counts of a ten-count indictment charging him with distribution of cocaine within 1000 feet of a public elementary school, in violation of 21 U.S.C. Sec. 845a. He thereafter was sentenced to a sixteen-month term of imprisonment to be followed by a six-year term of supervised release. The district court imposed the fourteen standard conditions on the term of supervised release, including the requirement ("Condition # 8") that Blackston "shall not purchase, possess, use, distribute, or administer any narcotic or other controlled substance."
Blackston was released from prison on September 7, 1990, and commenced his supervised release term. His performance, however, proved less than exemplary. According to the averments of his probation officer in the petition to revoke supervised release: (1) three consecutive urine specimens, submitted by Blackston on September 20th, September 27th, and October 4th respectively, tested positive for cocaine metabolites; (2) Blackston admitted on October 4th to using cocaine on three occasions since his release from prison; and (3) Blackston failed to submit a urine specimen for testing during the week of October 8th. Based on these allegations, the probation officer asked the district court to issue a warrant for Blackston to determine whether he had violated Condition # 8 of his supervised release. The district court issued the requested warrant.
On November 1, 1990, the district court held a hearing on this charged violation. Because Blackston admitted to the probation officer's allegations (i.e., his submission of three positive urine samples and his confession to use of cocaine on three occasions), the only disputed issues at the hearing were whether his supervised release should be revoked, and, in the event that it was, what the appropriate sentence should be. Blackston contended that, if the court revoked his supervised release, the appropriate sentence should be four to ten months, as prescribed by section 7B1.4(a) of the Chapter 7 policy statements, which in fact became effective on the sentencing date. 1 The government, however, argued that by statute, 18 U.S.C. Sec. 3583(g), the district court was required to impose at least a two-year term of imprisonment, 2 and that this mandatory minimum prevailed over the sentence recommended by the Chapter 7 policy statements. 3 Noting that Blackston had proven himself unamenable to treatment, 4 the government recommended that the court impose the three-year statutory maximum for violation of supervised release, 18 U.S.C. Sec. 3583(e)(3). 5
At the conclusion of the revocation hearing, the district court found that Blackston had violated Condition # 8 of his supervised release. The court "rejected" the four- to ten-month sentencing range prescribed by the Chapter 7 policy statements, concluding that the mandatory minimum of section 3583(g) applied because Blackston had "possessed" cocaine:
the presence of cocaine in [Blackston's] urine as evidenced by the urinalysis constitutes possession as effectively as proven otherwise. Certainly it is circumstantial evidence and certainly for purposes of this hearing I find it has been established by a preponderance of the evidence.
(Emphasis added). This finding, the district court stated, required it to sentence Blackston to a minimum term of two years imprisonment--irrespective of the sentencing range recommended by the Chapter 7 policy statements. The court noted additionally that it had the power to sentence Blackston to a maximum term of three years imprisonment under section 3583(e)(3).
Based on the foregoing, the district court "revoked in its entirety" Blackston's original sentence and substituted in its stead a term of three years imprisonment. In opting for a sentence at the very top of the permissible statutory range, the district court commented:
I put you on supervised release thinking that you would do better, you didn't. You ignored that trust. For that violation of trust you are going to go back to jail. And secondly, I want the message to go out to your friends in Middletown, your family and friends in Middletown that this kind of activity is going to be dealt with swiftly and surely and directly, and for those people who become involved in drugs, they risk going to jail for a long period of time.
Even if you get supervised release there's a long rope that will reach out for a long period of time so you can be dragged in here to account for your activities.
The district court also stated that Blackston remained obligated to pay the $250 special assessment and the $160 restitution that had been imposed as part of his original sentence. 6 This appeal followed, over which we have jurisdiction pursuant to 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742(a).
Blackston raises essentially three challenges on appeal. He begins by contending that the district court erred in revoking "in its entirety" his prior sentence, as opposed to revoking his term of supervised release. Next he asserts that the district court erred in holding that evidence of his "use" of cocaine was sufficient circumstantial evidence to establish "possession of a controlled substance" for purposes of section 3583(g). Lastly, Blackston argues that the district court improperly ignored the Chapter 7 policy statements in sentencing him to three years imprisonment, the statutory maximum under section 3583(e)(3), instead of the two-year mandatory minimum under section 3583(g). We will address each of these contentions in turn.
As noted above, the district court stated that it was revoking Blackston's original sentence in its entirety and imposing a new sentence. If that is what the district court in fact did, it committed legal error, as the government essentially concedes. Section 3583(e)(3) of Title 18 of the United States Code states that a court may
revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for...
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