U.S. v. Courtney, 91-8492

• Decision Date: 25 November 1992
• Docket Number: No. 91-8492,91-8492
• Citation: 979 F.2d 45
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dane Clark COURTNEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 45

979 F.2d 45

UNITED STATES of America, Plaintiff-Appellee, v. Dane Clark COURTNEY, Defendant-Appellant.

No. 91-8492.

United States Court of Appeals Fifth Circuit.

Nov. 25, 1992.

Robert A. Canonico, Waco, Tex. (Court-appointed), for defendant-appellant.

Richard L. Durbin, Jr., Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before BROWN, GARWOOD, and DEMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

The district court, by order dated August 16, 1991, revoked appellant Dane Clark Courtney's six-year term of supervised release for possession of cocaine and, pursuant to 18 U.S.C. § 3583(e) & (g), required him to serve twenty-four months imprisonment, followed by three years of supervised release. He brings this appeal, challenging his sentencing and the determination that he possessed cocaine. We vacate and remand.

Facts and Proceedings Below

On July 11, 1989, Dane Clark Courtney (Courtney) was indicted for distributing "crack" cocaine on a playground on June 27, 1989, contrary to 21 U.S.C. §§ 841(a)(1) & 845a (now § 860). Courtney pleaded guilty to the charged offense on September 25, 1989. During his presentence interview, Courtney admitted that he had been using "crack" for approximately one and one-half years, and that he progressed from using "crack" once a day to a maximum of four times a day until the day of his arrest. Dr. Steven L. Mark evaluated Courtney and gave his opinion that Courtney was dependent on the drug at the time of the offense. On November 17, 1989, Courtney was sentenced by the district court to twenty-seven months confinement followed by six years of supervised release. On May 1, 1991, he began his supervised release at a halfway house.

Courtney began his visits with his probation officer, LaDonna Jackson (Jackson) on June 27, 1991. On his next two visits on July 1, 1991, and July 9, 1991, he submitted urine samples which tested positive for cocaine metabolite. Courtney denied to Jackson using drugs on either occasion and explained to her that the drugs might have entered his system by "kissing a girl," and that he had a number of girlfriends.

On July 30, 1991, a motion was filed to revoke Courtney's release for having "used and possessed cocaine on or about July 1, 1991 and July 9, 1991." A hearing on this motion was held before the sentencing district judge on August 15, 1991. At the hearing, Courtney, represented by counsel, pleaded "not true." Jackson testified to the taking of the samples and Courtney's statements to her regarding the results as above related. She explained that the laboratory performed the tests pursuant to a contract to do such testing for United States Probation offices. On cross-examination, she stated that in her experience and training, an illegal drug, such as cocaine, will remain in an individual's system for a maximum of approximately seventy-two hours. Jackson also testified on cross-examination that the laboratory analysis did not indicate a specific quantity or amount of cocaine in the urine samples, but that the laboratory will not issue a positive result unless the sample reveals at least 300 nanograms per milliliter of cocaine metabolite. There was no objection to any of Jackson's testimony.

Courtney testified that after he left the halfway house, he lived with a woman who smoked "crack" cocaine on at least three different occasions while they were in bed together. Courtney acknowledged that Jackson had warned him against using, or associating with anyone that used controlled substances, but that he did not take the warning seriously. He did not dispute the taking of the urine samples. He also admitted that prior to his conviction he smoked a large amount of cocaine, and that he associated with other "crack" smokers.

The sentencing district court found that Courtney had violated the terms of his supervised release by using and possessing cocaine. In making this finding the district court stated:

"I have heard evidence in a number of other cases that the reason this testing company will return a negative result for less than 300 nanograms per milliliter of cocaine is because all of the testing that has been done indicates that the maximum amount that can be found or ingested into a human system passively is 100 nanograms or less. So anything less than three times the maximum that could be ingested passively they return as a negative result to eliminate that possibility. Therefore, the Court would have no choice, at least in my view, of finding that Mr. Courtney has violated the terms of his supervised release by using and possessing cocaine, and that his supervised release will be revoked."

The district court then revoked Courtney's supervised release and required him to serve twenty-four months confinement to be followed by three years supervised release. The district court based this disposition on 18 U.S.C. § 3583(g) which mandates that the supervised release be terminated and the defendant be required to serve in prison at least one-third of the original supervised release term where he is found to have been in possession of a controlled substance. ¹

Discussion

Courtney raises two basic issues on appeal. First, he complains that the district court erred by assuming once it established use from the urinalysis report, then it must find possession. Second, he contends that the district court improperly ordered him to be both confined and subject to a following term of supervised release because under 18 U.S.C. § 3583(e) & (g) the district court is prohibited from ordering both a period of imprisonment and a period of supervised release after revoking the original term of supervised release.

I. Use and possession

The district court felt compelled to apply section 3583(g) because its determination based on the laboratory analysis that Courtney used "crack" cocaine ineluctably led to the conclusion that he possessed the substance. Courtney complains that he need not be found to be in possession of an illegal substance based on the mere evidence of a positive drug test. He argues that a positive result might be evidence of use but one could not conclude that this evidence of use required a finding of possession. Therefore, the district court had the choice of only finding use and applying section 3583(e) ² while avoiding the requirements of section 3583(g). In determining Courtney's complaints, we review the district court's interpretation of the statutes de novo. United States v. Headrick, 963 F.2d 777, 779 (5th Cir.1992).

Courtney relies on United States v. Blackston, 940 F.2d 877 (3d Cir.1991), for the proposition that there exists a distinction between use and possession, and that although evidence of the former can serve as a basis for finding the latter, the district court is not required to conclude that the use constituted possession.

The Blackston court found such a distinction based on the overall structure of section 3583. This section requires as a condition of supervised release "that the defendant not possess illegal controlled substances." 18 U.S.C. § 3583(d). This section also makes reference to 18 U.S.C. § 3563(b)(8) which authorizes courts to order as a condition of supervised release that the defendant "refrain from ... any use of a narcotic drug or other controlled substance ... without a prescription by a licensed medical practitioner." We disagree that these two supervised release conditions create a meaningful distinction for purposes of § 3583(e) & (g) between use and possession of a controlled substance.

As the Blackston court notes, possession, as used in criminal offense statutes, has a settled meaning of "actual physical control or of the power and the intent to exercise dominion or control." Id. at 883. It is further settled that in this context possession must be knowing. See FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS, CRIMINAL CASES, INSTRUCTION NO. 1.31 (West 1990). The Blackston court does not define use but merely states that use and possession are somehow different. Id. at 884. The court exhaustively reviews the legislative history behind section 3583(g) and finds it inconclusive on this issue. Id. at 884-86. In addition, the court acknowledges that other federal circuits have uniformly found use to necessarily require possession. Id. at 887-88. See, United States v. Dillard, 910 F.2d 461, 464 (7th Cir.1990); United States v. Graves, 914 F.2d 159, 161 (8th Cir.1990); United States v. Kindred, 918 F.2d 485, 487 n. 3 (5th Cir.1990); United States v. Ramos-Santiago, 925 F.2d 15, 16 (1st Cir.1991).

The act of simple knowing possession of a controlled substance is a federal criminal offense. 21 U.S.C. § 844. ³ There is no federal statutory provision which in terms criminalizes "use" or "consumption" of a controlled substance. However, it is not a defense to an otherwise established simple possession offense that the defendant did not possess the substance because he merely used or consumed it. United States v. Schocket, 753 F.2d 336, 340 (4th Cir.1985) (defendant had "possession over the cocaine since he had the ability to use it, remove it, and therefore to exercise dominion and control over the substance") (italics added). Had Congress chosen to separately criminalize use and simple possession, then the argument would be stronger that use is separately defined from simple possession with separate legal elements. But, under the present statutory scheme for criminal offenses, use is subsumed within possession.

This conclusion would still exclude passive inhalation from both possession and use. Possession requires the knowing exercise of dominion or control. Similarly, in a sentencing or revocation context it is clear that "use" requires knowing and voluntary ingestion. But once the court finds a substance has been voluntarily and knowingly ingested, then, at least in almost...