U.S. v. Gordon

• Decision Date: 30 April 1992
• Docket Number: No. 91-3605,91-3605
• Citation: 961 F.2d 426
• Parties: UNITED STATES of America v. Cheryl GORDON, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 426

961 F.2d 426

UNITED STATES of America v. Cheryl GORDON, Appellant.

No. 91-3605.

United States Court of Appeals, Third Circuit.

Argued Feb. 10, 1992.

Decided April 13, 1992.

As Amended April 30, 1992.

K. Kay Shearin (argued), Wilmington, Del., for appellant.

Mary M. McDonough (argued), Asst. U.S. Atty., Wilmington, Del., for appellee.

Before: GREENBERG and COWEN, Circuit Judges, and GREEN, District Judge. ^*

OPINION OF THE COURT

COWEN, Circuit Judge.

Under 18 U.S.C. § 3565(a) (1988), a probationer who is found in possession of a controlled substance will be resentenced to "not less than one-third of the original sentence." This appeal requires us to determine whether "original sentence" refers to the original period of incarceration to which the defendant could have been sentenced or the term of probation actually imposed. Because we hold it to be the former, we will vacate the sentence imposed by the district court and remand for resentencing.

I.

Cheryl Gordon pled guilty in May 1989 to violating 18 U.S.C. § 1703 (1988) by removing a $596.14 check from the mail while working for the United States Postal Service. Under the Sentencing Guidelines then in effect, Gordon could have received a sentence of zero to four months imprisonment, based on a total offense level of four within criminal history category I. U.S.S.G. Ch. 5, Pt. A. ¹ Instead, Gordon was sentenced to three years probation, with no suspended sentence of imprisonment.

In June 1990, the district court found Gordon guilty of violating the terms of probation, but continued probation on the condition that Gordon complete an in-house drug rehabilitation program. Although Gordon completed the drug program, she failed to report to the probation office for required urinalysis on eighteen occasions. Two of the urine specimens which she did submit tested positive for cocaine metabolite. In August 1991, the district court revoked Gordon's probation and resentenced her to one year imprisonment, noting:

I'm going to sentence you for your violation for being in possession of a controlled substance and I'm going to revoke the sentence of probation that was imposed by Judge Roth and sentence you to a period not less than one-third of your original sentence, which was three years. In effect, I'm going to imprison you for one year, basically to save your life.

App. at 62.

The district court's resentencing decision appears to be based on 18 U.S.C. § 3565(a) which specifies:

If the defendant violates a condition of probation at any time prior to the expiration or termination of the term of probation, the court may, after a hearing pursuant to Rule 32.1 of the Federal Rules of Criminal Procedure, and after considering the factors set forth in section 3553(a) to the extent that they are applicable--

(1) continue him on probation, with or without extending the term or modifying or enlarging the conditions; or

(2) revoke the sentence of probation and impose any other sentence that was available under subchapter A at the time of the initial sentencing.

Notwithstanding any other provision of this section, if a defendant is found by the court to be in possession of a controlled substance, thereby violating the condition imposed by section 3563(a)(3), the court shall revoke the sentence of probation and sentence the defendant to not less than one-third of the original sentence.

(emphasis added). The district court interpreted the term "original sentence" as referring to the three years probation imposed for the initial offense, rather than the period of incarceration originally available, which was zero to four months imprisonment. Thus, the court reasoned that one-third of three years probation was one year imprisonment. Gordon appeals the revocation of probation and imposition of a custodial sentence. We have jurisdiction under 28 U.S.C. § 1291 (1988). Our review of the district court's interpretation of federal law is plenary. United States v. Donley, 878 F.2d 735, 739 (3d Cir.1989), cert. denied, 494 U.S. 1058, 110 S.Ct. 1528, 108 L.Ed.2d 767 (1990).

II.

A.

At the outset, Gordon contends that her drug use should not have been considered by the district court at the August 1991 hearing, since the probation violation petition did not formally charge her with use or possession of a controlled substance. During the hearing, the district court prohibited the government from amending the petition to include such a charge. However, the court allowed the two positive urine tests and Gordon's admitted drug use to "be taken as evidence" of a probation violation, although the court precluded consideration of the drug use itself. App. at 18. We believe that the district court committed no error as to this issue.

This court has stated that drug use indicated by urinalysis is only circumstantial evidence of drug possession. United States v. Blackston, 940 F.2d 877, 886 (3d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 611, 116 L.Ed.2d 634 (1991). It is worth noting that Gordon did not challenge the positive results of the urinalysis. In fact, she admitted at the hearing that she had used drugs while on probation, constituting a direct violation of the conditions of her probation. Moreover, 18 U.S.C. § 3565(a) does not require that a defendant be formally charged or convicted of drug possession for the conduct to be considered in probation revocation or resentencing. The provision applies whenever "a defendant is found by the court to be in possession of a controlled substance." (emphasis added). This language might lead to seemingly harsh results, but it is consistent with the broad discretion which is traditionally given to district courts to revoke probation when probation conditions are violated. United States v. Morin, 889 F.2d 328, 331 (1st Cir.1989); United States v. Holland, 874 F.2d 1470, 1473 (11th Cir.1989); United States v. Rife, 835 F.2d 154, 156 (7th Cir.1987); United States v. Simmons, 812 F.2d 561, 565 (9th Cir.1987); United States v. Babich, 785 F.2d 415, 418 (3d Cir.), cert. denied, 479 U.S. 833, 107 S.Ct. 123, 93 L.Ed.2d 69 (1986); United States v. Young, 756 F.2d 64, 65 (8th Cir.1985). Indeed, a court can revoke probation when it is reasonably satisfied that the probation conditions have been violated, without the government being required to present proof beyond a reasonable doubt that the defendant committed the alleged acts. United States v. Taylor, 931 F.2d 842, 848 (11th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1191, 117 L.Ed.2d 433 (1992); United States v. Lettieri, 910 F.2d 1067, 1068 (2d Cir.1990); United States v. Czajak, 909 F.2d 20, 22 (1st Cir.1990); Babich, 785 F.2d at 418. Here the district court was correct in considering Gordon's positive drug tests as evidence of a probation violation and resentencing Gordon based on her drug use.

Our review of the record also convinces us that Gordon had adequate pre-hearing notice that her drug possession would be considered by the district court. The written probation violation petition satisfied the notice requirement of Rule 32.1(a)(2)(A) & (B) of the Federal Rules of Criminal Procedure. The petition not only detailed the eighteen occasions ² on which Gordon failed to appear for required urinalysis but also cited the two positive urine specimens which she submitted on March 13 and March 27, 1991. From this written petition, Gordon should have anticipated that she would be questioned about her drug possession at the probation violation hearing. We have no doubt that Gordon was prepared to address the issue of drug possession, since her counsel even attempted to use the drug issue to justify a more lenient sentence for Gordon. ³

Therefore, we hold that the district court did not err in considering Gordon's drug possession when it revoked her probation and resentenced her to prison. Having decided that the drug possession could be considered in resentencing, we must now turn to the meaning of the term "original sentence" in 18 U.S.C. § 3565(a).

B.

In arriving at the one year sentence, the district court relied on the final paragraph of section 3565(a) ("the 1988 drug amendment"), which was enacted as part of the Anti-Drug Abuse Act of 1988, Pub L. No. 100-690, § 7303(a)(2), 102 Stat. 4181, 4464 (1988). The 1988 drug amendment mandates that a probationer found in possession of a controlled substance will be resentenced to "not less than one-third of the original sentence." 18 U.S.C. § 3565(a). At issue in this case is not only the meaning of this language but also its relation to other statutory provisions which govern resentencing after probation is revoked.

As we explained in United States v. Boyd, 961 F.2d 434 (3d Cir.1992), there are three different standards for imposing a sentence for a probation violation. The first involves 18 U.S.C. § 3565(a)(2), which states that a court may revoke probation and "impose any other sentence that was available ... at the time of the initial sentencing." The second involves the 1988 drug amendment to section 3565(a), on which the district court in this case relied in imposing a one year sentence. The third standard, which is not involved in this case, is contained in the probation revocation table that is set forth in section 7B1.4(a) of the Sentencing Guidelines.

In the case presently before this court, we are concerned with the apparent tension between section 3565(a)(2) and the 1988 drug amendment, while in Boyd we were concerned with the conflict between section 3565(a)(2) and the probation revocation table in the Guidelines. In Boyd, we held that following a probation revocation, section 3565(a)(2) only allows the imposition of a prison sentence which could have been imposed for the original crime at the time of the initial sentencing. 961 F.2d at 437. In the case before us, Gordon could have been sentenced originally to zero to four months imprisonment for violating 18 U.S.C. § 1703. We must determine whether the 1988 drug amen...