U.S.A. v. Trotter

• Decision Date: 06 November 2001
• Docket Number: No. 00-4185,00-4185
• Parties: (7th Cir. 2001) United States of America, Plaintiff-Appellee, v. Clarence Trotter, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1150

270 F.3d 1150 (7th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Clarence Trotter, Defendant-Appellant.

No. 00-4185

United States Court of Appeals Seventh Circuit

Argued October 2, 2001

Decided November 6, 2001

Appeal from the United States District Court for the Southern District of Illinois. No. 3:96CR30115-002--William D. Stiehl, Judge.

Before Posner, Easterbrook, and Evans, Circuit Judges.

Easterbrook, Circuit Judge.

Convicted of using unauthorized access devices, see 18 U.S.C. § 1029(a)(2), (e)(1), Clarence Trotter received a mild sentence: 5 months' imprisonment and 36 months' supervised release (5 months of which were to be spent in home confinement). He repeatedly violated the terms of home confinement by leaving without authorization, and he broke the rules of supervised release by lying to the probation office about his employment (and failing to notify the office about changes) and using marijuana. He tested positive for marijuana at least 3 times and skipped 7 scheduled drug tests. Trotter also paid only $3,800 of the $18,300 restitution that is part of his sentence--and only $80 of that sum voluntarily (the rest came from garnishing his salary). Eventually the district judge revoked his supervised release.

Under the Sentencing Guidelines, the penalty following revocation depends on the most serious violation-- for Trotter, unlawful possession of drugs. Multiple violations are not cumulative under the Guidelines' structure, U.S.S.G. § 7B1.1(b), so the district court ignored all of Trotter's other shortcomings. The Sentencing Commission has prescribed three grades of violations--A, B, and C. (Chapter 7 of the Guidelines is a Policy Statement rather than a rule, see United States v. Hill, 48 F.3d 228 (7th Cir. 1995), but a district court must start with these policies, and in Trotter's case the judge did not show any inclination to deviate from them. Thus for current purposes we treat Chapter 7 as if it were binding.)

A crime of violence, a firearms offense, or a "controlled substance offense" is a Grade A violation; any other conduct "constituting any other federal, state, or local offense punishable by a term of imprisonment exceeding one year" is a Grade B offense (U.S.S.G. § 7B1.1(a)(2)); any remaining infraction falls into Grade C. Simple possession and use of a drug, without intent to distribute, is not a "controlled substance offense" under the chain of cross-references starting with Application Note 3 to § 7B1.1 and leading to U.S.S.G. § 4B1.2(b) and its Application Note 1. Use of marijuana is not punishable by more than a year in prison under either state or federal law, making it a Grade C violation. Possession of personal-use quantities is a civil offense punishable by a fine, 21 U.S.C. § 844a, but this dispensation is not available to persons with a drug conviction, see § 844a(c). Trotter has such a conviction which moves him to the domain of 21 U.S.C. § 844(a): Simple possession by a repeat offender is punishable by up to two years' imprisonment. This led the district judge to conclude that Trotter committed a Grade B violation. Because Trotter's criminal history category is II, the table at § 7B1.4 gives a range of 6-12 months' imprisonment. The judge selected 6 months, plus an additional 30 months' supervised release. The range for a Grade C violation is 4-10 months, so Trotter could have received the same sentence no matter what. But the judge did not state on the record that the classification is irrelevant, and we must therefore tackle the merits, see United States v. Mount, 966 F.2d 262 (7th Cir. 1992); perhaps the judge would have chosen 4 months had he believed that Trotter's misconduct is Grade C rather than Grade B.

This potential 2-month difference in a term of imprisonment has spawned a cascade of legal issues that reveal disagreements within the circuit. No fewer than three intra-circuit conflicts have come to light. The first is whether expiration of the time in prison moots the choice between Grade B and Grade C. If the case is not moot, we must decide whether use of marijuana permits the district judge to infer that the user committed the crime of possessing that drug. If Trotter possessed marijuana, the final question is whether the district judge could consider his criminal history, which elevated his potential sentence from a $10,000 fine to two years' imprisonment, and thus from Grade C to Grade B. We start with mootness.

Trotter's imprisonment is over, but he remains on supervised release, a form of custody. If instead of being sentenced to 6 months Trotter had been sentenced to only 4, what would have happened to the length of the supervised release? If time removed from imprisonment were added automatically to supervised release, then nothing we do now could assist Trotter, and it might make things worse by tacking months onto the remaining term of custody. But this is not how either the supervised-release statute, 18 U.S.C. § 3583, or the Guidelines, handles matters. So far as the statute is concerned, a combination of prison and supervised release adding to 36 months is the maximum available to the judge, see § 3583(h), but not the minimum. The Guidelines do not detract from that statutory flexibility. See U.S.S.G. § 7B1.3(g)(2). The district judge could have sentenced Trotter to 4 months' imprisonment and, say, 24 months' supervised release--and maybe he would have done so had he believed that Trotter's deeds were Grade C rather than Grade B violations. We cannot be sure, of course, but Trotter is entitled to have the district judge impose a sentence under the correct legal rules, if any potential benefit could arise from the difference. This principle is the reason why, as Mount held, we consider his claims even though 6 months' imprisonment could have been meted out for a Grade C violation. Unless we are confident that Trotter cannot benefit from success on appeal, the case is not moot.

That is how things work out from the application of first principles. It is also how this court saw matters in United States v. Swigert, 18 F.3d 443 (7th Cir. 1994), and United States v. Eske, 925 F.2d 205, 206 n.2 (7th Cir. 1991). See also United States v. Verdin, 243 F.3d 1174, 1177-79 (9th Cir. 2001). Swigert relied in part on a proposition later rejected in United States v. Johnson, 529 U.S. 53 (2000): That a person held too long in prison automatically would be given credit against his term of supervised release. But Swigert does not depend wholly on that proposition; it also recognized that on remand a district judge would have discretion to shorten the term of supervised release.

United States v. Ross, 77 F.3d 1525, 1549 n.6 (7th Cir. 1996), throws a monkey wrench into this approach by holding that completion of a prison sentence while an appeal is pending does moot an appeal, despite ongoing supervised release. Ross recognized the seemingly contrary holdings in Swigert and Eske but added that the appeal is moot when it is legally impossible to shorten the term of supervised release, even if the prison sentence should have been shorter. That unexceptional proposition of law seems to entail the proposition that it is legally forbidden to shorten the period of supervised release. Sometimes that might be so; minimum terms accompany some offenses, and after Johnson a defendant who received the minimum term of supervised release has nothing further to gain with respect to supervised release from a post-hoc declaration that his imprisonment should have ended sooner. But in Ross itself the district judge had discretion to select a term of supervised release as low as 24 months, which would have meant a reduction from the term actually imposed, 36 months, just as in Swigert and Eske. (The appellant had been convicted of mail fraud and related Class D offenses, which is why the district judge possessed discretion to choose a reduced term of supervised release. See 18 U.S.C. § § 152, 3559(a); U.S.S.G. § 5D1.2(a).) Ross therefore might be understood to create an intra-circuit conflict. We can avoid that, however, by limiting Ross to the proposition it said was dispositive: if it is impossible to reduce the term of supervised release, a defendant who is already out of prison has nothing to gain from an appeal. Ross did not analyze when it is possible to reduce that term; it made an assumption on that subject, but assumptions are not holdings. Ross therefore does not preclude us from deciding that Trotter's case is live.

Next comes the question whether use of marijuana supports an inference of possession--for only possession is a criminal offense potentially supporting a Grade B violation. This question has a simple answer. Of course use may support an inference of possession. A person might test positive for marijuana if he never touched the stuff but spent a lot of time around heavy smokers and ended up with some of the drug in his lungs. This is unlikely, but possible, and a district judge therefore might treat one or even two positive tests as inadequate to prove possession of the drug. But a judge also could infer from the presence of marijuana metabolites in the blood that the user possessed that drug, if only in the process of smoking a communal joint. Trotter tested positive at least 3 times and skipped a further 7 tests, which could support a conclusion that he knew that he would have tested positive on those occasions too. That is more than enough to permit a rational trier of fact to infer that Trotter possessed marijuana. The burden of persuasion for revocation of supervised release is a preponderance of the evidence, and the finding of possession on a record such as this cannot be deemed clearly erroneous. Inferring possession of a drug from the consumption of that drug is just as sensible as inferring, from the statement "I ate a hamburger for lunch," that the person possessed the hamburger before wolfing it down. Likewise...