                United States Court of Appeals
                    FOR THE EIGHTH CIRCUIT


                         No. 97-1474


United States of America,     *
                              *
          Appellee,           *
                              * Appeal       from   the   United
States
         v.                   * District Court for the
                              * District of Minnesota.
Douglas Paul Pierce,          *
                              *
         Appellant.           *


              Submitted:    November 17, 1997

                                                          Filed:
December 24, 1997


Before BEAM, HEANEY, and JOHN R. GIBSON, Circuit Judges.


HEANEY, Circuit Judge.

    The sole issue raised on this appeal is whether the
district court was correct in its assessment that it was
required to sentence Douglas Paul Pierce to a prison term
of fourteen months when it found that he possessed a
controlled substance during his supervised release. We
hold that the district court erred and remand for
resentencing.
                           I.

    In May 1995, Pierce was sentenced to a term of
eighteen-months imprisonment and a three-year term of
supervised release.       As a standard condition of
supervised release, he was prohibited from possessing a
controlled substance and was directed to participate in
a drug treatment program. Pierce completed his prison
term and began serving his term of supervised release.
During this period, he tested positive on at least two
occasions for the use of a controlled substance. Pierce
was then arrested for violating the conditions of his
parole.    The district court conducted a revocation
hearing at which Pierce did not contest the use of drugs,
but argued that the court was not required to impose a
prison sentence for the violation.

    The following exchange occurred between counsel for
the government, the court, and Pierce’s counsel at the
hearing:

        THE COURT:   The Court is of the opinion,
    then, that the defendant admits the violation
    but contests -- or disagrees as to the
    punishment to be imposed.

        . . . .

        MR.   WILHELM   [Assistant   United   States
    Attorney]:   Well, Your Honor, as I understand
    it, the factual basis is admitted.
        As far as the disposition of this matter
    goes, as we’ve indicated previously in Court, we
    have no objection to any disposition within the
    guidelines, whatever the Court may choose to do.
    And we have no recommendation other than that.

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    THE COURT: Very well. I should advise the
defendant that if the Court does revoke the
defendant’s supervised release, it will be the
judgment of the court that testing positive for
the use of controlled substances, by doing that,
the defendant, in the Court’s view, has
“possessed,” quote-unquote, them within the
meaning of 18 United States




                       3
Code 3583(g), and in that case the revocation of
supervised release would be required.
         Does anyone have any disagreement with that?

        MR. MOHRING [Counsel for Pierce]: I think
    that is a finding that the evidence would permit
    the Court to make.     I don’t think that that
    finding is required under the law. And so, if
    the Court’s ruling is based on a view that the
    Court is required to so find, I do object. . . .

        THE COURT: As I understand your position,
    you are disagreeing with the Court in its
    application of 18 U.S.C. Section 3583(g)?

        MR. MOHRING:    I disagree with the Court’s
    application only if it’s the Court’s position
    that applying that section is required by the
    facts of this case.

        THE COURT:   It’s mandated, in the Court’s
    view.

         MR. MOHRING:     Then   I   do   object   to   that
conclusion, Judge.


(Revocation Tr. at 9-10.) Before Pierce was sentenced,
his mother, Judith Pierce, addressed the court and
suggested that imprisonment was not in his best
interests. The court responded:

        THE COURT:    I could well agree with you,
    Mrs. Pierce. . . . I must advise you, however,
    the law requires a mandatory sentence under
    these circumstances.    The question before the
    Court was whether or not it should be at the low
    range, eight months, or up towards the top range
    of fourteen months. . . .     I sympathize with


                           4
    you, but I don’t know what else I can do to be
    of help.


Id. at 21-22.




                          5
                                        II.

    It is clear that 18 U.S.C. § 3583(g) (1994) requires
a court to sentence a defendant who possessed a
controlled substance in violation of his supervised
release to a term of imprisonment.1     However, we must
consider this issue in conjunction with 18 U.S.C. §
3583(d), which was enacted at the same time as § 3583(g).
Subsection (d) provides, in relevant part:

      The   court    shall   consider    whether   the
      availability of appropriate substance abuse
      treatment programs, or an individual’s current
      or past participation in such programs, warrants
      an exception in accordance with the United
      States Sentencing Commission guidelines from the
      rule of section 3583(g) when considering any
      action against a defendant who fails a drug
      test.


18 U.S.C. § 3583(d) (1994).

    In our opinion, reading the Violent Crime Control and
Law Enforcement Act of 1994 as a whole permits a
sentencing court to choose whether to impose a program of
treatment rather than incarceration if one on probation
fails a drug test. This interpretation is supported by
the Commentary to § 7B1.4 of the United States Sentencing
Guidelines:


      1
        Section 3583(g) provides, in relevant part: “If the defendant (1) possesses a
controlled substance . . . the court shall revoke the term of supervised release and
require the defendant to serve a term of imprisonment not to exceed the maximum term
of imprisonment authorized under subsection (e)(3).” 18 U.S.C. 3583(g) (1994).
                                         6
In the case of a defendant who fails a drug
test, the court shall consider whether the
availability of appropriate substance abuse
programs, or a defendant’s current or past
participation in such programs, warrants an
exception from the requirement of mandatory
revocation and




                     7
imprisonment under 18 U.S.C. §§ 3565(b) and 3583(g).   18
U.S.C. §§ 3563(a), 3583(d).

U.S. Sentencing Guidelines Manual § 7B1.4, comment. (n.6)
(1997).

    The United States explains the choice this way: If
the court finds an offender to be in illegal possession
of a controlled substance, imprisonment is mandated. If,
however, the court simply finds that one on probation
failed a drug test, then the court is free to require
further participation in a substance-abuse program. To
quote the United States directly: “Although a court may
find possession based on a positive drug test (as it did
in this case), it is not required to do so and the court
may provide for treatment without revoking the offenders’
[sic] release.”    (Gov’t Br. at 10.)    We believe this
language is clear and to the point. The district court
had the discretion to provide for treatment rather than
imprisonment.   We are not convinced that the district
court recognized that it had these alternatives, thus we
remand to the district court to determine the proper
sentence it desires to impose.

    A true copy.

        Attest.

             CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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