April 13, 1993    UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                     

No. 91-1829

                        UNITED STATES,

                          Appellee,

                              v.

          GLENN DEREK DOW, a/k/a GLENN DERRICK DOW,

                    Defendant, Appellant.

                                     

                         ERRATA SHEET

   The  opinion of  this  court issued  on  April 5,  1993,  is

amended as follows:

   On page 5, line 7:  "ingenuous" should read "ingenious".

April 7, 1993

                UNITED STATES COURT OF APPEALS

                    FOR THE FIRST CIRCUIT

                                         

No. 91-1829

                        UNITED STATES,

                          Appellee,

                              v.

          GLENN DEREK DOW, a/k/a GLENN DERRICK DOW,

                    Defendant, Appellant.

                                         

                         ERRATA SHEET

The  opinion of  Court  issued on  April 5,  1993,  is  amended as

follows:

On  page  5, the  first  line  delete the  "47"  included  in  the

citation " 473583".

April 5, 1993

                UNITED STATES COURT OF APPEALS

                    FOR THE FIRST CIRCUIT

                                         

No. 91-1829

                        UNITED STATES,

                          Appellee,

                              v.

          GLENN DEREK DOW, a/k/a GLENN DERRICK DOW,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MAINE

           [Hon. Gene Carter, U.S. District Judge]
                                                 

                                         

                            Before

                   Torruella, Circuit Judge,
                                           

          Brown* and Bownes, Senior Circuit Judges.
                                                  

                                         

Roger A. Cox, by Appointment of the Court, for appellant.
            

Margaret  D. McGaughey,  Assistant  United States  Attorney,  with
                      

whom Richard  S. Cohen, United  States Attorney, Jonathan  R. Chapman,
                                                                 

Assistant  United States  Attorney, and  Raymond C.  Hurley, Assistant
                                                       

United States Attorney, were on brief, for appellee.

                                         

                        April 5, 1993

                                         

                

*Of the Fifth Circuit, sitting by designation.  Judge Brown heard oral

argument  in this matter, and participated  in the semble, but did not

participate  in the drafting or  the issuance of  the panel's opinion.

The remaining two  panelists therefore issue this  opinion pursuant to

28 U.S.C.   46(d).

          BOWNES, Senior  Circuit Judge.   The issue  in this
          BOWNES, Senior  Circuit Judge.
                                       

case  is  whether  the  district court  erred  in  sentencing

defendant for a  violation of  one of the  conditions of  his

supervised release under 18 U.S.C.   3583(g), which provides:

          (g)         Possession     of    controlled
        substances. If the defendant is found  by the
        court to be in the possession of a controlled
        substance, the court shall terminate the term
        of   supervised   release  and   require  the
        defendant to  serve in  prison not less  than
        one-third of the term of supervised release.

                              I.
                       Factual Context
                                      

        Defendant-appellant Glenn Derek  Dow was sentenced on

drug charges in April of  1989 to imprisonment for a  term of

sixteen  months  to  be  followed   by  a  six-year  term  of

supervised  release.   One  of the  conditions of  supervised

release  was  that Dow  "shall  not  purchase, possess,  use,

distribute  or administer  any  narcotic or  other controlled

substance, except as prescribed by a physician."

        In  June  of  1991,   the  probation  office   sought

revocation of  Dow's supervised release because  eleven urine

tests  proved positive  for the  use of  marijuana.1   At the

revocation  hearing before  the  district court  on July  19,

1991,  Dow was  represented by  counsel.   After being  fully

                    

1 The probation office alleged two other violations, but they
are not issues on this appeal.

                             -6-

advised of his  rights Dow  pled guilty to  violation of  the

supervised release condition.   His counsel advised the court

that she  concurred in defendant's decision  to plead guilty.

No  reservations or  qualifications were made  a part  of the

plea.

        At  the subsequent  sentencing hearing,  the district

court found and ruled as follows:

           The  Court further  finds on  the evidence
        that this defendant has been in possession of
        a  controlled  substance, to  wit, marijuana,
        within  the  meaning  of  18  U.S.C.  section
        3583(g)  during  the  period   of  supervised
        release.

           The  Court  concludes  that  defendant  is
        subject to  a minimum sentence of  2 years of
        incarceration, see 18 U.S.C. Section 3583(g),
        and  a maximum  term of  three years,  see 18
        U.S.C. 3583(e)(3).

           The  Court  concludes that  the applicable
        guideline   range    under   the   applicable
        guideline  pursuant to section  7B1.4(a) is 4
        to 10 months.

           The  Court  further  concludes   that  the
        statutory command of 3583(g) controls in this
        case   and  mandates   a   minimum  term   of
        incarceration of two years.

                             II.
                          Discussion
                                    

        Dow's  only contention on  appeal is that  the use or

consumption  of  marijuana,  evidenced solely  by  laboratory

analysis of urine samples, did not constitute "possession" of

marijuana  within the  meaning of  18 U.S.C.    3583(g).   We

point out first that Dow  pled guilty, without reservation or

                             -7-

qualification,  to violating his supervised release condition

that  he "shall  not  purchase, possess,  use, distribute  or

administer any narcotic or other  controlled substance. . . .

"      In  light of  his guilty  plea,  which was  voluntary,

knowing and made  with advice of counsel,  we do not  see how

Dow can  now deny  that he  was not "in  the possession  of a

controlled  substance," as stated in   3583(g).  Dow did not,

as his brief implies, limit his plea to accepting the results

of  the laboratory analyses of his urine samples.  His guilty

plea  admitted  the  possession  and  use of  a  narcotic  or

controlled  substance.   That  is sufficient  to trigger  the

sentencing mandate of 18 U.S.C.   3583(g).

        We  proceed, nonetheless,  to  a  full discussion  of

defendant's argument.   Dow first points  out that Sentencing

Guideline   7B1.4 prescribes a sentence of four to ten months

for  an offender such as  himself, who has  committed grade C

violations  of  his supervised  release  and  has a  criminal

history category of II.  This is, of course, shorter than the

two-year sentence mandated by  18 U.S.C.   3583(g) (one-third

of Dow's supervised release term of six years).

        Defendant's  main  argument is  that  a  study of  18

U.S.C.    3583(d)  and  18  U.S.C.    3563(b)(8)  shows  that

Congress made a sharp  distinction between use or consumption

                             -8-

of  a drug and possession of that  drug.2  We find nothing in

the wording of    3583(d) or   3563(b)(8) that  even suggests

such a distinction.  Dow attempts to buttress his argument by

invoking  "policy  reasoning":    a  defendant  possessing  a

controlled substance  can cause  considerable social harm  by

selling or otherwise distributing drugs in her/his possession

to others; "use"  alone, however, limits  the direct harm  to

the defendant alone.   This is an ingenious argument,  but it

is spun out of whole cloth.  There is  no basis for it in the

wording of the statute or its legislative history.  Nor do we

think  that the Senate's rejection  of a proposed  draft of  

3583(g), which  would have  required a  defendant to  serve a

prison  term  of  not less  than  one-third  of  the term  of

supervised  release  if he/she  tested  positive  for use  of

                    

2 18 U.S.C.   3583(d) provides in pertinent part:

           (d)  Conditions of supervised release. The
           (d)  Conditions of supervised release.
        court  shall order, as  an explicit condition
        of supervised release, that the defendant not
        commit another Federal, State, or local crime
        during the term  of supervision and  that the
        defendant  not   possess  illegal  controlled
        substances.

  Under 18 U.S.C.    3563(b)(8), a court may, as  a condition
of sentence, order a defendant to:

           (8)    refrain   from  excessive  use   of
        alcohol,  or any  use of  a narcotic  drug or
        other  controlled  substance,  as defined  in
        section  102 of the Controlled Substances Act
        (21 U.S.C. 802), without  a prescription by a
        licensed medical practitioner;

                             -9-

controlled  substances  after  three  separate  urine  tests,

affords any  footing for  appellant's argument.   His "policy

reasoning"  should be directed to  the Congress.   We find no

ambiguity in the statute and thus reject defendant's plea for

application of the rule of lenity.

        We  do not  stand  alone in  our  rejection of  Dow's

argument.  His  contention has been  rejected by all  federal

courts  of appeal that have considered it.  See United States
                                                             

v. Baclaan,  948 F.2d  628, 630  (9th  Cir. 1991)  (upholding
          

district  court's  finding  that  defendant  possessed  drugs

within  meaning  of  section  3583(g)  based  on  defendant's

admission of use and  four positive laboratory test results);

United States v.  Blackston, 940 F.2d  877 (3rd Cir.),  cert.
                                                             

denied, 112 S. Ct. 611  (1991) (defendant's admission of drug
      

use and three  positive urine samples constituted  possession

for  purposes  of  section  3583(g))  (includes   a  thorough

examination of section 3583(g), its legislative history,  and

the  treatment  of  the  attendant  use/possession  issue  in

federal and state courts); United States  v. Oliver, 931 F.2d
                                                   

463, 465  (8th Cir. 1991) (district  court properly sentenced

defendant  under section  3583(g)  upon a  finding, based  on

numerous positive test  results, that  defendant possessed  a

controlled substance);  United  States v.  Kindred, 918  F.2d
                                                  

485,  487  n.3  (5th  Cir. 1990)  (in  upholding  defendant's

supervised  release revocation  and sentencing  under section

                             -10-

3583(g) without direct evidence of  physical possession court

assumed  "[k]nowing use  of  drugs is  akin to  possession");

United States v.  Dillard, 910  F.2d 461, 464  n.3 (7th  Cir.
                         

1990)   ("Knowing  use  of  cocaine,  which  [the  defendant]

admitted  to   here,  requires   possession,  even  if   only

momentarily;" affirmed revocation of supervised release based

in part  upon defendant's  admission of use  and confirmatory

laboratory test results).

        Finally, there can be  no doubt that when there  is a

conflict between  what the sentencing  guidelines provide and

what a statute  requires, the statute controls.   We recently

joined  every   circuit  that   addressed  this  matter   "in

concluding that the sentencing  guidelines adopt, rather than

replace,  a statutory  minimum sentence."   United  States v.
                                                          

Rodriguez, 938  F.2d 319, 320  (1st Cir. 1991)  (citing cases
         

from the circuits).   See  also United States  v. Clark,  956
                                                       

F.2d 1176,  1178  (D.C. Cir.  1992) ("the  Guidelines do  not

apply without the  statutory fetter [congressionally mandated

minimum sentences]").  See also U.S.S.G.   5G1.1.
                               

        The sentence of the district court is Affirmed.
                                              Affirmed.
                                                       

                             -11-
