In the
United States Court of Appeals
For the Seventh Circuit

No. 00-4185

United States of America,

Plaintiff-Appellee,

v.

Clarence Trotter,

Defendant-Appellant.

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

Argued October 2, 2001--Decided November 6, 2001


  Before Posner, Easterbrook, and Evans,
Circuit Judges.

  Easterbrook, Circuit Judge. Convicted of
using unauthorized access devices, see 18
U.S.C. sec.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.
sec.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.
sec.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 sec.7B1.1 and
leading to U.S.S.G. sec.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.
sec.844a, but this dispensation is not
available to persons with a drug
conviction, see sec.844a(c). Trotter has
such a conviction, which moves him to the
domain of 21 U.S.C. sec.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 sec.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.
sec.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
sec.3583(h), but not the minimum. The
Guidelines do not detract from that
statutory flexibility. See U.S.S.G.
sec.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 re
jected 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. sec.sec. 152, 3559(a); U.S.S.G.
sec.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 judges and
juries may infer that someone who robbed
a bank also possessed the loot. No
surprise, then, that we held in United
States v. Young, 41 F.3d 1184, 1185 (7th
Cir. 1994), that use of a drug implies
its possession. (Indeed, Young suggested
that use compels an inference of
possession, a suggestion that may be
overboard for a single positive drug
test.) Every other court that has
considered this question has come to the
same conclusion. See, e.g., United States
v. Dow, 990 F.2d 22, 24 (1st Cir. 1993);
United States v. Blackston, 940 F.2d 877,
878 (3d Cir. 1991); United States v.
Clark, 30 F.3d 23, 25 (4th Cir. 1994);
United States v. Courtney, 979 F.2d 45,
49 (5th Cir. 1992); United States v.
Crace, 207 F.3d 833, 835-37 (6th Cir.
2000); United States v. Baclaan, 948 F.2d
628, 630 (9th Cir. 1991); United States
v. Rockwell, 984 F.2d 1112, 1114 (10th
Cir. 1993); United States v. Almand, 992
F.2d 316, 318 (11th Cir. 1993).

  As we said, the question whether use of
a drug may support an inference of its
possession has a simple answer-- "yes,"
according to Young and eight other
circuits. Unfortunately, a different
panel of this court gave the answer "no"
in United States v. Wright, 92 F.3d 502
(7th Cir. 1996). Without citing Young or
the decisions in other circuits, the
panel in Wright opined that "testing
positive for drug use is not an
independent crime; it is only a violation
of the terms of . . . supervised release.
We note . . . that these kinds of
violations are classified as Grade C
under sec.7B1.1(a)(3)." 92 F.3d at 506.
Wright may have meant to say no more than
that if the district judge declines to
infer possession from use, then no
"independent crime" has been committed.
But the flat assertion (which appears
twice in Wright) that persons who test
positive for drug use "are classified as
Grade C" violators implies that it would
be improper to infer possession from use.
That position is impossible to sustain.
It would take normal fact-finding and
inference-drawing out of the hands of
district judges. Wright is best
understood not to do such a thing. The
statement that persons who test positive
for drug use "are classified as Grade C"
violators is dictum in Wright--the
district judge had found a Grade A
violation, and the choice between Grade B
and Grade C was not presented by the
case. Unreasoned statements in our
decisions should not be taken to overrule
opinions of prior panels, such as Young.
We disapprove the dictum in Wright and
reiterate the holding of Young, which has
such substantial support in other
circuits (plus the norm committing
inferences to the trier of fact).

  Finally, we must decide whether
Trotter’s possession of marijuana was
conduct "constituting any other federal,
state, or local offense punishable by a
term of imprisonment exceeding one year"
within the meaning of sec.7B1.1(a)(2).
The answer is yes if the district court
may consider Trotter’s prior drug
conviction, and no otherwise. "Yes" seems
an apt answer; how can one determine
whether an offense is "punishable" by a
particular term without considering all
of the ingredients that set the maximum
punishment? If a statute punished
marijuana possession by two years in
prison if the possession occurred within
1,000 feet of a school, and one month
otherwise, the court would have to
determine the distance from the school to
know whether given conduct was punishable
by more than a year in prison. Just so
with a recidivist enhancement. See
Almendarez-Torres v. United States, 523
U.S. 224 (1998). Many provisions of the
Guidelines other than sec.7B1.1(a)(2)
make something turn on whether conduct is
punishable as a felony, by a sentence
exceeding one year, or something similar.
We routinely hold that when making these
decisions the court must determine
whether the conduct is a felony (etc.)
after prior convictions are taken into
account. See, e.g., United States v.
Irby, 240 F.3d 597, 599-600 (7th Cir.
2001); United States v. Rice, 116 F.3d
267, 268 (7th Cir. 1997). Young reached
the same conclusion for purposes of
sec.7B1.1(a)(2), although without
spelling out the reasoning. 41 F.3d at
1186 & n.1. And both other courts of
appeals that have addressed the question
are in accord with Young. See Crace, 207
F.3d at 837-38; United States v.
Boisjolie, 74 F.3d 1115, 1116-17 (11th
Cir. 1996).

  Young seems to be the Rodney Dangerfield
of this circuit’s opinions. Wright
contradicted one of Young’s
holdingswithout mentioning it, and in
United States v. Lee, 78 F.3d 1236 (7th
Cir. 1996), we contradicted Young’s other
holding, again without recognizing the
state of circuit law. One reason why this
aspect of Young hasn’t received much
respect is the indirect way in which the
panel in Young stated the point, in a
cursory footnote. Apparently the lawyers
in Lee did not draw that panel’s
attention to Young. But it has been drawn
to our attention, and we must decide what
to do. One case or the other must be
overruled.

  Lee gave two principal reasons for
holding that prior convictions should be
disregarded when determining the grade of
a violation: first that Application Note
1 to sec.7B1.1 supports this approach,
and second that because the table in
sec.7B1.4 includes a criminal history
category, use of criminal history to
influence the grade level would be double
counting.

  Application Note 1 to sec.7B1.1 reads:

Under 18 U.S.C. sec.sec. 3563(a)(1) and
3583(d), a mandatory condition of
probation and supervised release is that
the defendant not commit another federal,
state, or local crime. A violation of
this condition may be charged whether or
not the defendant has been the subject of
a separate federal, state, or local
prosecution for such conduct. The grade
of violation does not depend upon the
conduct that is the subject of criminal
charges or of which the defendant is
convicted in a criminal proceeding.
Rather, the grade of the violation is to
be based on the defendant’s actual
conduct.

Lee relies on the last sentence: "the
grade of the violation is to be based on
the defendant’s actual conduct." This
means, we thought, that the court should
put to one side earlier offenses, which
are not part of the "actual conduct" that
occurs while on supervised release.
Putting this sentence back into context,
however, gives it a different meaning.
Application Note 1 tells the district
judge to consider what the person on
supervised release did, rather than what
crimes he has been charged with.
Revocation of supervised release, in
other words, proceeds on real-offense
rather than charge-offense principles. A
judge engaged in real-offense sentencing
does not ignore prior offenses that
affect the maximum punishment; recidivist
enhancements are part of real-offense
sentencing.

  As for double counting: If the
Guidelines’ use of criminal history to
influence the final sentence blocks
recidivist enhancements under sec.7B1.1,
it logically does so for any offense and
not just for revocation of supervised
release, for the use of criminal history
is ubiquitous in the Guidelines. Yet this
has never before been thought
incompatible with using prior convictions
to determine maximum permissible
punishments. Just one year after we
released Lee, the Supreme Court rejected
this element of its reasoning in United
States v. LaBonte, 520 U.S. 751 (1997).
Career criminals must be sentenced at or
near the maximum term for their crimes.
28 U.S.C. sec.994(h). Does "maximum term"
for this purpose mean the maximum with or
without recidivist enhancements? The
first circuit concluded in LaBonte that
the maximum must be determined without
recidivist enhancements, because the
effect of prior convictions is taken into
account in the career-criminal
enhancement (as well as the criminal
history category system). But the Supreme
Court held otherwise, concluding that the
term of punishment to which a person is
exposed on violating a statute includes
all enhancements--for quantity of drugs,
for use of firearms, for violence during
the offense, and for prior convictions. A
similar approach applied to
sec.7B1.1(a)(2) supports Young rather
than Lee, which must therefore be
overruled. This step will restore harmony
within the circuit and eliminate a
conflict among the circuits./*

   Trotter’s prior drug conviction exposed
him to a maximum of two years in prison
for possessing marijuana. The district
judge did not commit a clear error in
concluding that Trotter possessed
marijuana in the course of using it.
Trotter therefore committed a Grade B
violation, and the punishment imposed on
the revocation of his supervised release
is

Affirmed.

FOOTNOTE

/* This opinion was   circulated before release to all
active judges under   Circuit Rule 40(e). No judge
requested a hearing   en banc on the question
whether to overrule   Lee.
