                             UNITED STATES COURT OF APPEALS

                                     FOR THE FIFTH CIRCUIT


                                         __________________

                                              01-10623
                                         __________________



        UNITED STATES OF AMERICA,
                                                              Plaintiff-Appellee,

                                                    v.

        FELIX HARPER,

                                                              Defendant-Appellant.

                     ______________________________________________

                       Appeal from the United States District Court for the
                            Northern District of Texas, Fort Worth
                                        4:93-CR-97-1
                     ______________________________________________
                                        March 15, 2002


Before HIGGINBOTHAM, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

        After having been previously convicted of a firearms offense, for which Appellant Felix

Harper served a term of imprisonment and was serving a three-year term of supervised release, the

district court determined that it was constrained to revoke Harper’s supervised release and then

imposed a term of imprisonment of twenty-four months. The sole issue on appeal is whether



   *
     Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is
not precedent except under the limited circumstances set forth in Local Rule 47.5.4.
Harper’s violations of his conditions of supervised released mandated the revocation of his term of

supervised release under 18 U.S.C. § 3583(g).

         After a hearing, the district court made findings of fact that the following violations of

conditions of supervised release had occurred: (1) Harper failed to submit urine specimens on

December 20, 1999, August 25, 2000, December 3, 2000, and March 29, 2000; (2) Harper admitted

to his probation officer that he used cocaine on November 4, 2000; (3) on April 19, 2000, Harper

submitted a urine specimen that tested positive for cocaine metabolite; (4) Harper admitted to his

probation officer that he used cocaine on March 18, 2001; (5) and Harper admitted to his probation

officer on March 23, 2001, that he assisted an individual with the purchase of $1,000 worth of

cocaine for which he was paid a $500 brokerage fee (Harper stated that he tasted the cocaine for the

purchaser to ensure that the cocaine was of good quality). Harper admitted to all of the violations

except for being involved in the cocaine sale; he claimed he had fabricated the story. The district

court, however, specifically found that Harper had, in fact, assisted with the purchase of cocaine and

received $500.

       The district court found that Harper had violated Standard Condition of Release No. 7, which

provided that “[t]he defendant shall refrain from excessive use of alcohol and shall not purchase,

possess, use, distribute or administer any narcotic or other controlled substance, or any paraphernalia

related to such substances, except as prescribed by a physician.” The district court also found that

Harper had violated Standard Condition No. 9, which required him to not associate with anyone

engaged in criminal activity.

        Title 18 U.S.C. § 3583, the statute governing the inclusion of a term of supervised release

after imprisonment, currently provides in subsection (g), in pertinent part, [i]f the defendant – (1)


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possesses a controlled substance . . . or (3) refuses to comply with drug testing imposed as a

condition of supervised release; 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 supervised release

authorized under subsection (e)(3).” (emphasis added).

        In United States v. Smith, 978 F.2d 181, 182 (5th Cir. 1992), this Court concluded that

positive urinalysis results and a defendant’s admission of use of cocaine constituted circumstantial

evidence of possession of a controlled substance, which mandated the revocation of supervised

release under then § 3583(g). After Smith was decided, Congress amended the statute, and in

subsection (d) provided that where the basis for the violation is a failed drug test, the district court

shall consider the availability of substance abuse programs or whether an exception to the mandatory

revocation requirements of § 3583(g) is warranted. See 18 U.S.C. § 3583(d). After the amendment,

another circuit has held that subsection (d) provides a district court with the discretion not to revoke

supervised release and instead pro vide for treatment in a situation where the offender has tested

positive for drugs. See United States v. Pierce, 132 F.3d 1207, 1208 (8th Cir. 1997).

        In the instant case, it is beyond dispute that the district court had the discretion to revoke

Harper’s supervised release for his multiple violations. Nonetheless, desiring to “test” the statute,

the district court ruled that it was required to revoke Harper’s supervised release.1 Thus, the district

court’s determination of this question of law is subject to plenary review. See United States v.

Dupaquier, 74 F.3d 615, 617 (5th Cir. 1996).

        Harper argues that the exception to revocation contained in § 3583(d) was not in existence



   1
      During the hearing, the court stated as follows: “We’re going to put this statute to the test. I’m going
to say I don’t have any discretion in this case.”

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at the time of this Court’s Smith decision and that, in accordance with the Eighth Circuit’s holding

in Pierce, this section provides the district court with discretion and flexibility in determining whether

supervised release should be revoked or treatment provided instead. The case at bar, however, is not

simply a matter of a failed drug test. Harper failed to submit urine specimens on four occasions.

More significantly, Harper possessed and used cocaine on two occasions in addition to his three failed

drug tests, and he assisted in the sale of cocaine in which he possessed a sample of the substance by

tasting to test its quality and received a $500 finder’s fee. The district court undoubtedly recognized

the seriousness of Harper’s violations when it disregarded the six to twelve month range of

imprisonment contemplated by the policy statement (§ 7B1.4(a), p.s.) and instead sentenced Harper

to twenty-four months, stating that “I don’t think the top of that is sufficient to address the objectives

of sentencing, bearing in mind the serious and large number of violations of the conditions of

supervised release in this case.” (emphasis added). As previously indicated, the exception to

mandatory revocation of supervised release applies when the district court is “considering any action

against a defendant who fails a drug test.” See § 3583(d). The district court’s uncontested factual

findings with respect to Harper’s conduct render him ineligible for the discretionary exception in §

3583(d).2 The district court’s conclusion that it was required to revoke Harper’s supervised release

was correct.

AFFIRMED.




   2
      Harper also argues that someone who tests positive for drug use and falsely denies other drug use should
not be in a worse position that someone who tests positive for drugs and honestly admits other drug use. In
this case, however, Harper falsely denied, according to the district court, his conduct in brokering the drug deal.

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