
USCA1 Opinion

	




          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.                                          I.                                   Factual Context                                   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.                                         II.                                      Discussion                                      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-
