                             NOT RECOMMENDED FOR PUBLICATION
                                    File Name: 19a0509n.06

                                                  No. 18-5949

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                                                                                    FILED
    UNITED STATES OF AMERICA,                                     )                           Oct 10, 2019
                                                                  )                      DEBORAH S. HUNT, Clerk
          Plaintiff-Appellee,                                     )
                                                                  )
                                                                           ON APPEAL FROM THE
    v.                                                            )
                                                                           UNITED STATES DISTRICT
                                                                  )
                                                                           COURT FOR THE EASTERN
    DANIEL RAYMOND VAUGHN,                                        )
                                                                           DISTRICT OF KENTUCKY
                                                                  )
          Defendant-Appellant.                                    )
                                                                  )

BEFORE:          BOGGS, SUHRHEINRICH, and WHITE, Circuit Judges.

         SUHRHEINRICH, Circuit Judge. After two1 positive urinalysis tests for marijuana in a

three-week period, the district court revoked Defendant Daniel Raymond Vaughn’s supervised

release and sentenced him to twenty-one months of confinement. Vaughn argues that this was in

error because the second positive test resulted not from a new use but rather from residual

elimination of marijuana from his body from a prior use. We AFFIRM.

                                                        I.

         In 2009, Vaughn was convicted in the Middle District of Tennessee of possession with

intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1). The district court sentenced

Vaughn to a guidelines range sentence of 100 months in prison, to be followed by a four-year term

of supervised release.




1
 In actuality there were three positive urinalysis tests—on June 11, 2018, June 29, 2018, and July 2, 2018, but the
district court based its second violation determination only on the July 2 positive test as a new use.
No. 18-5949, United States v. Vaughn


       Supervised Release. Vaughn’s term of supervised release began in 2015 and was originally

due to expire on January 1, 2019. While on supervised release, he was forbidden from possessing

controlled substances and from committing federal, state, or local crimes. He was also required to

undergo periodic drug testing. On October 3, 2016, Vaughn tested positive for marijuana. In this

circuit, use of a controlled substance equals possession, a federal crime. United States v. Crace,

207 F.3d 833, 835 (6th Cir. 2000). This makes a failed drug test a Grade B violation, USSG

§ 7B1.1(a)(2), which requires revocation of supervised release, Crace, 207 F.3d at 835 (citing

18 U.S.C. § 3583(g)). However, 18 U.S.C. §3583(d) returns some discretion to the district court,

allowing it to consider “whether the availability of appropriate substance abuse treatment

programs, or an individual’s current or past participation in such programs, warrants an exception

. . . from . . . section 3583(g) when considering any action against a defendant who fails a drug

test.” See Crace, 207 F.3d at 835. Consistent with § 35831(d), the district court allowed Vaughn

to continue on supervised release while attending outpatient substance-abuse treatment. On

November 21, 2016, jurisdiction over Vaughn was transferred to the Eastern District of Kentucky.

Vaughn was randomly tested ten times between October 2016 and June 2018 for illegal substances.

All ten samples were negative for illegal drugs.

       First Positive Urinalysis. Vaughn provided a urine sample on June 5, 2018, which was

negative for marijuana. However, that sample was diluted, so Vaughn’s probation officer asked

for another drug screen, which Vaughn provided on June 11, 2018. That urine sample tested

positive for marijuana, at a tetrahydrocannabinolic acid (THCA) level of 72 ng/mL.

       On June 20, 2018, Vaughn’s probation officer filed a supervised release violation report

charging Vaughn with both use and possession of marijuana. Vaughn’s initial appearance on these

violations was June 26, 2018. He was released from custody at the end of the initial hearing,



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No. 18-5949, United States v. Vaughn


pending outcome of the final supervised-release-revocation hearing, with the requirement that he

submit to weekly urine screens. Vaughn was screened two times, registering a THCA level of

15 ng/mL on June 29, 2018, and 27 ng/mL on July 2, 2018.

          Vaughn’s final revocation hearing on the June 11 marijuana violation was held on July 13,

2018. The district court considered only the June 11 violation because the lab results on the more

recent tests were not yet available. At this hearing, Vaughn admitted to using and possessing

marijuana on June 11. During allocution, defense counsel explained Vaughn’s marijuana use as

prompted by grief for the loss of his sister and mother. Vaughn’s sister was diagnosed with a

terminal illness in October 2016 and died about a year later. Vaughn and his sister would visit

their mother’s burial site each year for their mother’s birthday in June. June 2018 was the first

year that Vaughn visited his mother’s burial site after his sister passed away. Counsel observed

that Vaughn “just didn’t know how to deal with the grief,” and chose the “familiar recourse” of

marijuana on these occasions. Counsel stressed that “[i]f you look at [Vaughn’s] history on

release, the only two issues he’s ever had with drugs are tied with specific instances of severe

grief.”

          Vaughn echoed the same sentiment, explaining that he had “put . . . down” his former

gang- and drug-related lifestyle, and that “the reason why I done it is just, you know, I lost my

sister, my mother.” He told the court that his “three-and-a-half years” on supervised release had

“changed” him and that he was moving forward. The district court sentenced Vaughn to time

served on the June 11 violation and ordered eighteen months of supervised release and eight

weekends of intermittent confinement.

          Second Positive Urinalysis. Three days later, on July 16, the probation officer received an

interpretation letter from the toxicology lab, Alere Toxicology Services, indicating that the positive



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No. 18-5949, United States v. Vaughn


marijuana test from July 2 was a “new use” (as opposed to residual elimination from a prior use

symptomatic of “chronic use”). The characterization—chronic versus social—matters, because

marijuana stays in the body longer if one is a chronic user. A “social user” is “an individual who

smokes one marijuana cigarette per week.” A chronic user refers to “an individual who smokes

one or more marijuana cigarettes a day.” A social user clears marijuana from his system in less

than five days at a 15 ng/mL cutoff, whereas a chronic user may continue to release the drug into

the urine for up to four weeks. The interpretation letter was provided by Michael Daggett, a

toxicologist who had been filling in for Patricia Pizzo, Alere’s Director of Toxicology, while Pizzo

was on vacation.      Daggett’s interpretation letter was premised on the probation officer’s

characterization of Vaughn as a chronic user, but he concluded that there was a new use because

the THC level in the July 2 test was higher that the THC level in the June 29 test.

       This prompted Vaughn’s probation officer to file a new violation report on July 23, 2018.

A preliminary hearing before a magistrate judge was held on August 8, 2018. At the hearing, the

United States conceded that the charged violation was premised only upon the positive test from

July 2. The magistrate judge found probable cause to believe Vaughn had violated the terms of

his supervised release and set a final hearing date.

       Meanwhile, Pizzo offered an analysis different from Daggett’s. In an interpretation letter

dated August 8, 2018, she opined that “the results of the specimens collected on 6/29/18 and 7/2/18

appear to be residual elimination.” She also relied on the chronic-user characterization. Contrary

to Daggett’s opinion, which concluded that the July 2 test was the result of a new use because the

THC level had risen after the June 29 test, Pizzo explained that chronic users’ THC levels

commonly “shift[] up and down during the terminal elimination phase.” Thus, according to Pizzo,

the mere fact that the THC level has increased between the June 29 and July 2 tests could not



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No. 18-5949, United States v. Vaughn


establish a new use in a chronic user. Pizzo’s opinion, which Vaughn received on August 9,

prompted Vaughn to file a motion seeking immediate release from custody because Alere had

admitted that the July 16 report was incorrect. On August 10, 2018, the magistrate judge denied

Vaughn’s request for dismissal despite the new Alere report and set the matter for final hearing.

           Pizzo’s opinion prompted the United States to have Pizzo re-analyze the June 29 and July

2 positive tests while assuming Vaughn was only a social user. Based on a social-user status, Pizzo

concluded in an August 29, 2018 interpretation letter that both positive tests should be considered

new uses.2

           At the final revocation hearing held on August 31, 2018, the United States, relying on

Pizzo’s August 29 interpretation letter, argued that Vaughn was a social user and had re-used

marijuana at least once after the June 11 positive screen—on or before July 2. The district court

agreed. Having determined that Vaughn violated the terms of his supervised release, the court

revoked his supervised release and sentenced him to twenty-one months’ imprisonment. Vaughn

appeals.

                                                           II.

                                                           A.

           Vaughn claims that the evidence did not establish that he was a social user of marijuana.

Neither party disputes the methodology regarding marijuana elimination from the body; only the

court’s classification of chronic versus social user. If Vaughn is right, and he is properly classified

as a chronic user, the July 2 positive drug test was not a violation of his supervised release

conditions because it was not a new use but rather residual elimination of marijuana from the June

11 incident.



2
    Pizzo provided a virtually identical letter to Vaughn on August 27, 2018.

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No. 18-5949, United States v. Vaughn


       A district court is authorized to revoke a term of supervised release if it “finds by a

preponderance of the evidence” that the defendant violated the terms of his release. 18 U.S.C.

§ 3583(e)(3). We review that decision for abuse of discretion. United States v. Coleman, 570 F.

App’x 438, 440 (6th Cir. 2014). Factual findings in this setting are reviewed for clear error. United

States v. Kontrol, 554 F.3d 1089, 1091-92 (6th Cir. 2009).

       The district court based its violation determination only on the July 2 positive test as a new

use, which was twenty-one days after Vaughn’s admitted used on June 11. Vaughn faults the

district court’s finding because Pizzo testified that “[y]ou can’t get a usage type from a urine drug

screen test,” and Pizzo conceded that she did not have any information about his pattern of

marijuana use. Vaughn points out that the probation officer, who was in a position to know,

characterized Vaughn’s use as chronic in his request for a report from Alere.

       Nevertheless, sufficient evidence supports the district court’s finding that Vaughn was a

social user of marijuana, not a chronic user, for the purpose of assessing his follow-up positive

drug tests. First, Vaughn had not tested positive for over twenty months while on supervised

release, an important circumstantial fact. The testing was random. As the district court reasoned,

it was unlikely that Vaughn would risk using marijuana on a daily basis. Second, Vaughn and his

attorney made statements at the July 13 revocation hearing for the June 11 violation that depicted

Vaughn’s use on June 11 (as well as October 2016) as an isolated episode induced by grief, which

the district court credited as consistent with social use. The district court reasonably relied on

Vaughn’s self-report regarding his marijuana usage. See United States v. Chames, 376 F. App’x

578, 581 (6th Cir. 2010) (per curiam) (stating that the “Federal Rules of Evidence do not apply to

supervised release revocation hearings,” so a district court may properly consider prior violations).

Contrary to his assertion, Vaughn’s explanation for his June 11 use also spoke to how often he



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No. 18-5949, United States v. Vaughn


smoked marijuana. Nor did the district court err in refusing to credit the probation office’s casual

selection of the “chronic” box when seeking reports from Alere, since the probation officer

testified that the choice had nothing to do with Vaughn’s actual use history (but simply assumed

“the worst-case scenario”). Third, Pizzo testified that the level of THCA in the June 11 sample,

72 ng/mL, was inconsistent with chronic use, which is “normally” in the range of 600-700 ng/mL

for chronic users, up to as high as 10,000 ng/mL. Fourth, the June 5 sample was negative for

marijuana. Although it was a dilute sample, Pizzo pointed out that it was unlikely that a chronic

user could provide a negative sample. The district court expressly credited Pizzo’s testimony in

its factual findings.

          Vaughn continues to argue that he should be considered a chronic user for purposes of the

July 2 test, because Pizzo acknowledged that a person could become a chronic user in six days or

less—the amount of time between June 5 and June 11. In addition to the reasons stated above, the

district court rejected this “logic” based on “what was happening at the time in June”: that Vaughn

was “suddenly being tested again,” and knew that he was going to be tested again. To the court’s

mind, it was “contrary to common sense” that Vaughn would “suddenly become a chronic user

during that period of time.”

          With the proper finding that Vaughn was a social marijuana user, the July 2 positive

urinalysis result supports the conclusion that he used marijuana on at least one new occasion after

June 11 in violation of the conditions of supervised release. Because the evidence was sufficient

to establish use, and our circuit equates use with possession, the evidence also established the

Grade B violation of possession. See United States v. Godman, 27 F. App’x 484, 485 (6th Cir.

2001).3


3
 Vaughn contends that because he did not admit to using marijuana after June 11, 2018, Sixth Circuit precedent
equating admitted drug use with possession does not apply. However, these cases do not base the “use equals

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No. 18-5949, United States v. Vaughn


                                                           B.

         Vaughn also argues that his sentence is procedurally and substantively unreasonable. He

argues that his sentence is procedurally unreasonable because it was based on a clearly erroneous

fact—that he was a social user of marijuana on July 2. See Gall v. United States, 552 U.S. 38, 51

(2007) (holding that selecting a sentence on clearly erroneous facts is a procedural error).

However, as just discussed, we have concluded that the district court’s determination was not a

clearly erroneous finding of fact.

         Vaughn claims that his sentence was substantively unreasonable “because it was far greater

than necessary to meet the needs of [18 U.S.C.] § 3553.” He notes that on July 13 the district court

saw fit to impose a sentence of time served and extended his supervised release with the added

condition that he serve eight weekends of intermittent confinement, despite knowledge of the June

29 and July 2 positive marijuana tests. But, as the United States points out, on July 13, there had

been no interpretation as to whether those positive tests were the result of new or residual use. By

August 29, however, the district court found an additional violation and had surmised that it had

been “tricked,” that “the representations that were made turn out to be false because . . . this

defendant continued to use marijuana . . . prior to the sample being collected on July the 2nd of

2018.” The district court did not abuse its discretion in imposing a bottom-of-the-guidelines

sentence for an additional violation and Vaughn’s breach of the court’s trust. See United States

Sentencing Commission Guidelines Manual, Ch. 7, Pt.A(3)(b), intro. comment. (Nov. 2016).

(stating that “at revocation the court should sanction primarily the defendant’s breach of trust,

while taking into account, to a limited degree, the seriousness of the underlying violation and the



possession” rule on the defendant’s admission of use. See, e.g., Godman, 27 F. App’x at 485; Crace, 207 F.3d at 836-
37; United States v. Hancox, 49 F.3d 223, 224-25 (6th Cir. 1995); see also United States v. Price, 901 F.3d 746, 751
(6th Cir. 2018) (stating that “[e]ven if” the defendant had not admitted use of cocaine, revocation of supervised release
was proper where there was “no dispute that [the defendant] tested positive for” cocaine).

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No. 18-5949, United States v. Vaughn


criminal history of the violator”); see also United States v Vonner, 516 F.3d 382, 389 (6th Cir.

2008) (en banc) (explaining that we afford a presumption of reasonable to within -guidelines

sentences).



                                              III.

       For the foregoing reasons, we AFFIRM Vaughn’s supervised release revocation and

sentence.




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