UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 91-8492 __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANE CLARK COURTNEY,

Defendant-Appellant.

______________________________________________

Appeal from the United States District Court for the Western District of Texas ______________________________________________

(November 25, 1992)

Before BROWN, GARWOOD, and DEMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

The district court, by order dated August 16, 1991, revoked

appellant Dane Clark Courtney's six-year term of supervised release

for possession of cocaine and, pursuant to

(e) &

(g), required him to serve twenty-four months imprisonment,

followed by three years of supervised release. He brings this

appeal, challenging his sentencing and the determination that he

possessed cocaine. We vacate and remand.

Facts and Proceedings Below

On July 11, 1989, Dane Clark Courtney (Courtney) was indicted

for distributing "crack" cocaine on a playground on June 27, 1989, contrary to

(a)(1) & 845a (now § 860). Courtney

pleaded guilty to the charged offense on September 25, 1989.

During his presentence interview, Courtney admitted that he had

been using "crack" for approximately one and one-half years, and

that he progressed from using "crack" once a day to a maximum of

four times a day until the day of his arrest. Dr. Steven L. Mark

evaluated Courtney and gave his opinion that Courtney was dependent

on the drug at the time of the offense. On November 17, 1989,

Courtney was sentenced by the district court to twenty-seven

months confinement followed by six years of supervised release. On

May 1, 1991, he began his supervised release at a halfway house.

Courtney began his visits with his probation officer, LaDonna

Jackson (Jackson) on June 27, 1991. On his next two visits on July

1, 1991, and July 9, 1991, he submitted urine samples which tested

positive for cocaine metabolite. Courtney denied to Jackson using

drugs on either occasion and explained to her that the drugs might

have entered his system by "kissing a girl," and that he had a

number of girlfriends.

On July 30, 1991, a motion was filed to revoke Courtney's

release for having "used and possessed cocaine on or about July 1,

1991 and July 9, 1991." A hearing on this motion was held before

the sentencing district judge on August 15, 1991. At the hearing,

Courtney, represented by counsel, pleaded "not true." Jackson

testified to the taking of the samples and Courtney's statements to

her regarding the results as above related. She explained that the

laboratory performed the tests pursuant to a contract to do such

testing for United States Probation offices. On cross-examination,

2 she stated that in her experience and training, an illegal drug,

such as cocaine, will remain in an individual's system for a

maximum of approximately seventy-two hours. Jackson also testified

on cross-examination that the laboratory analysis did not indicate

a specific quantity or amount of cocaine in the urine samples, but

that the laboratory will not issue a positive result unless the

sample reveals at least 300 nanograms per milliliter of cocaine

metabolite. There was no objection to any of Jackson's testimony.

Courtney testified that after he left the halfway house, he

lived with a woman who smoked "crack" cocaine on at least three

different occasions while they were in bed together. Courtney

acknowledged that Jackson had warned him against using, or

associating with anyone that used controlled substances, but that

he did not take the warning seriously. He did not dispute the

taking of the urine samples. He also admitted that prior to his

conviction he smoked a large amount of cocaine, and that he

associated with other "crack" smokers.

The sentencing district court found that Courtney had violated

the terms of his supervised release by using and possessing

cocaine. In making this finding the district court stated:

"I have heard evidence in a number of other cases that the reason this testing company will return a negative result for less than 300 nanograms per milliliter of cocaine is because all of the testing that has been done indicates that the maximum amount that can be found or ingested into a human system passively is 100 nanograms or less. So anything less than three times the maximum that could be ingested passively they return as a negative result to eliminate that possibility. Therefore, the Court would have no choice, at least in my view, of finding that Mr. Courtney has violated the terms of his supervised release by using and possessing cocaine, and that his supervised release will be

3 revoked."

The district court then revoked Courtney's supervised release and

required him to serve twenty-four months confinement to be followed

by three years supervised release. The district court based this

disposition on

(g) which mandates that the

supervised release be terminated and the defendant be required to

serve in prison at least one-third of the original supervised

release term where he is found to have been in possession of a

controlled substance.1

Discussion

Courtney raises two basic issues on appeal. First, he

complains that the district court erred by assuming once it

established use from the urinalysis report, then it must find

possession. Second, he contends that the district court improperly

ordered him to be both confined and subject to a following term of

supervised release because under

(e) & (g) the

district court is prohibited from ordering both a period of

imprisonment and a period of supervised release after revoking the

original term of supervised release.

1 The court stated: "The period of supervised release was six years or 72 months. Title 18, Section 3583(g) mandates a sentence of at least one-third of that in this case, so the Court would have no discretion but to impose a sentence of 24 months, which will be done in this case, to be followed by three years of supervised release." Section 3583(g) states that: "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."

(g).

4 I. Use and possession

The district court felt compelled to apply section 3583(g)

because its determination based on the laboratory analysis that

Courtney used "crack" cocaine ineluctably led to the conclusion

that he possessed the substance. Courtney complains that he need

not be found to be in possession of an illegal substance based on

the mere evidence of a positive drug test. He argues that a

positive result might be evidence of use but one could not conclude

that this evidence of use required a finding of possession.

Therefore, the district court had the choice of only finding use

and applying section 3583(e)2 while avoiding the requirements of

section 3583(g). In determining Courtney's complaints, we review

the district court's interpretation of the statutes de novo.

United States v. Headrick,

(5th Cir. 1992).

Courtney relies on United States v. Blackston,

2 Section 3583(e) provides in part that:

"The Court may . . .

(1) terminate a term of supervised release and discharge the person released at any time after the expiration of one year of supervised release . . .

(2) extend a term of supervised release if less than the maximum authorized term was previously imposed, and may modify, reduce, or enlarge the conditions of supervised release . . .

(3) revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for time previously served on postrelease supervision . . .

(4) order the person to remain at his place of residence during nonworking hours . . . ."

(e).

5 (3d Cir. 1991), for the proposition that there exists a distinction

between use and possession, and that although evidence of the

former can serve as a basis for finding the latter, the district

court is not required to conclude that the use constituted

possession.

The Blackston court found such a distinction based on the

overall structure of section 3583. This section requires as a

condition of supervised release "that the defendant not possess

illegal controlled substances."

(d). This section

also makes reference to

(b)(8) which authorizes

courts to order as a condition of supervised release that the

defendant "refrain from . . . any use of a narcotic drug or other

controlled substance . . . without a prescription by a licensed

medical practitioner." We disagree that these two supervised

release conditions create a meaningful distinction for purposes of

§ 3583(e) & (g) between use and possession of a controlled

substance.

As the Blackston court notes, possession, as used in criminal

offense statutes, has a settled meaning of "actual physical control

or of the power and the intent to exercise dominion or control."

Id. at 883. It is further settled that in this context possession

must be knowing. See FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS, CRIMINAL

CASES, INSTRUCTION NO. 1.31 (West 1990). The Blackston court does not

define use but merely states that use and possession are somehow

different. Id. at 884. The court exhaustively reviews the

legislative history behind section 3583(g) and finds it

inconclusive on this issue. Id. at 884-86. In addition, the court

6 acknowledges that other federal circuits have uniformly found use

to necessarily require possession. Id. at 887-88. See, United

States v. Dillard,

(7th Cir. 1990); United States

v. Graves,

(8th Cir. 1990); United States v.

Kindred,

, 487 n. 3 (5th Cir. 1990); United States v.

Ramos-Santiago,

(1st Cir. 1991).

The act of simple knowing possession of a controlled substance

is a federal criminal offense.

There is no

federal statutory provision which in terms criminalizes "use" or

"consumption" of a controlled substance. However, it is not a

defense to an otherwise established simple possession offense that

the defendant did not possess the substance because he merely used

or consumed it. United States v. Schocket,

(4th

Cir. 1985) (defendant had "possession over the cocaine since he had

the ability to use it, remove it, and therefore to exercise

dominion and control over the substance") (italics added). Had

Congress chosen to separately criminalize use and simple

possession, then the argument would be stronger that use is

separately defined from simple possession with separate legal

elements. But, under the present statutory scheme for criminal

offenses, use is subsumed within possession.

This conclusion would still exclude passive inhalation from

3 Section 844(a) provides in relevant part that:

"It shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice . . . ."

(a).

7 both possession and use. Possession requires the knowing exercise

of dominion or control. Similarly, in a sentencing or revocation

context it is clear that "use" requires knowing and voluntary

ingestion. But once the court finds a substance has been

voluntarily and knowingly ingested, then, at least in almost any

imaginable circumstance, it necessarily follows that the defendant

has possessed the substance. In short, there is no "use" exception

to possession: if one knowingly and voluntarily exercises dominion

and control over a substanceSQas by putting it in one's mouth and

swallowing it knowing what it isSQone possesses it, and this

conclusion is in no way altered by the fact that the same facts may

constitute one's "use" of the substance. By the same token, it

would not, for sentencing or supervised release purposes, be either

"use" or "possession" if one believed the ingested substance was

some other (non-controlled) substance or ingested it involuntarily

or unknowingly.

If evidence establishes that a positive result from a drug

test is at a level such that passive inhalation or similar

phenomenon may not reasonably account for it, then the district

court may find that the defendant knowingly and voluntarily had,

alone or jointly with others, actual physical control over the

drug, or the power and intent to exercise dominion or control over

it, and was hence in possession of it.4 The district court may

4 This holding is in accord with the Sentencing Commission which in Application Note 5 to Guidelines § 7B1.4 states that it "leaves to the court the determination of whether evidence of drug usage established solely by laboratory analysis constitutes 'possession of a controlled substance' as set forth in

(a) and 3583(g)."

(emphasis added). The Ninth

8 ordinarily rely solely on this evidence,5 but being the trier of

fact, its duty, of course, is to draw the appropriate inferences

and determine "factual contentions and whom to believe." Hall v.

United States,

(10th Cir. 1969).

Jackson's undisputed and unobjected to testimony established

that the two positive tests for cocaine were the result of two

separate incidents of cocaine inhalation and that the positive

results contained at least 300 nanograms per milliliter of cocaine

metabolite.6 But, there was no evidence as to the significance of

a 300 (or more) nanogram reading, as distinguished from any other

Circuit has also recognized that the Sentencing Commission explicitly grants to the district court discretion to determine whether positive laboratory analyses evidences possession. United States v. Baclaan,

(9th Cir. 1991). This also accords with cases decided under

, the counterpart to section 3583(g), for probation revocation. Section 3565 also requires revocation for possession of a controlled substance. Under this section, courts have determined that a positive result from laboratory analysis supports a finding of possession. United States v. Gordon,

(3rd Cir. 1992); United States v. Granderson,

(11th Cir. 1992). 5 Here there appears to exist evidence corroborating the positive laboratory analyses. The district court could take into account Courtney's prior use of the drug and his drug addiction, his admission that he did not take seriously Jackson's warning to avoid drug users, and his inconsistent explanations concerning the alleged passive inhalation. An admission by the defendant is not required. 6 Jackson's testimony established that cocaine will only cause a positive result within seventy-two hours of ingestion. Tests were taken on July 1, and July 9, which are periods that are more than seventy-two hours apart. Therefore, the district court could have determined from the evidence that Courtney was exposed to cocaine from two separate incidents. See, United States v. Kindred,

(5th Cir. 1990) (allowing as evidence "the admission of urinalysis tests in a probation revocation hearing through the testimony of a probation officer").

9 positive reading, or whether it, or any other aspect of the test

results, were such as could not reasonably be accounted for by

passive inhalation.7

The district court, in finding that the level of cocaine

metabolite from the urinalysis tests could not be the result of

passive inhalation, merely relied, sua sponte, on his general

recollection of unspecified testimony, in unidentified prior cases

from unidentified witnesses, that only a maximum of 100 nanograms

per milliliter of cocaine can result from passive inhalation. In

this respect, the district court erred. Revocation hearings are

not formal trials and the usual rules of evidence need not be

applied. See Advisory Committee Notes to Fed. R. Crim. P.

32.1(a)(2); Kindred,

. Nevertheless, the

district court here simply went an informality too far.

Unspecified testimony by unidentified witnesses in unidentified

prior cases may properly form no material part of the

"preponderance of the evidence" on which the district court must

base its section 3583(e) decision, and critical reliance thereon

7 In an analogous Texas state court case, the trial court revoked the defendant's probation for possession of marihuana based solely on a positive urine sample. Brown v. State,

(Tex. Ct. App.SQTyler 1988). The defendant argued that the positive result was caused by passive smoke inhalation. The appellate court upheld the revocation relying on the expert testimony indicating that the positive test result required a level of at least 100 nanograms per milliliter and "that passive inhalation of marijuana smoke would not produce a result of 100 nanograms per milliliter."

. The court concluded that "the State established by a preponderance of the evidence that Brown violated the laws of this State by possessing a usable quantity of marihuana since Brown's urine tested positive for marihuana at a level greater than is found for passive inhalation."

.

10 denies the defendant the character of hearing contemplated by Rule

32.1(a)(2) and prevents this courtSQwhich has nothing before it

(either as part of anything includable in the record below or

otherwise) tending to indicate that test results positive for

cocaine with levels of not less than 100 (or any other number of)

nanograms may not be accounted for by passive inhalationSQfrom

meaningful exercise of its duty of review.

On remand, the district court should have a proper record

basis for concluding that a positive result on the tests may not

reasonably be accounted for by passive inhalation. This could be

adequately established through expert testimony, or by the

probation officer's testimony, see Kindred,

, or

perhaps through judicial notice based on an adequately developed

foundation and prior notice and opportunity to rebut. See Rule

32.1(a)(2) & Fed. Rule Evid. 201.

If such a record is developed, then the district court needs

to determine if Courtney voluntarily and knowingly ingested the

cocaine and thus possessed it. If so, the district court must

apply section 3583(g). Kindred,

(holding once

possession is found, "the district court had no alternative but to

revoke his supervised release under § 3583(g)").

II. Sentencing requirements

The district court ordered Courtney imprisoned for twenty-four

months followed by three years of supervised release. Courtney

complains that this is improper because under

(e)

the district court is prohibited from ordering both a period of

imprisonment and a period of supervised release on revocation of an

11 original term of supervised release. In its brief, the government

states that "it appears that the imposition of the additional term

of supervised release was error, and that remand for resentencing

would be appropriate."

We accept the government's concession.

As held in United States v. Holmes,

(5th Cir.

1992), the language of

(e) does not allow a

district court to revoke a term of supervised release and then

impose both a term of imprisonment and an extended term of

supervised release following that prison term.

. Once

a term of supervised release is revoked, it no longer exists and

cannot be used as the basis for a new term of supervised release

following imprisonment.

Therefore, the Holmes panel reversed

that part of the judgment, vacated the sentence, and remanded to

allow the district court to sentence "with all legal choices before

it."

.

Conclusion

Accordingly, the district court's August 16, 1991 order is

vacated and the matter is remanded for proceedings not inconsistent

herewith.

VACATED and REMANDED

12