United States v. Crace

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0111P (6th Cir.) File Name: 00a0111p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  UNITED STATES OF AMERICA,  Plaintiff-Appellee,   No. 99-5364 v.  > JACK BRENT CRACE,  Defendant-Appellant.  1 Appeal from the United States District Court for the Eastern District of Kentucky at Pikeville. No. 95-00026—Joseph M. Hood, District Judge. Argued: January 27, 2000 Decided and Filed: March 29, 2000 Before: KENNEDY, RYAN, and BOGGS, Circuit Judges. _________________ COUNSEL ARGUED: Stephen D. Milner, HUGHES, LOWRY & MILNER, Lexington, Kentucky, for Appellant. Thomas L. Self, ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky, for Appellee. ON BRIEF: Stephen D. Milner, HUGHES, LOWRY & MILNER, Lexington, Kentucky, for Appellant. Thomas L. Self, Charles P. Wisdom, Jr., ASSISTANT UNITED STATES ATTORNEYS, Lexington, Kentucky, for Appellee.

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_________________ OPINION _________________ KENNEDY, Circuit Judge. Defendant, Jack Brent Crace, appeals the district court’s decision to revoke his supervised release and impose an additional prison sentence after determining that the defendant violated the terms of his supervised release by producing a urine specimen which tested positive for cocaine. He contends that the district court erred in revoking his term of supervised release and, in the alternative, that the district court applied an inappropriate sentencing range in determining his sentence. We believe that the district court’s decision to revoke the defendant’s supervised release and incarcerate him for a year was not an abuse of discretion and affirm the judgment of the district court. I. Facts Defendant Crace pled guilty to participating in the interstate transportation of stolen property and was sentenced to a term of twelve months imprisonment to be followed by a twenty- four month period of supervised release. Shortly after the defendant was released from federal custody, he was convicted in state court and incarcerated. Upon his release from state custody, the defendant was once again placed upon supervised release for his federal sentence. Six days after his release from state custody, the defendant tested positive for cocaine. Defendant’s probation officer filed a Notification of Violation of Supervised Release. Although the defendant initially denied using cocaine when questioned by his probation officer, he admitted using cocaine at the hearing on the alleged supervised release violation. Following the hearing, the district court judge revoked the defendant’s supervised release and sentenced him to a period of twelve months incarceration. Defendant appeals the revocation of his supervised release and the sentence of incarceration imposed by the district court.

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In addition to its finding that the defendant’s conduct II. Discussion constituted a felony under federal law, the district court also found that the defendant’s positive drug test constituted a Defendant raises two issues on appeal. He argues that the felony under state law. Under Kentucky law, possession of a district court was not required to revoke his term of controlled substance is a felony even if it is the individual’s supervised release and that the district court abused its first offense. See Ky. Rev. Stat. Ann. § 218A.1415(2)(b) discretion by determining that it was mandated to incarcerate (Baldwin 1998). Because defendant’s instant conduct, simple the defendant. He also argues that the district court erred in possession, divorced from his prior criminal activity, applying the sentencing guidelines. He contends that the constitutes a Class D felony, punishable by at least one year district court’s finding that his conduct was a Grade B, rather of imprisonment, we believe that the district court properly than a Grade C offense constituted impermissible double classified the defendant’s positive drug test as a Grade B counting. In response, the government states that the district violation. court did not abuse its discretion in revoking the defendant’s supervised release because it was mandated to do so by the III. Conclusion case law of this circuit. The government also argues that the district court did not err in sentencing the defendant to 12 For the foregoing reasons, we affirm the decision of the months imprisonment because the district court’s district court. consideration of the defendant’s prior criminal conduct did not constitute impermissible double counting. This court applies an abuse of discretion standard to its review of a district court’s decision to revoke supervised release. See United States v. Stephenson, 928 F.2d 728, 732 (6th Cir. 1991). This court reviews a district court’s application of the sentencing guidelines to a particular set of facts de novo. See United States v. Childers, 86 F.3d 562, 563 (6th Cir. 1996). We believe that the district court did not abuse its discretion in revoking the defendant’s term of supervised release. We also hold that the district court’s consideration of the defendant’s prior criminal conduct when classifying defendant’s current conduct as a Grade B violation was not impermissible double counting. A. Revocation of Supervised Release Defendant argues that a failed drug test constitutes a Grade C violation and that section 7B1.3(a) of the sentencing guidelines permits the district court to extend or modify the term of supervised release, in lieu of revoking the supervised release in the case of a Grade C violation. U.S.S.G. § 7B1.3(a) (1998). Because the district court held that under this circuit’s law, defendant’s failed drug test was evidence of

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possession, a Grade B violation, which, under 18 U.S.C. measure different things. The offense level represents a § 3583(g), requires revocation of supervised release defendant judgment as to the wrongfulness of the particular act. argues that the court abused its discretion. We believe that The criminal history category principally estimates the the district court was correct in finding that it was required by likelihood of recidivism. 18 U.S.C. § 3583(g) to revoke the defendant’s term of supervised release upon the defendant’s positive drug test and Id. at 24 (internal citations omitted). The Second Circuit admission of the use of a controlled substance unless noted that the statute under which the defendant was defendant could come under the exception in 18 U.S.C. convicted, 8 U.S.C. § 1326, provided for an increased § 3583(d). maximum sentence when the defendant had been convicted of an aggravated felony, as opposed to a simple felony. The We note that 18 U.S.C. § 3583(d) now provides that court stated that this indicated Congress’ conclusion that the defendant’s prior commission of an aggravated felony was [t]he court shall consider whether the availability of relevant to measuring the severity of the instant offense. Id. appropriate substance abuse treatment programs, or an Other circuits also have addressed the use of a defendant’s individual’s current or past participation in such prior felony conviction in calculating both the offense level programs, warrants an exception in accordance with and the criminal history and found this dual use permissible. United States Sentencing Commission guidelines from See United States v. Alessandroni, 982 F.2d 419, 423 (10th the rule of section 3583(g) when considering any action Cir. 1992) (holding that the district court properly used the against a defendant who fails a drug test. defendant’s prior conviction as the predicate felony under § 922(g)(1) and as a prior sentence in the defendant’s criminal For individuals like Crace who have failed a drug test, the history); United States v. Wycoff, 918 F.2d 925, 927 (11th Cir. district court must consider whether an appropriate substance 1990) (same). abuse program was available, and whether enrollment in such a program was an option preferable to prison. We assume We find the rationales of these courts persuasive and hold that the district judge considered and rejected this option. that the district court did not engage in impermissible double Crace did not raise this issue on appeal, so it is waived; counting. Like the statute in Campbell, 21 U.S.C. § 844(a) moreover, we do not require magic words in the record of the provides for a higher maximum sentence for defendants who sentencing hearing indicating that substance abuse treatment have prior convictions for drug offenses. We think that this was considered in order to uphold the district court’s prison evidences Congress’ belief that a defendant’s prior drug sentence.1 convictions affect the severity of a subsequent drug possession offense. The district court’s use of Crace’s prior This case is governed by the holding set forth in United drug convictions to establish the offense level of his positive States v. Hancox, 49 F.3d 223 (6th Cir. 1995) with respect to drug screen and his criminal history category was not impermissible double counting. These prior convictions were used to establish both the wrongfulness of the instant offense 1 and the defendant’s potential for recidivism. Because the We note defendant had three prior drug convictions. Also, the court base offense and the criminal history category are intended to was concerned that defendant’s original claim, that he didn’t know how the drugs got in his system, “was not a positive step toward reflect different concerns, we hold that the district court rehabilitation.” The court did not extend supervised release saying, “I properly considered the defendant’s prior convictions in its don’t want any of my probation officers to have anything further to do sentencing. with defendant.”

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In determining that the defendant’s conduct constituted a whether the results of a failed drug test constitute possession. felony, thus a Grade B violation, the district court considered In Hancox, a panel of this Circuit held that use of a controlled both state and federal law. The defendant argues that the substance constitutes possession under 18 U.S.C. § 3583(g). district court should be guided by federal, not state law2 and Id. at 224. that simple possession is not a felony under federal law. See 21 U.S.C. § 843(a) (simple possession is subject to The part of § 3583(d) discussed above was not in effect at punishment of not more than one year imprisonment). Under the time of Hancox’s sentencing by the district court, so it did federal law, the district court would be3 required to consider not affect the ruling on appeal. However, the district court the defendant’s prior drug convictions in order to find that opinion in Hancox would be upheld today, under § 3583(d) as his instant offense was a felony. Because the defendant’s it has been amended. This circuit’s ruling in Hancox on what prior convictions affect the calculation of his criminal history, constitutes possession stands, but insofar as the sentencing the defendant argues that the district court’s consideration of guidelines are rooted in the statutory commands of the his prior convictions in defining the elements of the instant amended § 3583(d), they are not merely advisory. Hence, offense was error. contrary to cases like United States v. Bolenbaugh, it is not the advisory nature of the section 7 guideline policy We disagree with the defendant’s contention that the statements that make a prison sentence acceptable, but rather district court engaged in double counting. This case presents the minimal nature of the command in § 3583(d) to the unique situation where a single act is relevant to two “consider” substance abuse treatment programs in lieu of dimensions of the sentencing guidelines analysis. The district prison. See United States v. Bolenbaugh, No. 96-1499, 1996 court used the defendant’s prior convictions to determine both WL 557793 (6th Cir. Sept. 30, 1996). Again, we assume the the base offense and his criminal history category. In United district court gave due consideration to alternatives to prison States v. Campbell, 967 F.2d 20, 25 (2d Cir. 1992), the for the reasons noted above. Second Circuit found that the use of a defendant’s prior conviction for an aggravated felony in defining the instant The defendant argues that this panel should overturn the offense and in calculating the defendant’s criminal history Hancox decision in light of the interpretation of 18 U.S.C. was not impermissible double counting. The Campbell Court § 3583 by Katherine M. Goodwin, Assistant General Counsel, noted that Administrative Office of the United States Courts. In response to an inquiry by the district court’s probation office, it may be appropriate to count a single factor both in Goodwin stated that her office had recommended that United assessing the defendant’s criminal history category and States probation officers classify positive drug tests as Grade in calculating the applicable offense level since the two C violations under section 7B1.1 of the sentencing guidelines. She also stated that her office believed that positive drug tests were evidence of, but not necessarily determinative of 2 possession. She stated that she believed that a court should The defendant, however, directs us to no case law which mandates have discretion to decide whether a positive drug test that the district court consider only federal law. In fact, the guidelines reference federal, state and local law in their definition of the categories constitutes possession for revocation purposes. Goodwin, of supervised release violations. U.S.S.G. § 7B1.1. We address the however, acknowledged that the Sixth Circuit, in the Hancox district court’s analysis under state law supra. case, greatly restricted the district court’s discretion. While Goodwin argues that there are grounds to support the 3 The defendant had been convicted of three drug offenses, including defendant’s contention that Hancox should be overturned, we possession of a controlled substance, prior to his positive drug screen.

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believe that the Hancox court considered all of the arguments First, he contends that while his positive drug test is a Goodwin raises in reaching its decision. In particular, violation of the terms of his supervised release, it is not a Goodwin cites the 1994 amendments to section 3583(d) crime. Second, he argues that the district court’s which gave courts greater discretion to consider whether to consideration of his prior criminal conduct in determining revoke supervised release when a defendant fails a drug test. whether his current conduct constitutes a felony is She also notes that the guidelines reflect greater flexibility. impermissible double counting. Because the defendant’s The Hancox court was aware of the flexibility provided by the prior criminal activity is encompassed in the district court’s guidelines and still chose to hold that use constitutes computation of his criminal history, he argues the district possession and mandates revocation of supervised release. court cannot use this same information to enhance the conduct See 49 F.3d at 224-225 (citing United States v. Pettigrew, for which he is being sentenced. The defendant requests that Nos. 92-6621/6222, 1993 WL 322667 (6th Cir. Aug. 24, this court remand his case for resentencing even though his 1993), which notes that the sentencing guidelines permit, but sentence of 12 months incarceration falls into both guideline do not require, the court to infer possession from positive ranges. Because this court cannot determine what sentence drug tests and holding that the “defendant’s admitted use of the district court would have imposed had it applied the Grade drugs necessarily required possession”). In addition, other C guideline range defendant argues that remand is necessary. panels which have considered this issue after the amendments to section 3583(d) became effective have found that Hancox A Grade B offense is identified as “conduct constituting remains the law of the Circuit. See, e.g., United States v. any other federal, state, or local offense [not encompassed in Graham, No. 97-5195, 1997 WL 705070, *1 (6th Cir. Nov. 6, Grade A] punishable by a term of imprisonment exceeding 1997) (holding that Hancox governs in a case where the one year.” U.S.S.G. § 7B1.1(a)(2) (1998). A Grade C district court revoked the defendant’s supervised release on offense consists of “conduct constituting (A) a federal, state, January 31, 1997); United States v. McDowell, No. 96-5924, or local offense punishable by a term of imprisonment of one 1996 WL 665611 (6th Cir. Nov. 14, 1996) (similar). We year or less; or (B) a violation of any other condition of believe that this Circuit should adhere to the holding in supervision.” U.S.S.G. § 7B1.1(a)(3) (1998). Defendant Hancox; therefore, we affirm the decision of the district court contends that his positive drug test should be classified as a that defendant possessed cocaine. 18 U.S.C. § 3583(d), Grade C violation because it constituted a violation of a which provides an exception to mandatory revocation when condition of his supervision, but did not constitute a crime. a failed drug test is the source of the possession, seems to In support of his argument, he again points to the Goodwin have been enacted to remove any undue strictness of requiring letter. Goodwin states that a positive drug test is evidence of, revocation in all instances and to restore discretion to the but not dispositive of the commission of a crime. As stated district judge. above, we reject the Goodwin letter and adhere to the holding in Hancox. The defendant’s positive drug test combined with B. Double Counting his admission of use of a controlled substance mandates a finding that the defendant possessed drugs. Because The defendant also argues that the district court erred in possession of drugs is a crime, the district court erred in finding that the applicable guideline range was 12-18 months. classifying the defendant’s conduct as a Grade B violation He contends that his use of cocaine constituted a Grade C only if we find that defendant’s possession would be subject offense, rather than a Grade B offense, and that the correct to punishment of one year or less of imprisonment. guideline range is 6-12 months. The defendant offers two theories to support his contention that the district court erred.