United States District Court, Central District of Illinois, Springfield Division
August 13, 1999
JAMES CLARO, DEFENDANT.
The opinion of the court was delivered by: Richard Mills, District Judge.
Is the Wright case right?
A dispute about precedent.
Defendant says positive drug tests don't imply possession.
The Court follows the weight of well-supported authority.
The Defendant is wrong.
This cause is before the Court following the hearing on revocation of
supervised release. For the reasons given below, the Court revokes
Defendant's supervised release.
On September 10, 1997 Defendant was indicted on a charge of
distribution of hydromorphone. He pleaded guilty and on January 1, 1998,
Defendant was sentenced to 2 months imprisonment and 3 years supervised
Defendant's term of supervised release began on January 15, 1998. But
Defendant did not comply with the conditions imposed on his supervised
release. Thus, on June 14, 1999, the Government filed a Petition for
Summons for Offender Under Supervised Release. The petition alleged that
on November 4, 1998, Defendant had submitted a urine sample that tested
positive for use of cocaine. Then, on April 29, 1999, Defendant submitted
urine samples that tested positive for use of cannibus.
The Dispositional Report states that Defendant's violation is a grade B
violation. Defendant has filed an objection to the Dispositional Report
and contends that his positive tests for cocaine and cannibus constitute
only grade C violations.
The policy statements contained in the Sentencing Guidelines contain
three grades of violations of supervised release. Grade A violations are
the most serious, and they include offenses such as controlled substance
offenses, as defined at 4B1.2, and offenses involving firearm possession
and other offenses punishable by a "term of imprisonment exceeding twenty
years." 7B1.1(a)(1). Grade B violations, by contrast, are those offenses
(under federal, state or local law) that are punishable by terms of
imprisonment in excess of one year. U.S.S.G. § 7B1.1(a)(2). Finally,
grade C violations, the least serious, include those offenses that are'
punishable (under federal, state or local law) for a period of less than a
year. 7B1.1(a)(3) Grade C violations also include those offenses that are
simply violations of the terms of supervised release. Id.
In arguing that he committed only a grade C violation when he tested
positive for drugs, Defendant relies exclusively upon the case of United
States v. Wright, 92 F.3d 502 (7th Cir. 1996). In that case, a defendant
violated his supervised release when he was arrested and charged with
possession with intent to distribute 23 grams of crack cocaine and when he
was found with a handgun. The District Judge determined that the
defendant had committed several grade A violations and sentenced the
defendant to 44 months imprisonment after revoking his supervised
The reviewing court's panel found the District Court's conclusion that
defendant had committed a grade A violation to be insufficiently
supported. Because the District Judge found only possession, the Wright
panel found that remand was appropriate.
Oddly, however, the Wright panel also asserts that "simple possession [of
the cocaine and other drugs] would support only a grade C violation."
Even more surprising is the later assertion that "testing positive for
drugs" is "classified as grade C under 7B1.1(a)(3)."
But, as the lack of citation indicates, these propositions are quite
novel. First, the panel apparently assumed that all simple possession
offenses are properly classified as grade C offenses. Such is not the
case. The Wright opinion did not address the fact that certain possession
offenses could be, and have been, properly categorized as grade B
offenses. See United States v. Young, 41 F.3d 1184, 1186 (7th Cir. 1994)
(citing § 21 U.S.C. 844(a), in affirming lower court's finding that
"simple possession" was a grade B violation). The Young case was not
mentioned in Wright.
The other puzzling aspect of the Wright opinion is its reliance on the
proposition that a positive test for cocaine supports only a grade C
violation. While it is technically true that the mere positive test
itself violates only a term of supervised release, it is equally and more
importantly true that the positive test results are a perfectly valid
basis upon which to conclude that a defendant used, and hence possessed,
drugs. See Young at 1187. Perhaps this reasonable inference can be called
into question by a defendant's showing that he involuntarily ingested
drugs. But the opinion in Wright does not suggest this possibility and in
fact does not address the long line of authority (including Young) that
have concluded that positive tests for drug use support a finding that
the drugs were in fact used and possessed. See, e.g. United States v.
Blackston, 940 F.2d 877 (3rd Cir.); United States v. Clark, 30 F.3d 23,
25 (4th Cir. 1994); United States v. Courtney, 979 F.2d 45, 49 (5th Cir.
1992); United States v. Almand, 992 F.2d 316, 318 (11th Cir. 1993).
Thus, it appears that the rather confusing Wright opinion is not the
basis for a dramatic change in prior authority and the Court concludes
that the Wright opinion intended no such change. In light of Defendant's
positive drug tests and his own admission of drug use, the Court finds
that he did in fact possess cocaine and cannibus.
In addition, this possession is properly categorized as a grade B
violation, since under Illinois law this possession would be punishable
for a term of up to 3 years. 720 ILCS 570/402(c). Defendant's criminal
history category is I. Thus, under the policy statements, this results in
a range of 4 - 10 months imprisonment.
Ergo, in light of the circumstances of this case, including the
repeated violations committed by Defendant, the Court finds that a 10
month term of imprisonment is appropriate. The Court strongly recommends
to the Bureau of Prisons that Defendant be housed in a facility with an
effective and strict drug treatment program. The Court denies Defendant's
motion for a one-day suspension of execution of the sentence.
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