United States of America v. Jack Brent Crace

1
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 S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
J ACK BRENT C RACE ,
Defendant-Appellant.
;>

1
No. 99-5364
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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2 United States v. Crace No. 99-5364
_________________
OPINION
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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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10 United States v. Crace No. 99-5364
In addition to its finding that the defendant’s conduct
constituted a felony under federal law, the district court also
found that the defendant’s positive drug test constituted a
felony under state law. Under Kentucky law, possession of a
controlled substance is a felony even if it is the individual’s
first offense. See Ky. Rev. Stat. Ann. § 218A.1415(2)(b)
(Baldwin 1998). Because defendant’s instant conduct, simple
possession, divorced from his prior criminal activity,
constitutes a Class D felony, punishable by at least one year
of imprisonment, we believe that the district court properly
classified the defendant’s positive drug test as a Grade B
violation.
III. Conclusion
For the foregoing reasons, we affirm the decision of the
district court.
No. 99-5364 United States v. Crace 3
II. Discussion
Defendant raises two issues on appeal. He argues that the
district court was not required to revoke his term of
supervised release and that the district court abused its
discretion by determining that it was mandated to incarcerate
the defendant. He also argues that the district court erred in
applying the sentencing guidelines. He contends that the
district court’s finding that his conduct was a Grade B, rather
than a Grade C offense constituted impermissible double
counting. In response, the government states that the district
court did not abuse its discretion in revoking the defendant’s
supervised release because it was mandated to do so by the
case law of this circuit. The government also argues that the
district court did not err in sentencing the defendant to 12
months imprisonment because the district court’s
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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4 United States v. Crace No. 99-5364
1We note defendant had three prior drug convictions. Also, the court
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
rehabilitation.” The court did not extend supervised release saying, “I
don’t want any of my probation officers to have anything further to do
with defendant.”
possession, a Grade B violation, which, under 18 U.S.C.
§ 3583(g), requires revocation of supervised release defendant
argues that the court abused its discretion. We believe that
the district court was correct in finding that it was required by
18 U.S.C. § 3583(g) to revoke the defendant’s term of
supervised release upon the defendant’s positive drug test and
admission of the use of a controlled substance unless
defendant could come under the exception in 18 U.S.C.
§ 3583(d).
We note that 18 U.S.C. § 3583(d) now provides that
[t]he court shall consider whether the availability of
appropriate substance abuse treatment programs, or an
individual’s current or past participation in such
programs, warrants an exception in accordance with
United States Sentencing Commission guidelines from
the rule of section 3583(g) when considering any action
against a defendant who fails a drug test.
For individuals like Crace who have failed a drug test, the
district court must consider whether an appropriate substance
abuse program was available, and whether enrollment in such
a program was an option preferable to prison. We assume
that the district judge considered and rejected this option.
Crace did not raise this issue on appeal, so it is waived;
moreover, we do not require magic words in the record of the
sentencing hearing indicating that substance abuse treatment
was considered in order to uphold the district court’s prison
sentence.1
This case is governed by the holding set forth in United
States v. Hancox, 49 F.3d 223 (6th Cir. 1995) with respect to
No. 99-5364 United States v. Crace 9
measure different things. The offense level represents a
judgment as to the wrongfulness of the particular act.
The criminal history category principally estimates the
likelihood of recidivism.
Id. at 24 (internal citations omitted). The Second Circuit
noted that the statute under which the defendant was
convicted, 8 U.S.C. § 1326, provided for an increased
maximum sentence when the defendant had been convicted
of an aggravated felony, as opposed to a simple felony. The
court stated that this indicated Congress’ conclusion that the
defendant’s prior commission of an aggravated felony was
relevant to measuring the severity of the instant offense. Id.
Other circuits also have addressed the use of a defendant’s
prior felony conviction in calculating both the offense level
and the criminal history and found this dual use permissible.
See United States v. Alessandroni, 982 F.2d 419, 423 (10th
Cir. 1992) (holding that the district court properly used the
defendant’s prior conviction as the predicate felony under
§ 922(g)(1) and as a prior sentence in the defendant’s criminal
history); United States v. Wycoff, 918 F.2d 925, 927 (11th Cir.
1990) (same).
We find the rationales of these courts persuasive and hold
that the district court did not engage in impermissible double
counting. Like the statute in Campbell, 21 U.S.C. § 844(a)
provides for a higher maximum sentence for defendants who
have prior convictions for drug offenses. We think that this
evidences Congress’ belief that a defendant’s prior drug
convictions affect the severity of a subsequent drug
possession offense. The district court’s use of Crace’s prior
drug convictions to establish the offense level of his positive
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
and the defendant’s potential for recidivism. Because the
base offense and the criminal history category are intended to
reflect different concerns, we hold that the district court
properly considered the defendant’s prior convictions in its
sentencing.

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8 United States v. Crace No. 99-5364
2The defendant, however, directs us to no case law which mandates
that the district court consider only federal law. In fact, the guidelines
reference federal, state and local law in their definition of the categories
of supervised release violations. U.S.S.G. § 7B1.1. We address the
district court’s analysis under state law supra.
3The defendant had been convicted of three drug offenses, including
possession of a controlled substance, prior to his positive drug screen.
In determining that the defendant’s conduct constituted a
felony, thus a Grade B violation, the district court considered
both state and federal law. The defendant argues that the
district court should be guided by federal, not state law and
that simple possession is not a felony under federal law.2 See
21 U.S.C. § 843(a) (simple possession is subject to
punishment of not more than one year imprisonment). Under
federal law, the district court would be required to consider
the defendant’s prior drug convictions3 in order to find that
his instant offense was a felony. Because the defendant’s
prior convictions affect the calculation of his criminal history,
the defendant argues that the district court’s consideration of
his prior convictions in defining the elements of the instant
offense was error.
We disagree with the defendant’s contention that the
district court engaged in double counting. This case presents
the unique situation where a single act is relevant to two
dimensions of the sentencing guidelines analysis. The district
court used the defendant’s prior convictions to determine both
the base offense and his criminal history category. In United
States v. Campbell, 967 F.2d 20, 25 (2d Cir. 1992), the
Second Circuit found that the use of a defendant’s prior
conviction for an aggravated felony in defining the instant
offense and in calculating the defendant’s criminal history
was not impermissible double counting. The Campbell Court
noted that
it may be appropriate to count a single factor both in
assessing the defendant’s criminal history category and
in calculating the applicable offense level since the two
No. 99-5364 United States v. Crace 5
whether the results of a failed drug test constitute possession.
In Hancox, a panel of this Circuit held that use of a controlled
substance constitutes possession under 18 U.S.C. § 3583(g).
Id. at 224.
The part of § 3583(d) discussed above was not in effect at
the time of Hancox’s sentencing by the district court, so it did
not affect the ruling on appeal. However, the district court
opinion in Hancox would be upheld today, under § 3583(d) as
it has been amended. This circuit’s ruling in Hancox on what
constitutes possession stands, but insofar as the sentencing
guidelines are rooted in the statutory commands of the
amended § 3583(d), they are not merely advisory. Hence,
contrary to cases like United States v. Bolenbaugh, it is not
the advisory nature of the section 7 guideline policy
statements that make a prison sentence acceptable, but rather
the minimal nature of the command in § 3583(d) to
“consider” substance abuse treatment programs in lieu of
prison. See United States v. Bolenbaugh, No. 96-1499, 1996
WL 557793 (6th Cir. Sept. 30, 1996). Again, we assume the
district court gave due consideration to alternatives to prison
for the reasons noted above.
The defendant argues that this panel should overturn the
Hancox decision in light of the interpretation of 18 U.S.C.
§ 3583 by Katherine M. Goodwin, Assistant General Counsel,
Administrative Office of the United States Courts. In
response to an inquiry by the district court’s probation office,
Goodwin stated that her office had recommended that United
States probation officers classify positive drug tests as Grade
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
possession. She stated that she believed that a court should
have discretion to decide whether a positive drug test
constitutes possession for revocation purposes. Goodwin,
however, acknowledged that the Sixth Circuit, in the Hancox
case, greatly restricted the district court’s discretion. While
Goodwin argues that there are grounds to support the
defendant’s contention that Hancox should be overturned, we

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6 United States v. Crace No. 99-5364
believe that the Hancox court considered all of the arguments
Goodwin raises in reaching its decision. In particular,
Goodwin cites the 1994 amendments to section 3583(d)
which gave courts greater discretion to consider whether to
revoke supervised release when a defendant fails a drug test.
She also notes that the guidelines reflect greater flexibility.
The Hancox court was aware of the flexibility provided by the
guidelines and still chose to hold that use constitutes
possession and mandates revocation of supervised release.
See 49 F.3d at 224-225 (citing United States v. Pettigrew,
Nos. 92-6621/6222, 1993 WL 322667 (6th Cir. Aug. 24,
1993), which notes that the sentencing guidelines permit, but
do not require, the court to infer possession from positive
drug tests and holding that the “defendant’s admitted use of
drugs necessarily required possession”). In addition, other
panels which have considered this issue after the amendments
to section 3583(d) became effective have found that Hancox
remains the law of the Circuit. See, e.g., United States v.
Graham, No. 97-5195, 1997 WL 705070, *1 (6th Cir. Nov. 6,
1997) (holding that Hancox governs in a case where the
district court revoked the defendant’s supervised release on
January 31, 1997); United States v. McDowell, No. 96-5924,
1996 WL 665611 (6th Cir. Nov. 14, 1996) (similar). We
believe that this Circuit should adhere to the holding in
Hancox; therefore, we affirm the decision of the district court
that defendant possessed cocaine. 18 U.S.C. § 3583(d),
which provides an exception to mandatory revocation when
a failed drug test is the source of the possession, seems to
have been enacted to remove any undue strictness of requiring
revocation in all instances and to restore discretion to the
district judge.
B. Double Counting
The defendant also argues that the district court erred in
finding that the applicable guideline range was 12-18 months.
He contends that his use of cocaine constituted a Grade C
offense, rather than a Grade B offense, and that the correct
guideline range is 6-12 months. The defendant offers two
theories to support his contention that the district court erred.
No. 99-5364 United States v. Crace 7
First, he contends that while his positive drug test is a
violation of the terms of his supervised release, it is not a
crime. Second, he argues that the district court’s
consideration of his prior criminal conduct in determining
whether his current conduct constitutes a felony is
impermissible double counting. Because the defendant’s
prior criminal activity is encompassed in the district court’s
computation of his criminal history, he argues the district
court cannot use this same information to enhance the conduct
for which he is being sentenced. The defendant requests that
this court remand his case for resentencing even though his
sentence of 12 months incarceration falls into both guideline
ranges. Because this court cannot determine what sentence
the district court would have imposed had it applied the Grade
C guideline range defendant argues that remand is necessary.
A Grade B offense is identified as “conduct constituting
any other federal, state, or local offense [not encompassed in
Grade A] punishable by a term of imprisonment exceeding
one year.” U.S.S.G. § 7B1.1(a)(2) (1998). A Grade C
offense consists of “conduct constituting (A) a federal, state,
or local offense punishable by a term of imprisonment of one
year or less; or (B) a violation of any other condition of
supervision.” U.S.S.G. § 7B1.1(a)(3) (1998). Defendant
contends that his positive drug test should be classified as a
Grade C violation because it constituted a violation of a
condition of his supervision, but did not constitute a crime.
In support of his argument, he again points to the Goodwin
letter. Goodwin states that a positive drug test is evidence of,
but not dispositive of the commission of a crime. As stated
above, we reject the Goodwin letter and adhere to the holding
in Hancox. The defendant’s positive drug test combined with
his admission of use of a controlled substance mandates a
finding that the defendant possessed drugs. Because
possession of drugs is a crime, the district court erred in
classifying the defendant’s conduct as a Grade B violation
only if we find that defendant’s possession would be subject
to punishment of one year or less of imprisonment.

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