# United States v. Theophilus Blackston

> Court of Appeals for the Third Circuit · July 29, 1991 · 940 F.2d 877

URL: https://www.frixlaw.com/law-library/cases/9481906

## Case

- **Full name:** UNITED STATES of America v. Theophilus BLACKSTON, Appellant
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** July 29, 1991
- **Citations:** 940 F.2d 877; 1991 U.S. App. LEXIS 16626; 1991 WL 136792
- **Precedential status:** Published
- **Opinion:** Concurrence by Nygaard
- **Judges:** Becker, Nygaard, Green
- **Cited by:** 183 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9481906

## How later opinions describe it (automated extraction)

- holding that a statutory maximum three-year imprisonment term was not a plainly unreasonable sentence for a defendant who violated the conditions of supervised release, even though the United States Sentencing Commission’s Policy Statement recommended a maximum sentence of 10 …
- holding that evidence of drug use could be considered circumstantial evidence of possession and upholding the district court's finding of possession based on three positive drug tests and the defendant's admission of use
- stating that defendant’s failed drug tests, “occurring immediately on the heels of his release from prison and relating directly to the conduct for which he originally was convicted, surely bespeak a breach of trust”
- holding that violations “occurring immediately on the heels of [a defendant’s] release from prison and relating directly to the conduct for which he originally was convicted[] surely bespeak a breach of trust”
- concluding that positive urinalysis is adequate proof of use, in part due to the lower burden of proof— preponderance of the evidence—at a supervised-release revocation hearing

## Opinion text

NYGAARD, Circuit Judge,
concurring.
I believe the primary issue before this court is quite simple: does voluntary drug use established solely by laboratory analysis constitute “possession” for purposes of 18 U.S.C. § 3583 (g)? That is the issue the Commission has asked the courts to decide. 1 That is the issue the district court decided. 2 That is what appellant contests. 3
I disagree with the majority view that “possession” is an ambiguous term as used in § 3583(g), such that resort to legislative history is required to decide this issue. I see no reason to agonize over the legislative history underlying Congress’ use of the term. Possession has a plain meaning. Either Blackston voluntarily possessed cocaine in the circumstances of this case, or he did not.
Second, I disagree with the majority’s effort to recognize what it calls the “flexibility inherent in the present scheme.” (At 886) The straightforward language contained in 3583(g) of Title 18 leaves little judicial flexibility. It states simply that if the defendant is found by the court to be in possession of a controlled substance it shall terminate his supervised release. Similarly, the Commission’s Application Note No. 5 does not grant judicial flexibility except to leave it to the courts to decide whether use established by laboratory analysis constitutes possession. Thus, I cannot see that either Congress or the Commission offers the judicial flexibility the majority creates.
Finally, I disagree with the majority’s conclusion that evidence of voluntary drug use is merely probative of possession, or merely has a tendency to make possession more probable. Under their view of “possession” under § 3583(g), a probationer intending drug use who is caught possessing drugs in hand necessarily loses his supervised release, whereas a probationer in similar circumstances who quickly ingests the same drugs unnoticed just before a search would qualify for judicial flexibility. Surely, Congress and the Commission did not intend § 3583(g) to treat preferentially those who, by design or happenstance, avoid a finding of drug possession by means of voluntary use. In my view, drug use established by laboratory analysis constitutes drug possession for purposes of § 3583(g).
The laboratory analysis in this case established that Blackston had drugs in his body. Blackston admits his voluntary use. With that, he should not be able to successfully argue he never possessed the drugs he voluntarily used. I would hold that laboratory analysis confirming illegal drug use alone constitutes “possession” for purposes of 18 U.S.C. § 3583 (g). 4
. Application Note No. 5 to Guidelines § 7B1.4 provides:
The Commission leaves to the court the determination of whether evidence of drug usage established solely by laboratory analysis constitutes possession ...
. The district court found that "the presence of cocaine in the urine [of Blackston] as evidenced by the urinalysis constitutes possession ...”
. Blackston contends on appeal that the district court erred and "submits that the district court’s finding of 'possession' cannot be predicated on laboratory analysis ... and/or admitted ‘use’ of controlled substances ...”
.So holding would establish the same bright line rule adopted in other circuits. United States v. Dillard, 910 F.2d 461, 464, n. 3 (7th Cir.1990) (Where, as here, use was confirmed by admission and lab analysis, the court concluded that knowing use of cocaine requires possession, even if momentarily.) United States v. Kindred, 918 F.2d 485, 465, n. 3 (5th Cir.1990) (use admitted and confirmed by lab analysis. The court following Dillard said "knowing use of drugs is akin to possession.”) See also, United States v. Graves, 914 F.2d 159, 161 (8th Cir.1990) (drug use equivalent to possession.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9481906. Public record. Not legal advice.