noting that, while “drug use indicated by urinalysis is only circumstantial evidence of drug possession,” it is sufficient to establish a violation because “a court can revoke probation when it is reasonably satisfied that the probation conditions have been violated, without the government being required to present proof beyond a reasonable doubt that the defendant committed the alleged acts”
How later courts described this case
- noting that, while “drug use indicated by urinalysis is only circumstantial evidence of drug possession,” it is sufficient to establish a violation because “a court can revoke probation when it is reasonably satisfied that the probation conditions have been violated, without the government being required to present proof beyond a reasonable doubt that the defendant committed the alleged acts”
- adopting a narrow definition of “notwithstanding” and noting that “[c]ourts should attempt to reconcile two seemingly conflicting statutory provisions whenever possible, instead of allowing one provision effectively to nullify the other provision.”
- concluding that "original sentence" refers to original incarceration available under the guidelines at the time of the initial sentencing
- indicating that defendant need not be formally charged or convicted of drug possession for the conduct to be considered at a probation revocation hearing
Written by the judges who cited it.
The opinion
GREENBERG, Circuit Judge,
concurring.
I concur in the result reached by the majority but do not join in the opinion for the following reasons. The petition charging Gordon with violation of probation was predicated upon her failure to report to the probation office as directed and her failure to participate in urinalysis testing. The formal charges were never broadened to include drug possession, for as the majority indicates, at 429:
At the outset, Gordon contends that her drug use should not have been considered by the district court at the August 1991 hearing, since the probation violation petition did not formally charge her with use or possession of a controlled substance. During the hearing, the district court prohibited the government from amending the petition to include such a charge. However, the court allowed the two positive urine tests and Gordon’s admitted drug use to ‘be taken as evidence’ of a probation violation, although the court precluded consideration of the drug use itself.
It seems to me that, in view of Fed. R.Crim.P. 32.1(a)(2)(A) requiring “written notice of the alleged violation,” the decision of the district court not to allow the amendment precluded it from relying on the proviso to 18 U.S.C. § 3565 (a) which reads as follows:
Notwithstanding any other provision of this section, if a defendant is found by the court to be in possession of a controlled substance, thereby violating the condition imposed by section 3563(a)(3), the court shall revoke the sentence of probation and sentence the defendant to not less than one-third of the original sentence.
While I do not suggest that a defendant’s drug use or possession cannot be considered at a hearing for a violation of probation as bearing on the appropriate disposition, I would hold that a defendant to be subject to the mandatory penalty in the proviso must be charged with a substance possession violation. That, of course, did not happen here.
If the proviso is not considered, then the resentencing would have been subject to 18 U.S.C. § 3565 (a)(2), which provides that a *434 court may sentence a defendant for a violation of a condition of probation to a sentence which was available at the time of the initial sentencing. Therefore the sentence would, as the majority explains, have a four-month limit. While my result would not require the minimum sentence of one and one-third months the majority finds mandated, I nevertheless can join in the judgment, as any question of the service of that sentence is moot because Gordon served a term of more than four months from when she was incarcerated until we ordered her released following oral argument, and I can discern no collateral consequences from the imposition of the minimum term.
In these circumstances I see no need to consider the meaning of the proviso, and therefore I do not join in the majority opinion with respect to its criticism of United States v. Corpuz, 953 F.2d 526 (9th Cir.1992). I do point out, however, that unless the reference to “one-third of the original sentence” in the proviso to 18 U.S.C. § 3565 (a) includes a period of probation, the proviso would certainly have very little impact, as it would require a court to sentence a defendant on probation found in possession of a controlled substance to only one-third of the upper limit of the initially available guideline range. Since probation is available only when the range results in a modest possible period of incarceration, I am afraid that the majority’s reasoning may result in frustrating the purpose of the proviso. Finally, I observe that as a simple matter of plain meaning, I do not understand how the term “original sentence” in the proviso can be equated to the maximum available sentence under the guideline range in cases such as this where the maximum available sentence has not been imposed. To me the term “original sentence” means an actual as contrasted to an “available” sentence, the term used in 18 U.S.C. § 3565 (a)(2).