1

The Honorable Linda R. Reade, Chief Judge, United States District Court for

the Northern District of Iowa. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-3181

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Northern District of Iowa. 

Gary John Cates, * 

*

Appellant. *

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Submitted: May 10, 2010

Filed: July 30, 2010

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Before RILEY, Chief Judge, JOHN R. GIBSON and MURPHY, Circuit Judges.

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RILEY, Chief Judge.

While on supervised release for drug and firearms charges, Gary John Cates

tested positive on three separate occasions for marijuana use. The district court1

revoked Cates’s supervised release and sentenced him to 11 months imprisonment and

3 years supervised release. Cates appeals his revocation sentence, and we affirm. 
2

Cates’s urine sample was sent to a laboratory for further testing. The

laboratory reported Cates tested negative for marijuana. The probation officer

suggested the discrepancy was due to the laboratory reporting negative results when

the level of marijuana fell below fifteen nanograms per milliliter, and the probation

office uses a lower cutoff level.

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I. BACKGROUND

In August 1997, Cates pled guilty to (1) being a felon in possession of a

firearm, (2) possession of a sawed-off shotgun, (3) distribution of methamphetamine,

and (4) conspiracy to distribute methamphetamine. Cates was sentenced to concurrent

terms of 144 months and 120 months imprisonment followed by 4 years of supervised

release. Cates began serving his term of supervised release in January 2008. In April,

May, and June 2009, Cates tested positive for marijuana use. In July 2009, Cates’s

probation officer filed a petition to revoke Cates’s supervised release, and Cates was

summoned to appear before the district court. On the morning of the revocation

hearing, Cates tested presumptively positive for marijuana,2

 causing the district court

to continue the hearing to September 2009.

A week before the second hearing, and on the day of the hearing, Cates again

tested presumptively positive for marijuana. At the hearing, Cates admitted he used

marijuana twice in early April 2009. Cates, who has cancer, testified his oncologist

told him “they were using marijuana, experimenting with marijuana” to alleviate the

pain associated with cancer. Cates mentioned this to a friend who came to visit in

April 2009, and the friend happened to have marijuana in his possession. Cates

contends he smoked the marijuana with his friend, and again the next day with his

friend’s son, to alleviate his cancer-related pain. Cates denied he “deliberately” or

“knowingly” used marijuana after April 2009. Cates testified he smoked a pipe every

morning as part of a Native American religious ritual. Cates claimed he had borrowed

a pipe from his son in March, and later learned his son’s roommates had used the pipe

to smoke marijuana. Cates suggested this may explain why he was testing positive

for marijuana. Cates reported he had not used the pipe in over a month.
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The district court did not believe Cates’s explanation for the positive marijuana

tests and determined Cates possessed the marijuana which constituted a grade A

violation of supervised release. Because Cates was on supervised release for a class

A felony and had a criminal history category of VI, the district court calculated

Cates’s advisory United States Sentencing Guidelines (Guidelines or U.S.S.G.) range

as 51 to 63 months imprisonment. See U.S.S.G. § 7B1.4(a)(2). After considering all

of the 18 U.S.C. § 3553(a) sentencing factors, the district court sentenced Cates to 11

months imprisonment and 3 years supervised release. The government queried

whether the district court would impose the same sentence if Cates’s possession of

marijuana were a grade C violation. The district court declared, “[E]ven if it were a

grade C as opposed to a grade A, my sentence would have been the same after

considering [the § 3553(a) factors].” 

Cates appeals his revocation sentence, arguing the district court erred in

(1) discrediting Cates’s explanation for the positive marijuana tests, (2) improperly

weighing the 18 U.S.C. § 3553(a) factors, (3) inadequately explaining Cates’s

sentence, and (4) imposing an unreasonable sentence. 

II. DISCUSSION

“We review a district court’s revocation sentencing decisions using the same

standards that we apply to initial sentencing decisions,” that is, abuse of discretion.

United States v. Miller, 557 F.3d 910, 915-16 (8th Cir. 2009) (citing United States v.

Cotton, 399 F.3d 913, 916 (8th Cir. 2005). 

In reviewing for abuse of discretion, we must first ensure that the court

committed no significant procedural error, such as improperly

calculating the sentence under the Guidelines, failing to consider relevant

18 U.S.C. § 3553(a) sentencing factors, imposing a sentence based on

clearly erroneous facts, or failing to adequately explain the reasons for

the sentence imposed. 

Id. (citing Gall v. United States, 552 U.S. 38, 51 (2007). 
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A. Credibility Determination

Cates first contends the district court erred in disbelieving Cates’s explanation

for the positive marijuana tests. Cates suggests the district court’s credibility

determination was based on speculation and factual error. The district court found

Cates’s explanation was “unpersuasive and just an excuse” because Cates had used

marijuana on and off for several years “and he would certainly be able to feel the

effects of marijuana if he smoked.” The district court also expressed doubt Cates

would not have tested positive for marijuana until April if he started using the

allegedly marijuana tainted pipe in March. The district court declared, “That makes

no sense. I don’t believe it.” 

“Witness credibility is quintessentially a judgment call and virtually

unassailable on appeal.” United States v. Bolden, 596 F.3d 976, 982 (8th Cir. 2010)

(internal quotation marks omitted). “Our review, then, is not to determine what

conclusion we might reach in the case were we to sit as the finders of fact, but to

determine whether the district court’s factual findings amount to clear error.” United

States v. Jones, 539 F.3d 895, 897 (8th Cir. 2008). We conclude the district court had

valid and sufficient reasons to disbelieve Cates’s explanation for the positive

marijuana tests, and, therefore, did not clearly err in finding Cates possessed

marijuana. 

B. Procedural Error

Before we address Cates’s substantive reasonableness argument, we must first

address the district court’s Guidelines calculations. Cates asserts, and the government

concedes, the district court procedurally erred in finding Cates’s possession of

marijuana was a grade A violation of supervised release. Under U.S.S.G.

§ 7B1.1(a)(1), controlled substance offenses punishable by more than one year of

imprisonment are grade A violations, but under § 4B1.2(b), mere possession of a

controlled substance does not constitute a controlled substance offense. See U.S.S.G.
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§ 4B1.2(b); see also U.S.S.G. § 7B1.1 cmt. n.3 (referring to § 4B1.2(b)’s definition

of a controlled substance offense). Cates had prior drug convictions, making his April

2009 drug possession offense a felony and a grade B violation of supervised release.

See 21 U.S.C. § 844(a); U.S.S.G. § 7B1.1(a)(2). Thus, the district court procedurally

erred in finding it was a grade A violation. However, because the district court

declared it would impose the same sentence even if Cates’s possession of marijuana

were not a grade A violation, the district court’s procedural error was harmless. See

United States v. Shuler, 598 F.3d 444, 447 (8th Cir. 2010) (finding a district court’s

procedural error in imposing an upward departure was harmless where the district

court explicitly stated it would have imposed the same sentence regardless of whether

the district court had imposed the upward departure).

Cates also contends the district court procedurally erred by improperly

weighing the 18 U.S.C. § 3553(a) factors and inadequately explaining the basis of its

sentence. Because Cates did not raise these objections in the district court, we review

for plain error. See Miller, 557 F.3d at 916. “To establish plain error, [Cates] must

prove that (1) there was error, (2) the error was plain, and (3) the error affected his

substantial rights.” Id. “We will exercise our discretion to correct such an error only

if the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings.’” Id. (quoting United States v. Olano, 507 U.S. 725, 732 (1993)). We

find no plain error in the district court’s explanation or weighing of the factors. See

United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (“‘[W]e do not

require a district court to provide a mechanical recitation of the § 3553(a) factors

when determining a sentence. Rather, it simply must be clear from the record that the

district court actually considered the § 3553(a) factors in determining the sentence.’”

(quoting United States v. Walking Eagle, 553 F.3d 654, 659 (8th Cir. 2009))); see also

Rita v. United States, 551 U.S. 338, 358-59 (2007). 

C. Substantive Reasonableness

Finally, Cates contends the district court imposed a substantively unreasonable

sentence. Cates had prior drug convictions, making his April 2009 drug possession
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offense a felony. See 21 U.S.C. § 844(a). Therefore, Cates committed a grade B

violation, and his advisory Guidelines range was 21 to 27 months imprisonment. See

U.S.S.G. §§ 7B1.1(a)(2) and 7B1.4(a). “[G]iv[ing] due deference to the district

court’s decision that the § 3553(a) factors, on a whole, justify” Cates’s sentence, Gall,

552 at 51, our careful review of the record and Cates’s sentence reveals no abuse of

the district court’s considerable sentencing discretion and no basis for concluding

Cates’s below-Guidelines sentence is substantively unreasonable. 

III. CONCLUSION

We affirm the district court’s judgment. 

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