*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

JUN 7 2004

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 03-7116

v. E.D. Oklahoma

JOHN WAYNE PINCKARD,

Defendant - Appellant.

(D.C. No. 95-CR-49-P)

ORDER AND JUDGMENT *

Before BRISCOE , ANDERSON , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34 (a)(2); 10th Cir. R. 34.1(G). This cause is

therefore ordered submitted without oral argument.
-2-

John Wayne Pinckard appeals the district court’s revocation of his term of

supervised release, arguing the court erred in finding he possessed a controlled

substance based on a single positive urinalysis.

Pinckard was originally sentenced to sixty months’ imprisonment, followed

by four years of supervised release, having pled guilty to a charge of drug

conspiracy, in violation of 21 U.S.C. § 846. Pinckard’s term of supervised

release began on October 15, 1999. As part of the conditions of his supervised

release, Pinckard underwent periodic drug testing. He tested positive for some

combination of amphetamine, methamphetamine, and d-methamphetamine three

times in 2000, twice in 2001, and once in 2003. Following the last of these,

reported on August 28, 2003, Pinckard’s probation officer requested that the court

initiate revocation proceedings. The officer stated in his petition that:

The defendant completed the 500 hour Comprehensive Drug

Treatment Program during his last period of incarceration. In

addition, he has been participating in extensive outpatient treatment

during this period of supervised release. Therefore, with the

exhaustion of these viable treatment options, it shall be the

recommendation of this officer that the supervision of Mr. Pinckard

be revoked.

Pet. for Warrant or Summons for Offender Under Supervision at 2, R. Vol. I, tab

56. Pinckard filed a response to the officer’s petition, arguing the court should

not take into account the first five positive drug tests because they had already

been considered in prior revocation actions. Following a hearing, the court found
-3-

that Pinckard had violated a mandatory condition of his supervised release by

being in unlawful possession of a controlled substance. In making this finding,

the court relied only on the most recent failed drug test. The court revoked

Pinckard’s term of supervised release and sentenced him to thirty-six months’

imprisonment, explaining that it “considered the additional positive [drug tests]

. . . as aggravation, as the reasons for imposing this sentence at the top of the

statutory [range].” Hr’g Tr. at 23, R. Vol. II.

On appeal, Pinckard argues that the district court erred in its application of

18 U.S.C. § 3583(g)(1) because, he contends, a positive drug test cannot form the

basis for a finding of unlawful possession of a controlled substance. We

considered and rejected this argument in United States v. Hammonds , No.

03-7081, ___ F.3d ___ (10th Cir. 2004). Pinckard also argues that the district

court should have ordered him to enroll in a drug treatment program, in accord

with 18 U.S.C. § 3583(d), rather than revoking his term of supervision. Having

carefully reviewed the record, we conclude the district court did not abuse its

discretion in imposing revocation rather than enrollment in a drug treatment

program. The district court’s revocation order is therefore AFFIRMED.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge