* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, th is panel has determined unanimously that oral argument would not materiallyassist 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 re vocation of his term of supervised release, arguing the court erred in find ing 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 gu ilty to a charge of drug conspiracy, in violation of 21 U.S.C. § 846. Pinck ard’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. Fo llowing the last of these, reported on August 28, 2003, Pinckard’s probation o fficer requested that the court initiate revocation proceedings. The officer state d in his petition that: The defendant completed the 500 hour Comprehensive Drug Treatment Program during his last period of incarce ration. In addition, he has been participating in extensive ou tpatient treatment during this period of supervised release. Therefor e, with the exhaustion of these viable treatment options, it sh all be the recommendation of this officer that the supervisionof Mr. Pinckard be revoked. Pet. for Warrant or Summons for Offender Under Supe rvision at 2, R. Vol. I, tab 56. Pinckard filed a response to the officer’s pet ition, arguing the court should not take into account the first five positive drug tests because they had already been considered in prior revocation actions. Follo wing 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 dru g test. The court revoked Pinckard’s term of supervised release and sentencedhim to thirty-six months’ imprisonment, explaining that it “considered the ad ditional positive [drug tests] . . . as aggravation, as the reasons for imposing t his 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 posi tive 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 a lso argues that the district court should have ordered him to enroll in a drug t reatment 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 dist rict court did not abuse its discretion in imposing revocation rather than enrol lment in a drug treatment program. The district court’s revocation order is therefore AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge