UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 95-5154

MARCUS LAMAR SMITH, a/k/a Champ

Smith,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of West Virginia, at Wheeling.

Frederick P. Stamp, Jr., Chief District Judge.

(CR-92-90)

Submitted: March 12, 1996

Decided: March 28, 1996

Before HALL, MURNAGHAN, and WILKINS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Paul M. McKay, McKAY & McKAY, Wheeling, West Virginia, for

Appellant. William D. Wilmoth, United States Attorney, Sam G.

Nazzaro, Assistant United States Attorney, Wheeling, West Virginia,

for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Marcus Lamar Smith appeals the district court order revoking his

supervised release and imposing a sentence of eight months. Smith

contends that the district court erred in finding that positive urinalyses

for drugs, by itself, was sufficient to establish knowing possession of

a controlled substance during his supervised release in violation of 18

U.S.C.A. § 3583(g) (West Supp. 1995). He further maintains that the

Government had a duty to prove that second-hand smoke did not

cause his positive urinalyses and the Government did not meet that

burden.

This court must review the district court's finding for an abuse of

discretion. United States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992).

The district court had only to find a violation of a condition of

Smith's supervised release by a preponderance of the evidence. 18

U.S.C. § 3583(e)(3) (West Supp. 1995).

Section 3583(g) provides:

If the defendant is found by the court to be in the possession

of a controlled substance, the court shall terminate the term

of supervised release and require the defendant to serve in

prison not less than one-third of the term of supervised

release.

The conditions of Smith's supervised release contained the same

restriction.

This court has previously held that the determination of whether

culpable use is established solely by laboratory tests is properly left

to the district courts. United States v. Clark , 30 F.3d 23, 26 n.2 (4th

Cir.), cert. denied, ___ U.S. #6D6D 6D#, 63 U.S.L.W. 3421 (U.S. Nov. 28,

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1994) (No. 94-6495); see also United States v. Almand, 992 F.2d 316,

318 (11th Cir 1993).

The district court in this case found that Smith submitted a urine

sample which tested positive for the presence of cocaine and hydromorphone in September 1994. The court further found that Smith

signed a form admitting illegal and unauthorized drug use in September. The court noted that there was conflicting testimony about what

the probation officer informed Smith as to the use of the form. However, the court found that it was unlikely and unreasonable for Smith

to assume that the signing of the acknowledgment form was a carte

blanche to commit further violations of the conditions of his supervised release. The court also found that Smith submitted a urine sample in October 1994 that tested positive for cocaine and November

1994 that tested positive for cocaine and hydromorphone. In addition,

the court found that there was no competent medical evidence presented that the medications that Smith was taking would present a false

positive for cocaine or hydromorphone. Finally, the court found that

the testimony from Smith and his wife that when he was in the presence of those he felt were using drugs he either left the house immediately or they quit using the drugs discounted Smith's claim that his

urinalyses tested positive for controlled substances because he was

exposed to second-hand smoke. See United States v. Courtney, 979

F.2d 45, 49 (5th Cir. 1992). The district court found, based on Smith's

positive urinalyses on at least two occasions, that Smith possessed a

controlled substance in violation of the terms of his supervised

release. The district court did not abuse its discretion in making these

findings.

Smith next claims that his inability to pay the imposed fine precluded the district court from revoking his supervised release based

on his failure to pay the fine. However, the district court did not

revoke Smith's supervised release based on his failure to pay his fine.

Rather the court reinstated the remainder of the fine previously

imposed. See United States v. Webb, 30 F.3d 687 (6th Cir. 1984);

United States Sentencing Commission, Guidelines Manual,

§ 7B1.3(d), p.s. (Nov. 1994).

Accordingly, we affirm the district court's order. We dispense with

oral argument because the facts and legal contentions are adequately

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presented in the materials before the court and argument would not

aid the decisional process.

AFFIRMED

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