In the

United States Court of Appeals

For the Seventh Circuit

No. 00-4185

United States of America,

Plaintiff-Appellee,

v.

Clarence Trotter,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 3:96CR30115-002--William D. Stiehl, Judge.

Argued October 2, 2001--Decided November 6, 2001

 Before Posner, Easterbrook, and Evans,

Circuit Judges.

 Easterbrook, Circuit Judge. Convicted of

using unauthorized access devices, see 18

U.S.C. sec.1029(a)(2), (e)(1), Clarence

Trotter received a mild sentence: 5

months’ imprisonment and 36 months’

supervised release (5 months of which

were to be spent in home confinement). He

repeatedly violated the terms of home

confinement by leaving without

authorization, and he broke the rules of

supervised release by lying to the

probation office about his employment

(and failing to notify the office about

changes) and using marijuana. He tested

positive for marijuana at least 3 times

and skipped 7 scheduled drug tests.

Trotter also paid only $3,800 of the

$18,300 restitution that is part of his

sentence--and only $80 of that sum

voluntarily (the rest came from

garnishing his salary). Eventually the

district judge revoked his supervised

release.

 Under the Sentencing Guidelines, the

penalty following revocation depends on

the most serious violation-- for Trotter,

unlawful possession of drugs. Multiple

violations are not cumulative under the

Guidelines’ structure, U.S.S.G.

sec.7B1.1(b), so the district court

ignored all of Trotter’s other

shortcomings. The Sentencing Commission
has prescribed three grades of

violations--A, B, and C. (Chapter 7 of

the Guidelines is a Policy Statement

rather than a rule, see United States v.

Hill, 48 F.3d 228 (7th Cir. 1995), but a

district court must start with these

policies, and in Trotter’s case the judge

did not show any inclination to deviate

from them. Thus for current purposes we

treat Chapter 7 as if it were binding.)

 A crime of violence, a firearms offense,

or a "controlled substance offense" is a

Grade A violation; any other conduct

"constituting any other federal, state,

or local offense punishable by a term of

imprisonment exceeding one year" is a

Grade B offense (U.S.S.G.

sec.7B1.1(a)(2)); any remaining

infraction falls into Grade C. Simple

possession and use of a drug, without

intent to distribute, is not a

"controlled substance offense" under the

chain of cross-references starting with

Application Note 3 to sec.7B1.1 and

leading to U.S.S.G. sec.4B1.2(b) and its

Application Note 1. Use of marijuana is

not punishable by more than a year in

prison under either state or federal law,

making it a Grade C violation. Possession

of personal-use quantities is a civil

offense punishable by a fine, 21 U.S.C.

sec.844a, but this dispensation is not

available to persons with a drug

conviction, see sec.844a(c). Trotter has

such a conviction, which moves him to the

domain of 21 U.S.C. sec.844(a): Simple

possession by a repeat offender is

punishable by up to two years’

imprisonment. This led the district judge

to conclude that Trotter committed a

Grade B violation. Because Trotter’s

criminal history category is II, the

table at sec.7B1.4 gives a range of 6-12

months’ imprisonment. The judge selected

6 months, plus an additional 30 months’

supervised release. The range for a Grade

C violation is 4-10 months, so Trotter

could have received the same sentence no

matter what. But the judge did not state

on the record that the classification is

irrelevant, and we must therefore tackle

the merits, see United States v. Mount,

966 F.2d 262 (7th Cir. 1992); perhaps the

judge would have chosen 4 months had he

believed that Trotter’s misconduct is

Grade C rather than Grade B.

 This potential 2-month difference in a

term of imprisonment has spawned a
cascade of legal issues that reveal

disagreements within the circuit. No

fewer than three intra-circuit conflicts

have come to light. The first is whether

expiration of the time in prison moots

the choice between Grade B and Grade C.

If the case is not moot, we must decide

whether use of marijuana permits the

district judge to infer that the user

committed the crime of possessing that

drug. If Trotter possessed marijuana, the

final question is whether the district

judge could consider his criminal

history, which elevated his potential

sentence from a $10,000 fine to two

years’ imprisonment, and thus from Grade

C to Grade B. We start with mootness.

 Trotter’s imprisonment is over, but he

remains on supervised release, a form of

custody. If instead of being sentenced to

6 months Trotter had been sentenced to

only 4, what would have happened to the

length of the supervised release? If time

removed from imprisonment were added

automatically to supervised release, then

nothing we do now could assist Trotter,

and it might make things worse by tacking

months onto the remaining term of

custody. But this is not how either the

supervised-release statute, 18 U.S.C.

sec.3583, or the Guidelines, handles

matters. So far as the statute is

concerned, a combination of prison and

supervised release adding to 36 months is

the maximum available to the judge, see

sec.3583(h), but not the minimum. The

Guidelines do not detract from that

statutory flexibility. See U.S.S.G.

sec.7B1.3(g)(2). The district judge could

have sentenced Trotter to 4 months’

imprisonment and, say, 24 months’

supervised release--and maybe he would

have done so had he believed that

Trotter’s deeds were Grade C rather than

Grade B violations. We cannot be sure, of

course, but Trotter is entitled to have

the district judge impose a sentence

under the correct legal rules, if any

potential benefit could arise from the

difference. This principle is the reason

why, as Mount held, we consider his

claims even though 6 months’ imprisonment

could have been meted out for a Grade C

violation. Unless we are confident that

Trotter cannot benefit from success on

appeal, the case is not moot.

 That is how things work out from the

application of first principles. It is
also how this court saw matters in United

States v. Swigert, 18 F.3d 443 (7th Cir.

1994), and United States v. Eske, 925

F.2d 205, 206 n.2 (7th Cir. 1991). See

also United States v. Verdin, 243 F.3d

1174, 1177-79 (9th Cir. 2001). Swigert

relied in part on a proposition later re

jected in United States v. Johnson, 529

U.S. 53 (2000): That a person held too

long in prison automatically would be

given credit against his term of

supervised release. But Swigert does not

depend wholly on that proposition; it

also recognized that on remand a district

judge would have discretion to shorten

the term of supervised release.

 United States v. Ross, 77 F.3d 1525,

1549 n.6 (7th Cir. 1996), throws a monkey

wrench into this approach by holding that

completion of a prison sentence while an

appeal is pending does moot an appeal,

despite ongoing supervised release. Ross

recognized the seemingly contrary

holdings in Swigert and Eske but added

that the appeal is moot when it is

legally impossible to shorten the term of

supervised release, even if the prison

sentence should have been shorter. That

unexceptional proposition of law seems to

entail the proposition that it is legally

forbidden to shorten the period of

supervised release. Sometimes that might

be so; minimum terms accompany some

offenses, and after Johnson a defendant

who received the minimum term of

supervised release has nothing further to

gain with respect to supervised release

from a post-hoc declaration that his

imprisonment should have ended sooner.

But in Ross itself the district judge had

discretion to select a term of supervised

release as low as 24 months, which would

have meant a reduction from the term

actually imposed, 36 months, just as in

Swigert and Eske. (The appellant had been

convicted of mail fraud and related Class

D offenses, which is why the district

judge possessed discretion to choose a

reduced term of supervised release. See

18 U.S.C. sec.sec. 152, 3559(a); U.S.S.G.

sec.5D1.2(a).) Ross therefore might be

understood to create an intra-circuit

conflict. We can avoid that, however, by

limiting Ross to the proposition it said

was dispositive: if it is impossible to

reduce the term of supervised release, a

defendant who is already out of prison

has nothing to gain from an appeal. Ross

did not analyze when it is possible to
reduce that term; it made an assumption

on that subject, but assumptions are not

holdings. Ross therefore does not

preclude us from deciding that Trotter’s

case is live.

 Next comes the question whether use of

marijuana supports an inference of

possession--for only possession is a

criminal offense potentially supporting a

Grade B violation. This question has a

simple answer. Of course use may support

an inference of possession. A person

might test positive for marijuana if he

never touched the stuff but spent a lot

of time around heavy smokers and ended up

with some of the drug in his lungs. This

is unlikely, but possible, and a district

judge therefore might treat one or even

two positive tests as inadequate to prove

possession of the drug. But a judge also

could infer from the presence of

marijuana metabolites in the blood that

the user possessed that drug, if only in

the process of smoking a communal joint.

Trotter tested positive at least 3 times

and skipped a further 7 tests, which

could support a conclusion that he knew

that he would have tested positive on

those occasions too. That is more than

enough to permit a rational trier of fact

to infer that Trotter possessed

marijuana. The burden of persuasion for

revocation of supervised release is a

preponderance of the evidence, and the

finding of possession on a record such as

this cannot be deemed clearly erroneous.

Inferring possession of a drug from the

consumption of that drug is just as

sensible as inferring, from the statement

"I ate a hamburger for lunch," that the

person possessed the hamburger before

wolfing it down. Likewise judges and

juries may infer that someone who robbed

a bank also possessed the loot. No

surprise, then, that we held in United

States v. Young, 41 F.3d 1184, 1185 (7th

Cir. 1994), that use of a drug implies

its possession. (Indeed, Young suggested

that use compels an inference of

possession, a suggestion that may be

overboard for a single positive drug

test.) Every other court that has

considered this question has come to the

same conclusion. See, e.g., United States

v. Dow, 990 F.2d 22, 24 (1st Cir. 1993);

United States v. Blackston, 940 F.2d 877,

878 (3d Cir. 1991); United States v.

Clark, 30 F.3d 23, 25 (4th Cir. 1994);

United States v. Courtney, 979 F.2d 45,
49 (5th Cir. 1992); United States v.

Crace, 207 F.3d 833, 835-37 (6th Cir.

2000); United States v. Baclaan, 948 F.2d

628, 630 (9th Cir. 1991); United States

v. Rockwell, 984 F.2d 1112, 1114 (10th

Cir. 1993); United States v. Almand, 992

F.2d 316, 318 (11th Cir. 1993).

 As we said, the question whether use of

a drug may support an inference of its

possession has a simple answer-- "yes,"

according to Young and eight other

circuits. Unfortunately, a different

panel of this court gave the answer "no"

in United States v. Wright, 92 F.3d 502

(7th Cir. 1996). Without citing Young or

the decisions in other circuits, the

panel in Wright opined that "testing

positive for drug use is not an

independent crime; it is only a violation

of the terms of . . . supervised release.

We note . . . that these kinds of

violations are classified as Grade C

under sec.7B1.1(a)(3)." 92 F.3d at 506.

Wright may have meant to say no more than

that if the district judge declines to

infer possession from use, then no

"independent crime" has been committed.

But the flat assertion (which appears

twice in Wright) that persons who test

positive for drug use "are classified as

Grade C" violators implies that it would

be improper to infer possession from use.

That position is impossible to sustain.

It would take normal fact-finding and

inference-drawing out of the hands of

district judges. Wright is best

understood not to do such a thing. The

statement that persons who test positive

for drug use "are classified as Grade C"

violators is dictum in Wright--the

district judge had found a Grade A

violation, and the choice between Grade B

and Grade C was not presented by the

case. Unreasoned statements in our

decisions should not be taken to overrule

opinions of prior panels, such as Young.

We disapprove the dictum in Wright and

reiterate the holding of Young, which has

such substantial support in other

circuits (plus the norm committing

inferences to the trier of fact).

 Finally, we must decide whether

Trotter’s possession of marijuana was

conduct "constituting any other federal,

state, or local offense punishable by a

term of imprisonment exceeding one year"

within the meaning of sec.7B1.1(a)(2).

The answer is yes if the district court
may consider Trotter’s prior drug

conviction, and no otherwise. "Yes" seems

an apt answer; how can one determine

whether an offense is "punishable" by a

particular term without considering all

of the ingredients that set the maximum

punishment? If a statute punished

marijuana possession by two years in

prison if the possession occurred within

1,000 feet of a school, and one month

otherwise, the court would have to

determine the distance from the school to

know whether given conduct was punishable

by more than a year in prison. Just so

with a recidivist enhancement. See

Almendarez-Torres v. United States, 523

U.S. 224 (1998). Many provisions of the

Guidelines other than sec.7B1.1(a)(2)

make something turn on whether conduct is

punishable as a felony, by a sentence

exceeding one year, or something similar.

We routinely hold that when making these

decisions the court must determine

whether the conduct is a felony (etc.)

after prior convictions are taken into

account. See, e.g., United States v.

Irby, 240 F.3d 597, 599-600 (7th Cir.

2001); United States v. Rice, 116 F.3d

267, 268 (7th Cir. 1997). Young reached

the same conclusion for purposes of

sec.7B1.1(a)(2), although without

spelling out the reasoning. 41 F.3d at

1186 & n.1. And both other courts of

appeals that have addressed the question

are in accord with Young. See Crace, 207

F.3d at 837-38; United States v.

Boisjolie, 74 F.3d 1115, 1116-17 (11th

Cir. 1996).

 Young seems to be the Rodney Dangerfield

of this circuit’s opinions. Wright

contradicted one of Young’s

holdingswithout mentioning it, and in

United States v. Lee, 78 F.3d 1236 (7th

Cir. 1996), we contradicted Young’s other

holding, again without recognizing the

state of circuit law. One reason why this

aspect of Young hasn’t received much

respect is the indirect way in which the

panel in Young stated the point, in a

cursory footnote. Apparently the lawyers

in Lee did not draw that panel’s

attention to Young. But it has been drawn

to our attention, and we must decide what

to do. One case or the other must be

overruled.

 Lee gave two principal reasons for

holding that prior convictions should be

disregarded when determining the grade of
a violation: first that Application Note

1 to sec.7B1.1 supports this approach,

and second that because the table in

sec.7B1.4 includes a criminal history

category, use of criminal history to

influence the grade level would be double

counting.

 Application Note 1 to sec.7B1.1 reads:

Under 18 U.S.C. sec.sec. 3563(a)(1) and

3583(d), a mandatory condition of

probation and supervised release is that

the defendant not commit another federal,

state, or local crime. A violation of

this condition may be charged whether or

not the defendant has been the subject of

a separate federal, state, or local

prosecution for such conduct. The grade

of violation does not depend upon the

conduct that is the subject of criminal

charges or of which the defendant is

convicted in a criminal proceeding.

Rather, the grade of the violation is to

be based on the defendant’s actual

conduct.

Lee relies on the last sentence: "the

grade of the violation is to be based on

the defendant’s actual conduct." This

means, we thought, that the court should

put to one side earlier offenses, which

are not part of the "actual conduct" that

occurs while on supervised release.

Putting this sentence back into context,

however, gives it a different meaning.

Application Note 1 tells the district

judge to consider what the person on

supervised release did, rather than what

crimes he has been charged with.

Revocation of supervised release, in

other words, proceeds on real-offense

rather than charge-offense principles. A

judge engaged in real-offense sentencing

does not ignore prior offenses that

affect the maximum punishment; recidivist

enhancements are part of real-offense

sentencing.

 As for double counting: If the

Guidelines’ use of criminal history to

influence the final sentence blocks

recidivist enhancements under sec.7B1.1,

it logically does so for any offense and

not just for revocation of supervised

release, for the use of criminal history

is ubiquitous in the Guidelines. Yet this

has never before been thought

incompatible with using prior convictions

to determine maximum permissible
punishments. Just one year after we

released Lee, the Supreme Court rejected

this element of its reasoning in United

States v. LaBonte, 520 U.S. 751 (1997).

Career criminals must be sentenced at or

near the maximum term for their crimes.

28 U.S.C. sec.994(h). Does "maximum term"

for this purpose mean the maximum with or

without recidivist enhancements? The

first circuit concluded in LaBonte that

the maximum must be determined without

recidivist enhancements, because the

effect of prior convictions is taken into

account in the career-criminal

enhancement (as well as the criminal

history category system). But the Supreme

Court held otherwise, concluding that the

term of punishment to which a person is

exposed on violating a statute includes

all enhancements--for quantity of drugs,

for use of firearms, for violence during

the offense, and for prior convictions. A

similar approach applied to

sec.7B1.1(a)(2) supports Young rather

than Lee, which must therefore be

overruled. This step will restore harmony

within the circuit and eliminate a

conflict among the circuits./*

 Trotter’s prior drug conviction exposed

him to a maximum of two years in prison

for possessing marijuana. The district

judge did not commit a clear error in

concluding that Trotter possessed

marijuana in the course of using it.

Trotter therefore committed a Grade B

violation, and the punishment imposed on

the revocation of his supervised release

is

Affirmed.

FOOTNOTE

/* This opinion was circulated before release to all

active judges under Circuit Rule 40(e). No judge

requested a hearing en banc on the question

whether to overrule Lee.