F I L E D

United States Court of Appeals

Tenth Circuit

JUN 4 2004

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 03-7081

TILMAN EUGENE HAMMONDS,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

(D.C. NO. 99-CR-21-P)

Roger Hilfiger, Muskogee, Oklahoma, for Defendant - Appellant.

D. Michael Littlefield, Assistant United States Attorney (Sheldon J. Sperling,

United States Attorney, with him on the brief), Muskogee, Oklahoma, for

Plaintiff - Appellee.

Before BRISCOE, ANDERSON, and LUCERO, Circuit Judges.

ANDERSON, Circuit Judge.

The issue before us in this case is whether the district court erred in

revoking the defendant-appellant’s term of supervised release under 18 U.S.C.
-2-

§ 3583(g)(1), which mandates revocation for “possession” of a controlled

substance, based on a single positive urinalysis result. For the reasons set forth

below, we affirm the district court’s revocation order.

BACKGROUND

On March 23, 1999, Tilman Eugene Hammonds pled guilty to a charge of

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and

was sentenced, on July 13, 1999, to seventy months’ imprisonment, followed by

three years of supervised release. The sentencing court recommended “[t]hat

defendant be given the opportunity to participate in an intensive substance abuse

treatment program [in prison].” R. Vol. I, tab 11 at 2. The court also imposed the

following conditions on Hammonds’ supervised release, as required under 18

U.S.C. § 3583(d):

The defendant shall not illegally possess a controlled substance.

. . . .

The defendant shall refrain from any unlawful use of a controlled

substance. The defendant shall submit to one drug test within 15

days of release from imprisonment and at least two periodic drug

tests thereafter, as directed by the probation officer.

Id. at 3. Due to his cooperation in another case, Hammonds’ term of

imprisonment was subsequently reduced to forty-six months. His term of

supervised release began on May 1, 2002.
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On May 28, 2003, Hammonds submitted a urine sample that tested positive

for amphetamine, methamphetamine, and d-methamphetamine. The test results

were reported on June 9, 2003. On June 17, 2003, Hammonds’ probation officer

submitted a petition to the district court recommending revocation of Hammonds’

term of supervised release based on this positive urinalysis result. 

The court held a final revocation hearing on July 15, 2003. At the hearing,

both parties stipulated to the May 28 positive urinalysis result and the fact that

this was the only positive result during Hammonds’ supervised release to date. 

Hammonds presented his probation officer as a witness. The probation officer

testified that, due to Hammonds’ participation as a witness in state prosecutions,

Hammonds had changed prisons several times and had at one point been put in

protective segregation. The officer further testified that Hammonds had not

participated in a drug treatment program until the final six months of his

incarceration, after he moved into a halfway house.

On the basis of this testimony, Hammonds urged the court not to revoke his

term of supervised release but instead to order him to enroll in a drug treatment

program. However, the government argued for revocation, stating that “as to this

defendant, he has had some drug treatment already and has failed, even following

that treatment, to comply with the rules and conditions of probation regarding

illegal drug use.” Hr’g Tr. at 10, R. Vol. II.
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The district court made a finding, by a preponderance of the evidence, that,

based on Hammonds’ May 28 positive urinalysis, Hammonds violated the

mandatory condition of his supervised release prohibiting him from illegally

possessing a controlled substance. The court thereupon revoked Hammonds’ term

of supervised release and sentenced Hammonds to twenty-four months’

imprisonment. The court also recommended “[t]hat the defendant be given the

opportunity to participate in an intensive substance abuse treatment program.” R.

Vol. I, tab 23 at 2.

Hammonds brought this appeal, arguing that the district court misapplied

the mandatory revocation requirements of 18 U.S.C. § 3583(g) in light of

Congress’s 2002 amendments to the statute. We review orders revoking

supervised release for an abuse of discretion. United States v. McAfee, 998 F.2d

835, 837 (10th Cir. 1993). “[H]owever, we review de novo legal questions

relating to the applicability of 18 U.S.C. § 3583(g).” Id.

DISCUSSION

We understand Hammonds’ arguments on appeal to be, in essence, twofold. 

First, Hammonds argues Congress’s 2002 addition of subsection (g)(4) to 18

U.S.C. § 3583 requires us to reconsider our prior holding in United States v.

Rockwell, 984 F.2d 1112 (10th Cir. 1993), overruled on other grounds by Johnson
1As indicated above, subsection (d) states that “[t]he court shall order, as an

explicit condition of supervised release, . . . that the defendant not unlawfully

possess a controlled substance.” 18 U.S.C. § 3583(d).

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v. United States, 529 U.S. 694 (2000), concerning the relationship between drug

use and drug possession in the revocation context. Second, Hammonds argues the

district court erred by not granting him, pursuant to 18 U.S.C. § 3583(d), an

exception to subsection (g)’s mandatory revocation requirement. We address each

of these arguments in turn.

A.

Hammonds’ first argument focuses on 18 U.S.C. § 3583(g), which currently

states, in relevant part:

(g) Mandatory revocation for possession of controlled substance

. . . or for refusal to comply with drug testing.—If the

defendant— 

(1) possesses a controlled substance in violation

of the condition set forth in subsection (d);1

. . . .

(3) refuses to comply with drug testing imposed as

a condition of supervised release; or

(4) as a part of drug testing, tests positive for

illegal controlled substances more than 3 times over the

course of 1 year;

the court shall revoke the term of supervised release and require the

defendant to serve a term of imprisonment not to exceed the

maximum term of imprisonment authorized under subsection (e)(3).
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18 U.S.C. § 3583(g). Hammonds’ term of supervised release was revoked under

subsection (g)(1), after the district court found, based on a positive urinalysis

result, that Hammonds possessed a controlled substance. Hammonds argues here

that applying subsection (g)(1) based on a single positive drug test renders

subsection (g)(4), which was added in 2002 and requires revocation after more

than three positive tests in one year, meaningless and that the district court

therefore erred. In short, Hammonds asserts that a positive drug test indicates

drug use, not drug possession, and that the 2002 amendment indicates that

Congress did not intend for courts to find possession based on use.

As Hammonds recognizes, we previously considered the argument that a

positive drug test indicates only use, not possession, in our 1993 decision in

Rockwell, 984 F.2d at 1115. There, we “h[e]ld that a controlled substance in a

person’s body is in the possession of that person for purposes of 18 U.S.C.

§ 3583(g), assuming the required mens rea.” Id. at 1114. We concluded that one

instance of knowing and voluntary use, based on a single failed drug test together

with the defendant’s admission, constituted possession for purposes of § 3583(g). 

Id. at 1115 n.4. 

As we later explained, our holding in Rockwell was based on “the

unremarkable observation that a person cannot use a drug without possessing it.” 

United States v. McAfee, 998 F.2d 835, 837 (10th Cir. 1993). This holding is in
2

 Even those circuits that have not equated use and possession for purposes

of § 3583(g) have concluded that a positive drug test is at least circumstantial

(continued...)

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accord with the prevailing view among circuits that have considered the issue. 

See United States v. Wirth, 250 F.3d 165, 170 (2d Cir. 2001) (holding that “use of

narcotics amounts to possession thereof for the purposes of § 3583(g)”); United

States v. Hancox, 49 F.3d 223, 225 (6th Cir. 1995) (agreeing that “‘use’ of

controlled substances constitutes ‘possession’ for purposes of 18 U.S.C. § 3583,”

and thus reversing the district court’s decision not to revoke the defendant’s term

of supervised release); United States v. Young, 41 F.3d 1184, 1186 (7th Cir.

1994) (holding that “in the revocation of supervision context, ‘use’ is subsumed

within ‘possession’ where the defendant knowingly and voluntarily consumes the

controlled substance”); United States v. Clark, 30 F.3d 23, 26 (4th Cir. 1994)

(holding that “once a district court credits laboratory analysis as establishing the

presence of a controlled substance in the specimen and then goes on to find

culpable use of the substance, possession under § 3583(g) necessarily follows”

(internal quotation marks omitted)); United States v. Courtney, 979 F.2d 45, 49

(5th Cir. 1992) (holding that “once the court finds a substance has been

voluntarily and knowingly ingested, then, at least in almost any imaginable

circumstance, it necessarily follows that the defendant has possessed the

substance”).2
2

(...continued)

evidence of possession and that a district court therefore has discretion to make a

finding of possession based on positive tests. See United States v. Pierce, 132

F.3d 1207, 1208 (8th Cir. 1997) (holding that the district court had discretion

whether to find possession based on a failed drug test); United States v. Almand,

992 F.2d 316, 318 (11th Cir. 1993) (upholding the district court’s “exercise[] [of]

its factfinding power” in finding possession based on four positive drug tests,

while noting that “there is no indication that the district court believed it was

required to equate use with possession”); United States v. Dow, 990 F.2d 22, 24

(1st Cir. 1993) (upholding the district court’s finding of possession based on

eleven positive drug tests); United States v. Baclaan, 948 F.2d 628, 630 (9th Cir.

1991) (upholding the district court’s finding of possession based on four positive

drug tests and the defendant’s admission of use); United States v. Blackston, 940

F.2d 877, 891 (3d Cir. 1991) (holding that evidence of drug use could be

considered circumstantial evidence of possession and upholding the district

court’s finding of possession based on three positive drug tests and the

defendant’s admission of use).

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We continue to believe that, assuming the requisite culpable state of mind,

the connection drawn in Rockwell between use and possession is simply a matter

of common sense. As the Seventh Circuit stated in a similar context, “[i]nferring

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.” United States v. Trotter, 270

F.3d 1150, 1153 (7th Cir. 2001). Moreover, “[w]e are bound by the precedent of

prior panels absent en banc reconsideration or a superseding contrary decision by

the Supreme Court.” In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) (citations

omitted). 
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We must consider, however, whether, as Hammonds argues, Congress

effectively superseded Rockwell’s holding, and the similar holdings of other

circuits, through the addition of subsection (g)(4). Nothing in the language of the

2002 amendment explicitly indicates an intent to supersede Rockwell. We

therefore consider whether such an intent is made manifest through the statute’s

structure – namely, whether, as Hammonds contends, subsection (g)(1), when

applied in accord with Rockwell, swallows subsection (g)(4). The government

argues against this contention on the basis that

nowhere in [§] 3583(g)[(1)] is the finding of possession as [a] result

of use required. As such, prior to the passage of [§] 3583(g)(4), a

court could make multiple findings of use of a controlled substance

without finding possession. This would allow the court to . . .

modify conditions without requiring revocation and imprisonment. 

Section 3583(g)(4) merely limits the discretion of a court in that

usage of a controlled substance in excess of three occasions during a

calendar year, as evidenced by drug testing failures, mandates a

revocation. 

Appellee’s Br. at 7. In other words, the government interprets subsection (g)(1)

as giving the district court the flexibility to choose whether or not to make a

finding of possession based on a finding of knowing and voluntary use. Under

this view, subsection (g)(1) does not swallow subsection (g)(4) because

revocation based on use, as evidenced by positive drug tests, is at the court’s

discretion under subsection (g)(1) and only becomes mandatory when there are

four positive tests, triggering (g)(4).
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In suggesting this interpretation, the government appears to adhere to the

reasoning of the Third Circuit’s opinion in Blackston, followed by the First,

Eighth, Ninth, and Eleventh Circuits. Blackston regarded subsection (g)(1) as

preserving a district court’s flexibility in determining whether or not to revoke a

defendant’s term of supervised release based on failed drug tests. Blackston, 940

F.2d at 885 (explaining that Congress’s “emphasis on flexibility,” as revealed by

legislative history, is consistent with the court’s interpretation of § 3583(g)). 

Under the Blackston approach, a district court has “leeway under [§ ] 3583(g),”

allowing, but not requiring, it to make a finding of unlawful drug possession

based on “multiple positive drug tests and other circumstantial evidence such as

admitted drug use.” Id. 

As our holding in Rockwell indicates, we do not believe that a court,

presented with undisputed evidence of drug use, as shown by a positive drug test,

together with evidence that the defendant’s use was knowing and voluntary, can

logically conclude that the defendant has not possessed the drug. As we stated

explicitly in Rockwell, in the context of revocation proceedings based on positive

drug tests, knowing and voluntary use is “synonymous with possession.” 

Rockwell, 984 F.2d at 1114. We thus reject the government’s analysis.

We nevertheless conclude that subsection (g)(1), when applied in accord

with Rockwell, does not swallow subsection (g)(4). Subsection (g)(4) requires
3Such an occurrence is of course unlikely. Indeed, we understand

subsection (g)(4) as indicating Congress’s view that four positive tests in one year

is sufficient evidence that a defendant’s use was knowing and voluntary, making

an independent mens rea finding unnecessary.

4Hammonds quotes a general statement by Senator Hatch, that the 2002 bill

as a whole was primarily intended to advance drug treatment efforts, see 147

Cong. Rec. S1271-02, S1314 (daily ed. Fed. 13, 2001) (statement of Sen. Hatch),

as indicating Congress’s intent to supersede Rockwell by adding subsection

(g)(4). We are unpersuaded by this argument. For one thing, as discussed below,

the 1994 amendment to § 3583(d) already allowed a court to order enrollment in a

drug treatment program instead of revocation under subsection (g). That

amendment specifically referred to revocations under subsection (g) based on

failed drug tests, indicating Congress was aware courts were making findings of

“possession” based on such tests. Indeed, the 1994 amendment followed

(continued...)

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revocation of a defendant’s term of supervised release where the defendant tests

positive for illegal controlled substances at least four times in one year, without

regard to the defendant’s mens rea. Thus, under subsection (g)(4), a defendant’s

term of supervised release would be subject to mandatory revocation even where

the defendant could prove that all four positive tests were due to accidental or

unwilling ingestion.3

 Subsection (g)(1), on the other hand, when applied under

Rockwell, requires revocation only where the district court finds that the

defendant had the required mens rea. We believe the mens rea requirement in

subsection (g)(1), requiring the government to prove by a preponderance of the

evidence that the defendant knowingly and voluntarily used the drug revealed by

the drug test, sufficiently distinguishes it from subsection (g)(4) so that the latter

provision may apply in circumstances where the former does not.4
4

(...continued)

Rockwell and similar decisions of other circuits. If Congress had wished to

clarify that it did not intend (g)(1) “possession” revocations to be predicated on

failed drug tests, we believe it would have done so explicitly. The addition of

subsection (g)(4) provides no such explicit clarification.

5Prior to the 2002 amendment of subsection (g), the reference in subsection

(d) to § 3583(g) could only have referred to subsection (g)(1), as neither (g)(2)

nor (g)(3) could conceivably apply based on a failed drug test. The reference in

subsection (d) was not revised in 2002 to refer specifically to subsection (g)(1). 

(continued...)

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We conclude that Rockwell’s holding remains valid.

B.

Hammonds’ second argument is that the district court should have granted

him an exception, pursuant to 18 U.S.C. § 3583(d), to the mandatory revocation

requirement under 18 U.S.C. § 3583(g)(1). The relevant language in subsection

(d) was added in 1994 and states:

The court shall consider whether the availability of appropriate

substance abuse treatment programs, or an individual's current or past

participation in such programs, warrants an exception in accordance

with United States Sentencing Commission guidelines from the rule

of section 3583(g) when considering any action against a defendant

who fails a drug test.

Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322,

§ 20414(c), 108 Stat. 1796 (codified at 18 U.S.C. § 3583(d)). This addition thus

requires a district court to consider whether to grant a defendant otherwise subject

to mandatory revocation under subsection (g)(1)5

 an exception, presumably by
5

(...continued)

Thus, the exception provided in subsection (d) to mandatory revocation appears

now to apply to revocations under either (g)(1) or (g)(4).

6We note that the Eighth Circuit agreed that the 1994 amendment “as a

whole permits a sentencing court to choose whether to impose a program of

treatment rather than incarceration if one on probation fails a drug test.” Pierce,

132 F.3d at 1208. However, Pierce attempts to incorporate this interpretation of

the 1994 amendment into the Blackston approach, stating: “If the court finds an

offender to be in illegal possession of a controlled substance, imprisonment is

mandated. If, however, the court simply finds that one on probation failed a drug

test, then the court is free to require further participation in a substance-abuse

program.” Id. Under Pierce, then, as under Blackston, the district court exercises

its flexibility at the point of making the finding of possession. However, we

believe our interpretation is consistent with the amendment’s clear statement that

it is setting forth “an exception . . . from the rule of section 3583(g).” 18 U.S.C.

§ 3583(d). If the district court does not make the initial finding of possession,

subsection (g)(1) would not be applicable, and the court would have no need to

consider whether to grant an “exception” to the rule pursuant to subsection (d). 

This interpretation is also consistent with the relevant federal sentencing

guidelines commentary. United States Sentencing Commission, Guidelines

Manual, §7B1.4, comment. (nn.5-6).

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ordering the defendant to undergo or continue substance abuse treatment instead

of revoking his term of supervised release. 

In effect, the subsection (d) exception provides a court following Rockwell

a degree of discretion similar to that exercised by a court following Blackston

when determining whether to apply subsection (g)(1)’s mandatory revocation

requirement based on a positive drug test. Under the subsection (d) exception,

however, this discretion comes into play after a finding of possession is made,

rather than at the point of making the finding.6
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Since the decision to apply the subsection (d) exception is at the discretion

of the district court, we review this decision for an abuse of discretion. We first

note that the district court here did not make a specific ruling on the record

rejecting application of the subsection (d) exception in this case or explaining the

reasons for such a rejection. This alone does not constitute an abuse of

discretion, however, as there is no indication the court did not recognize that it

could grant the exception. Compare United States v. Crace, 207 F.3d 833, 836

(6th Cir. 2000) (“[W]e do not require magic words in the record of the sentencing

hearing indicating that substance abuse treatment was considered in order to

uphold the district court’s prison sentence.”), with Pierce, 132 F.3d at 1208-09

(remanding where the district court’s statements at the revocation hearing cast

doubt on whether it realized it could order drug treatment as an alternative to

revocation). As indicated above, Hammonds argued at his revocation hearing that

the court should order drug treatment rather than revocation. Hammonds also

presented the testimony of his probation officer in support of this argument. The

government, however, argued against allowing this exception, pointing out that

Hammonds had already participated in a treatment program before his positive

urinalysis. Ultimately, the court ordered revocation but recommended Hammonds

be put into a drug treatment program in prison. There is no indication the court

did not recognize it had discretion to order enrollment in a substance abuse
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program. We hold that the court did not abuse its discretion by ordering

revocation rather than an exception pursuant to 18 U.S.C. § 3583(d).

CONCLUSION

For the foregoing reasons, the district court’s order is AFFIRMED.