UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 92-8103

Summary Calendar

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KEITH ANTONIO SMITH,

Defendant-Appellant.

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Appeal from the United States District Court

for the Western District of Texas

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(November 13, 1992)

Before GARWOOD, JONES, and EMILIO M. GARZA, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellant Smith pled guilty to one count of aiding and

abetting the distribution of crack cocaine. 21 U.S.C. § 841(a)(1);

18 U.S.C. § 2. He was sentenced to an eighteen-month term of

imprisonment to be followed by a five-year term of supervised

release. Having served his initial sentence, he now appeals from

the revocation of his supervised release term. We hold that the

trial court did not err in finding that Smith was in possession of

a controlled substance, in violation of the conditions of his

supervised release, and was therefore required to serve in prison
not less than one-third of the supervised release term. 18 U.S.C.

§ 3583(g).

As one of the conditions of his supervised release, Smith

was to refrain from the use of any controlled substances and was to

submit himself for periodic urine drug tests as directed by his

probation officer. Shortly after beginning his period of

supervised release, Smith submitted urine samples for analysis on

January 3 and January 10, 1992, both of which yielded positive

results for the presence of cocaine metabolite. At the revocation

hearing, the government's factual summary included a statement that

Smith had admitted to his probation officer the use and possession

of cocaine on two occasions. First, Smith had placed some cocaine

in a beer which he than drank; second, on another occasion, he and

a friend smoked crack cocaine. These events were corroborated by

the above-mentioned positive urinalysis tests. In acknowledging to

the trial court his violation of the supervised relief terms,

however, Smith stated only that he used the cocaine. 

On appeal, Smith contends that as a matter of law, the

"use" of controlled substances during supervised release is not

equivalent to their "possession." From his standpoint, such a

distinction is important. If Smith only used crack cocaine, the

district court retained sentencing discretion on revocation of

supervised release. A finding of possession, however, triggers a

mandatory minimum sentence of no less than one-third of the term of

supervised release. 18 U.S.C. § 3583(g).

Even if it is possible to differentiate use from

possession of a controlled substance, Smith did not do so on the
facts of this case. Whether he possessed a controlled substance in

violation of the conditions of his supervised release was a factual

question committed to the trial court. The district court, in

finding that Smith possessed crack cocaine, did not rely solely on

the two positive urinalyses, as Smith contends. Rather, appellant

Smith admitted that he used cocaine on two occasions since his

release. He admitted possession when he told the probation officer

that someone gave cocaine to him and he placed it in his beer. He

further admitted that, on a different occasion, he smoked crack

with another individual. Smith did not allege or prove that the

cocaine was administered against his will or by trick. The

district court's finding of possession is not clearly erroneous.

Our conclusion that admission of use of a contraband

substance, as well as positive urinalysis test results, may

constitute circumstantial evidence of possession of a controlled

substance for purposes of section 3583(g) follows that of other

circuit courts. United States v. Blackston, 940 F.2d 877, 891 (3d

Cir.), cert. denied, ____ U.S. ____, 112 S. Ct. 611, 116 L.Ed.2d

634 (1991) (extended discussion of § 3583(g)); United States v.

Dillard, 910 F.2d 461, 464 n.3 (7th Cir. 1990); United States v.

Baclaan, 948 F.2d 628, 630 (9th Cir. 1991); United States v. RamosSantiago, 925 F.2d 15, 17 (1st Cir.), cert. denied, _____ U.S.

_____, 112 S. Ct. 129, 116 L.Ed.2d 96 (1991); United States v.

Alli, 929 F.2d 995, 996 (4th Cir. 1991); see, United States v.

Kindred, 918 F.2d 485, 487 n.3 (5th Cir. 1990) ("Knowing use of

drugs is akin to possession.").
For these reasons, the judgment of the district court is

AFFIRMED.