F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 7 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 03-7080
v. E.D. Oklahoma
BRANDON B. HOBBS, (D.C. No. 99-CR-84-P)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BRISCOE , ANDERSON , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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.
This order and judgment is not binding precedent, except under the
*
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Brandon B. Hobbs appeals the district court’s revocation of his term of
supervised release, arguing the court erred in finding he possessed a controlled
substance based on a single positive urinalysis.
Hobbs was originally sentenced to thirty-six months’ imprisonment,
followed by three years of supervised release, having pled guilty to a charge of
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and
18 U.S.C. § 2. Hobbs’ term of supervised release began on November 13, 2001.
On May 29, 2003, Hobbs submitted a urine specimen that tested positive for
amphetamine, methamphetamine, and d-methamphetamine. The results were
reported on June 7, 2003, and on June 18, 2003, Hobbs’ probation officer
requested that the court initiate revocation proceedings. Following a hearing, the
court found that Hobbs had violated a mandatory condition of his supervised
release by being in unlawful possession of a controlled substance. The court
revoked Hobbs’ term of supervised release and sentenced him to twenty-four
months’ imprisonment. The court also recommended Hobbs be provided the
opportunity to participate in an intensive substance abuse treatment program in
prison.
On appeal, Hobbs argues that the district court erred in its application of 18
U.S.C. § 3583(g)(1) because, he contends, a positive drug test cannot form the
basis for a finding of unlawful possession of a controlled substance. We
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considered and rejected this argument in United States v. Hammonds ,
No. 03-7081, ___ F.3d ___ (10th Cir. 2004). Hobbs also argues that the district
court should have ordered him to enroll in a drug treatment 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 district court did not abuse its
discretion in imposing revocation rather than enrollment in a drug treatment
program. The district court’s revocation order is therefore AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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