United States Court of Appeals
For the First Circuit
No. 03-1204
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN BRENNICK,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Selya, Circuit Judges.
Bjorn Lange, Assistant Federal Public Defender, Federal
Defender Office, on brief for appellant.
Mark E. Howard, Assistant United States Attorney, and Thomas
P. Colantuono, United States Attorney, on brief for the United
States.
July 29, 2003
Per Curiam. In 1996, John Brennick pled guilty to a
charge of federal bank larceny and was sentenced to 87 months
imprisonment followed by 36 months supervised release. He served
the prison term without mishap, but trouble started soon after his
release on October 18, 2002. On December 14, he left a message for
his supervising officer, Kevin Lavigne, claiming to be confused
about the logistics of his scheduled drug test. Two days later, he
missed his drug testing appointment. Officer Lavigne reprimanded
Brennick and told him to report for testing the next day. Brennick
did not show up. On December 18, Brennick admitted to Lavigne that
he had relapsed into cocaine use, and the following day he gave a
urine sample that tested positive for cocaine metabolites.
In the following weeks, Brennick appears to have gone on
an extensive crime spree. Only the last episode of that spree is
relevant here: on December 29, 2002, Brennick was arrested after a
failed attempt to elude the police in a high-speed car chase.
Brennick did not surrender voluntarily but crashed the car he was
driving--a car not his own and with a screwdriver in the ignition
instead of keys.
On January 7, 2003, Officer Lavigne filed a petition
charging Brennick with six violations of the terms of his
supervised release--three violations stemming from the car chase,
two from non-compliance with the instructions of his supervising
officer, and one based on possession of cocaine. Under federal
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law, an offender who commits a crime while on supervised release
can have the release revoked and be returned to prison. 18 U.S.C.
§ 3583(e)(3) (2000); U.S.S.G. § 7B1.1 (2002). The revocation is
designed to punish an offender's breach of trust in violating the
court-ordered terms of release, so the sanction is independent of--
and potentially in addition to--regular criminal prosecution for
the crime. U.S.S.G ch. 7, pt. A, introductory cmt. b.
Any "federal, state, or local offense" is deemed a
violation of the terms of release. U.S.S.G. § 7B1.1(a). The
guidelines divide release violations into three categories by type
and severity of offense. U.S.S.G. § 7B1.1(a). Two categories are
relevant here:
(2) Grade B Violations--conduct constituting any [non-
grade A] federal, state, or local offense punishable by
a term of imprisonment exceeding one year.
(3) Grade C Violations--conduct constituting (A) a
federal, state, or local offense punishable by a term of
imprisonment of one year or less; or (B) a violation of
any other condition of supervision.
U.S.S.G. § 7B1.1(a)(2)&(3). The guidelines set out a mini-
sentencing table using the grade of the release violation and the
offender's criminal history to determine the appropriate sentence.
U.S.S.G. § 7B1.4. If the defendant is found to have committed
"conduct that constitutes more than one offense, the grade of the
violation is determined by the violation having the most serious
grade." U.S.S.G. § 7B1.1(b).
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Applying this framework to Brennick's case, the district
court found Brennick guilty of all six violations on February 4,
2003. The court further determined that one of the six offenses--
possession of cocaine--was a grade B violation since it was
punishable by more than one year of prison under New Hampshire law.
U.S.S.G. § 7B1.1(a)(2). All of Brennick's other offenses were
grade C violations. Brennick's substantial criminal record placed
him in criminal history category VI, so the relevant sentencing
range for his release violation was 21-27 months. U.S.S.G. §
7B1.4. The district judge sentenced him to the statutory maximum
of 24 months. 18 U.S.C. § 3583(e)(3).
At issue in this appeal is whether Brennick's simple
possession of cocaine was properly classified as a class B felony
under U.S.S.G. § 7B1.1(a)(2). Had Brennick committed only class C
offenses, the relevant sentencing range would have been 8-14
months, far less than the 24 months he received. U.S.S.G. § 7B1.4.
Since Brennick challenges the district court's interpretation of
the guidelines, not findings of fact, our review is de novo.
United States v. Mateo, 271 F.3d 11, 13 (1st Cir. 2001); United
States v. St. Cyr, 977 F.2d 698, 701 (1st Cir. 1992).
Both parties agree that simple possession of a controlled
substance is not a class B violation under federal law; because it
carries a maximum penalty of one year in prison, it is a class C
offense. 21 U.S.C. § 844(a) (2000). The guidelines, however,
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classify as a grade B violation any conduct that constitutes a
"federal, state, or local offense punishable by a term of
imprisonment exceeding one year." U.S.S.G. § 7B1.1(2). Under New
Hampshire law, possession of a controlled substance is a felony
punishable by up to seven years in prison. N.H.R.S.A. 318-B:26(c)
(2003). Nevertheless, Brennick argues that the New Hampshire
classification should not be used in this case for two quite
different reasons.
His first argument is based on the guidelines' statement
that "[w]here there is more than one violation of the conditions of
supervision, or the violation includes conduct that constitutes
more than one offense, the grade of the violation is determined by
the violation having the most serious grade." U.S.S.G. § 7B1.1(b)
(emphasis added). Brennick argues that this provision "does not
address conduct which ... amounts to the same offense under both
federal and state law"; he urges us to conclude that the guidelines
are ambiguous as to how such conduct should be treated, and to
apply the rule of lenity to resolve the ambiguity in his favor.
See United States v. Bowen, 127 F.3d 9, 13-14 (1st Cir. 1997)
(applying rule of lenity).
Strictly speaking, conduct that violates the laws of two
different sovereigns constitutes "more than one offense" and
represents two different "violations." See Heath v. Alabama, 474
U.S. 82, 88 (1985) ("When a defendant in a single act violates the
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'peace and dignity' of two sovereigns by breaking the laws of each,
he has committed two distinct 'offences.'" (quoting United States
v. Lanza, 260 U.S. 377, 382 (1922))). Perhaps the drafters of this
guideline were thinking principally about cases where two or more
offenses each involved different conduct, but the guideline's
language fits the present case like a glove. Like the Ninth
Circuit, we see no ambiguity. United States v. Jolibois, 294 F.3d
1110, 1113 (9th Cir. 2002).
Further, treating the New Hampshire classification as
controlling on these facts serves what appears to be the underlying
policy of the guideline. Ordinarily, in administering a regime for
federal sentencing, one might expect that a federal classification
should prevail over a state classification and, indeed, that
reliance on state classifications would introduce arbitrary
disparities depending upon how the law in the particular state
treated the underlying conduct. But the guideline itself makes
clear that here, as in certain other instances, e.g. § 2L1.2,
federal and state classifications are both relevant and that
Congress favored use of the one that produces the more serious
penalty. Jolibois, 294 F.3d at 1113-14.
As it happens, in United States v. Restrepo-Aguilar, 74
F.3d 361 (1st Cir. 1996), we dealt with a parallel problem of
guideline interpretation and reached a comparable result. There,
a substantial upward adjustment turned on whether a state drug
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possession offense was regarded as a misdemeanor or felony; state
law treated it as a felony, but comparable conduct under federal
law would be only a misdemeanor. Id. at 363-64. The guidelines
explained that the relevant definition of felony applied equally to
offenses "in violation of federal or state law." § 2L1.2, cmt. n.7
(1994).
In Restrepo, we said that the guidelines' "'explicit
reliance on state classifications represents a Congressional choice
to include within the category of 'felony' offenses ... those
crimes deemed serious enough by states to warrant felony treatment
within their jurisdictions.'" Restrepo-Aguilar, 74 F.3d at 365
(quoting Jenkins v. INS, 32 F.3d 11, 14 (2d Cir. 1994)). In a
similar manner, the guideline at issue in this appeal directs use
of the state or federal classification having the most serious
grade--which in this case means New Hampshire's classification.
U.S.S.G. § 7B1.1. Any "lack of uniformity" that may result "is the
consequence of a deliberate policy choice by Congress and the
Commission that we cannot disregard." Restrepo-Aguilar, 74 F.3d at
366.
Brennick's second attack on the district court's judgment
fares no better. Brennick asserts that the evidence presented at
his revocation hearing--including his confession and positive drug
test--would have been legally insufficient for conviction if he had
been tried in New Hampshire state courts. Therefore, he argues,
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reliance on the state law offense to determine the grade of
supervised release violation is improper.
Both parties seem to proceed on the premise that it
matters whether Brennick could be convicted under New Hampshire's
own treatment of the evidence in this case. Yet the guidelines do
not require the district judge to determine whether the defendant
could be convicted under the particular evidentiary standards that
prevail in state courts; rather, they direct the federal judge to
determine if the defendant has engaged in conduct that constitutes
an offense under state law. U.S.S.G. § 7B1.1. This determination
is made using the flexible process of proof prescribed for federal
revocation hearings. See Fed. R. Crim. P. 32.1(a)(2) (advisory
committee notes); Fed. R. Evid. 1101(d)(3). Arguably, a state's
evidentiary standards are irrelevant in making this federal
determination.
In any event, there is no doubt that the evidence against
Brennick would suffice for conviction in New Hampshire courts. In
federal courts, a positive drug test is sufficient to show that a
defendant possessed the drugs. United States v. Dow, 990 F.2d 22,
24 (1st Cir. 1993) (collecting cases); see also United States v.
Trotter, 270 F.3d 1150, 1153-54, 1154 (7th Cir. 2001) (collecting
cases). There is no reason to doubt that a New Hampshire court
would be equally willing to accept such powerful scientific
evidence. The cases Brennick cites as requiring additional
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evidence of possession did not involve drug tests; all were
disputes over constructive possession where the additional evidence
was required to link a particular defendant to drugs found on the
premises. See, e.g., State v. Cartier, 575 A.2d 347, 349 (N.H.
1990); State v. Francoeur, 445 A.2d 1095, 1096 (N.H. 1982).
Further, in this case the evidence was not limited to the
drug test: Brennick confessed to using drugs. Brennick argues that
an uncorroborated confession is not sufficient under New Hampshire
law to support a conviction. On this point he does have solid
precedent. State v. Zysk, 465 A.2d 480, 483 (N.H. 1983); State v.
George, 257 A.2d 19, 20-21 (N.H. 1969). But in this case the
evidence included both a confession and corroborating evidence--the
positive drug test. Since a corroborated confession is sufficient
to uphold a conviction, there is virtually no doubt that Brennick
would have been convicted in state court.
Affirmed.
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