UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
01-10623
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FELIX HARPER,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court for the
Northern District of Texas, Fort Worth
4:93-CR-97-1
______________________________________________
March 15, 2002
Before HIGGINBOTHAM, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
After having been previously convicted of a firearms offense, for which Appellant Felix
Harper served a term of imprisonment and was serving a three-year term of supervised release, the
district court determined that it was constrained to revoke Harper’s supervised release and then
imposed a term of imprisonment of twenty-four months. The sole issue on appeal is whether
*
Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is
not precedent except under the limited circumstances set forth in Local Rule 47.5.4.
Harper’s violations of his conditions of supervised released mandated the revocation of his term of
supervised release under 18 U.S.C. § 3583(g).
After a hearing, the district court made findings of fact that the following violations of
conditions of supervised release had occurred: (1) Harper failed to submit urine specimens on
December 20, 1999, August 25, 2000, December 3, 2000, and March 29, 2000; (2) Harper admitted
to his probation officer that he used cocaine on November 4, 2000; (3) on April 19, 2000, Harper
submitted a urine specimen that tested positive for cocaine metabolite; (4) Harper admitted to his
probation officer that he used cocaine on March 18, 2001; (5) and Harper admitted to his probation
officer on March 23, 2001, that he assisted an individual with the purchase of $1,000 worth of
cocaine for which he was paid a $500 brokerage fee (Harper stated that he tasted the cocaine for the
purchaser to ensure that the cocaine was of good quality). Harper admitted to all of the violations
except for being involved in the cocaine sale; he claimed he had fabricated the story. The district
court, however, specifically found that Harper had, in fact, assisted with the purchase of cocaine and
received $500.
The district court found that Harper had violated Standard Condition of Release No. 7, which
provided that “[t]he defendant shall refrain from excessive use of alcohol and shall not purchase,
possess, use, distribute or administer any narcotic or other controlled substance, or any paraphernalia
related to such substances, except as prescribed by a physician.” The district court also found that
Harper had violated Standard Condition No. 9, which required him to not associate with anyone
engaged in criminal activity.
Title 18 U.S.C. § 3583, the statute governing the inclusion of a term of supervised release
after imprisonment, currently provides in subsection (g), in pertinent part, [i]f the defendant – (1)
2
possesses a controlled substance . . . or (3) refuses to comply with drug testing imposed as a
condition of supervised release; 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 supervised release
authorized under subsection (e)(3).” (emphasis added).
In United States v. Smith, 978 F.2d 181, 182 (5th Cir. 1992), this Court concluded that
positive urinalysis results and a defendant’s admission of use of cocaine constituted circumstantial
evidence of possession of a controlled substance, which mandated the revocation of supervised
release under then § 3583(g). After Smith was decided, Congress amended the statute, and in
subsection (d) provided that where the basis for the violation is a failed drug test, the district court
shall consider the availability of substance abuse programs or whether an exception to the mandatory
revocation requirements of § 3583(g) is warranted. See 18 U.S.C. § 3583(d). After the amendment,
another circuit has held that subsection (d) provides a district court with the discretion not to revoke
supervised release and instead pro vide for treatment in a situation where the offender has tested
positive for drugs. See United States v. Pierce, 132 F.3d 1207, 1208 (8th Cir. 1997).
In the instant case, it is beyond dispute that the district court had the discretion to revoke
Harper’s supervised release for his multiple violations. Nonetheless, desiring to “test” the statute,
the district court ruled that it was required to revoke Harper’s supervised release.1 Thus, the district
court’s determination of this question of law is subject to plenary review. See United States v.
Dupaquier, 74 F.3d 615, 617 (5th Cir. 1996).
Harper argues that the exception to revocation contained in § 3583(d) was not in existence
1
During the hearing, the court stated as follows: “We’re going to put this statute to the test. I’m going
to say I don’t have any discretion in this case.”
3
at the time of this Court’s Smith decision and that, in accordance with the Eighth Circuit’s holding
in Pierce, this section provides the district court with discretion and flexibility in determining whether
supervised release should be revoked or treatment provided instead. The case at bar, however, is not
simply a matter of a failed drug test. Harper failed to submit urine specimens on four occasions.
More significantly, Harper possessed and used cocaine on two occasions in addition to his three failed
drug tests, and he assisted in the sale of cocaine in which he possessed a sample of the substance by
tasting to test its quality and received a $500 finder’s fee. The district court undoubtedly recognized
the seriousness of Harper’s violations when it disregarded the six to twelve month range of
imprisonment contemplated by the policy statement (§ 7B1.4(a), p.s.) and instead sentenced Harper
to twenty-four months, stating that “I don’t think the top of that is sufficient to address the objectives
of sentencing, bearing in mind the serious and large number of violations of the conditions of
supervised release in this case.” (emphasis added). As previously indicated, the exception to
mandatory revocation of supervised release applies when the district court is “considering any action
against a defendant who fails a drug test.” See § 3583(d). The district court’s uncontested factual
findings with respect to Harper’s conduct render him ineligible for the discretionary exception in §
3583(d).2 The district court’s conclusion that it was required to revoke Harper’s supervised release
was correct.
AFFIRMED.
2
Harper also argues that someone who tests positive for drug use and falsely denies other drug use should
not be in a worse position that someone who tests positive for drugs and honestly admits other drug use. In
this case, however, Harper falsely denied, according to the district court, his conduct in brokering the drug deal.
4