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United States v. Hunnell

United States District Court, W.D. Virginia, Abingdon Division

April 8, 2019

UNITED STATES OF AMERICA
v.
HARRY DEAN HUNNELL, Defendant.

          S. Cagle Juhan, Assistant United States Attorney, Abingdon, Virginia, for United States;

          Brian J. Beck, Assistant Federal Public Defender, Abingdon, Virginia, for Defendant.

          OPINION AND ORDER

          James P. Jones United States District Judge.

         Harry Dean Hunnell is charged with violating various conditions of his supervised release by, among other things, using marijuana and failing drug tests for marijuana and methamphetamine. The government argues that Hunnell's conduct constitutes a Grade B violation under the policy statements of the U.S. Sentencing Guidelines Manual (USSG) because his drug use constituted felony drug possession. Hunnell contends that he has a Grade C violation because the evidence does not show that he possessed the drugs. For the following reasons, I find that Hunnell committed a Grade B violation by culpably using, and thereby possessing, controlled substances.

         I. In 1994 Hunnell was convicted in this court and was sentenced to incarceration to be followed by a term of supervised release. In 2007, while serving the term of supervised release, Hunnell was found to have violated the conditions of his supervision by using drugs and failing to report contact with law enforcement. He was sentenced to eight months imprisonment to be followed by a 28-month term of supervised release. Because he also had a lengthy state sentence, Hunnell did not begin his federal supervised release until July 16, 2018.

         On February 7, 2019, Hunnell's probation officer petitioned the court to issue a warrant for Hunnell's arrest, alleging that he had violated the conditions of his supervised release because he had failed drug tests for marijuana and methamphetamine and admitted to using marijuana, among other things. The government argues that Hunnell's conduct is a Grade B violation of the conditions of his supervised release because his drug use constituted drug possession by a person subject to felony punishment by reason of his previous drug convictions.[1]

         The court has received evidence relating to the present issue, thereafter taking under advisement the appropriate grade of the violation. This Opinion resolves that question, which is simply whether “use” of a controlled substance under the facts of this case constitutes “possession.”

         The basic facts are uncontested. Hunnell has admitted that he had violated his supervised release by using marijuana and methamphetamine. He objects to the government's contention that this constitutes a Grade B violation, arguing that although he admitted to using controlled substances, the evidence does not show that he possessed them, and thus his conduct does not fall under 21 U.S.C. § 844.

         On August 14, 2018, Hunnell failed a urine screen for marijuana and initially denied using marijuana but later admitted to having done so with friends. On September 24, 2018, Hunnell also tested positive for marijuana and Gabapentin, for which he had a prescription. Hunnell again initially denied using marijuana but later admitted to having done so with friends. On January 28, 2019, Hunnell tested positive for methamphetamine and denied having used it.

         II.

         The government must prove a supervised release violation by a preponderance of the evidence. 18 U.S.C. § 3583(e)(3). “This standard requires only that the existence of a fact be more probable than its nonexistence.” United States v. Padgett, 788 F.3d 370, 374 (4th Cir. 2015) (internal quotation marks and citation omitted).

         In the Fourth Circuit, “[v]oluntary and knowing ingestion of a controlled substance constitutes possession of that substance.” United States v. Griffin, No. 99-4292, 1999 WL 1080107, at *1 (4th Cir. Nov. 29, 1999) (unpublished) (citing United States v. Clark, 30 F.3d 23, 25 (4th Cir. 1994)). If 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.'”[2] Clark, 30 F.3d at 26 (quoting United States v. Courtney, 979 F.2d 45, 49 (5th Cir. 1992)). Use is culpable unless it was unknowing, involuntary, or mistaken, or consisted of innocent ingestion or inhalation of a controlled substance. Id. at 26 n.2.

         Here, although Hunnell admits that he used marijuana and methamphetamine, he argues that the evidence does not show that he possessed these controlled substances. Instead, he argues that it is possible to use controlled substances without possessing them, such as by third-party injection or inhalation of secondhand smoke. However, I find that the facts show that Hunnell culpably used marijuana and methamphetamine.

         First, Hunnell failed three drug tests. It is unlikely that on each of the three occasions, his admitted drug use was by third-party injection, innocent inhalation, or other unknowing or involuntary means. Moreover, prior conduct may be evidence of knowledge, absence of mistake, or lack of accident. Fed.R.Evid. 404(b). Hunnell has seven prior convictions for drug-related offenses, four of which were for drug possession. In addition, a defendant's “false explanations that will aid his defense are clearly admissible to prove his guilty state of mind.” United States v. Hughes, 716 F.2d 234, 240-41 (4th Cir. 1983). After each of his failed drug tests, Hunnell initially denied his drug use but subsequently admitted it. Taken together, these facts show by a preponderance of the evidence that ...


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