00-4185 U.S. v. Trotter

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“Of course use may support an inference of possession. A person might test positive for marijuana if he never touched the stuff but spent a lot of time around heavy smokers and ended up with some of the drug in his lungs. This is unlikely, but possible, and a district judge therefore might treat one or even two positive tests as inadequate to prove possession of the drug. But a judge also could infer from the presence of marijuana metabolites in the blood that the user possessed that drug, if only in the process of smoking a communal joint… No surprise, then, that we held in United States v. Young, 41 F.3d 1184, 1185 (7th Cir. 1994), that use of a drug implies its possession. (Indeed, Young suggested that use compels an inference of possession, a suggestion that may be overboard for a single positive drug test.)

“Unfortunately, a different panel of this court gave the answer ‘no’ in United States v. Wright, 92 F.3d 502 (7th Cir. 1996). Without citing Young or the decisions in other circuits, the panel in Wright opined that ‘testing positive for drug use is not an independent crime; it is only a violation of the terms of … supervised release. We note … that these kinds of violations are classified as Grade C under sec.7B1.1(a)(3).’ 92 F.3d at 506. Wright may have meant to say no more than that if the district judge declines to infer possession from use, then no ‘independent crime’ has been committed. But the flat assertion (which appears twice in Wright) that persons who test positive for drug use ‘are classified as Grade C’ violators implies that it would be improper to infer possession from use. That position is impossible to sustain. It would take normal fact-finding and inference-drawing out of the hands of district judges. Wright is best understood not to do such a thing. The statement that persons who test positive for drug use ‘are classified as Grade C’ violators is dictum in Wright – the district judge had found a Grade A violation, and the choice between Grade B and Grade C was not presented by the case. Unreasoned statements in our decisions should not be taken to overrule opinions of prior panels, such as Young. We disapprove the dictum in Wright and reiterate the holding of Young, which has such substantial support in other circuits (plus the norm committing inferences to the trier of fact).

“Finally, we must decide whether Trotter’s possession of marijuana was conduct ‘constituting any other federal, state, or local offense punishable by a term of imprisonment exceeding one year’ within the meaning of sec.7B1.1(a)(2). The answer is yes if the district court may consider Trotter’s prior drug conviction, and no otherwise. ‘Yes’ seems an apt answer; how can one determine whether an offense is ‘punishable’ by a particular term without considering all of the ingredients that set the maximum punishment? If a statute punished marijuana possession by two years in prison if the possession occurred within 1,000 feet of a school, and one month otherwise, the court would have to determine the distance from the school to know whether given conduct was punishable by more than a year in prison. Just so with a recidivist enhancement.”

Affirmed.

Appeal from the United States District Court for the Southern District of Illinois, Stiehl, J., Easterbrook, J.