United States of America, Plaintiff-appellee, v. James Arthur Miller, Defendant-appellant, 986 F.2d 1430 (10th Cir. 1993)

Before SEYMOUR, BARRETT and TACHA, Circuit Judges.

ORDER AND JUDGMENT^* 

SEYMOUR, Circuit Judge.

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); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Appellant James Arthur Miller appeals his sentence following a revocation of his supervised release. Mr. Miller had previously been sentenced to six months in prison and three years of supervised release. While on supervised release, Mr. Miller violated the terms of that release by using a controlled substance. As a result of that violation, the district court sentenced Mr. Miller to a prison term of one year, imposing the statutory minimum provided by 18 U.S.C. § 3583(g). The court further ordered a twenty-five month term of supervised release following the new prison term. Mr. Miller contends the district court erred in imposing the twelve month prison term under section 3583(g) for "possession" of a controlled substance, asserting that "use" of a controlled substance does not equate with "possession." Further, Mr. Miller argues that the twenty-five months of additional supervised release is in excess of the term authorized by law.

We have recently addressed both of these issues in United States v. Rockwell, --- F.2d ----, No. 92-6121, 1993 WL 16352 (10th Cir. Jan. 29, 1993). In Rockwell, we held that the presence of a controlled substance in the body of a person on supervised release constitutes possession for the purposes of 18 U.S.C. § 3583(g). We also held that a district court may not impose both incarceration and further supervised release upon revocation of the originally-imposed supervised release. Under this analysis, we find no error in the district court's imposition here of a one year sentence for the possession of a controlled substance. However, the district court erred by imposing an additional twenty-five months of supervised release at the end of Mr. Miller's term of imprisonment. Since "the record does not reveal whether or not the district court's decision to sentence [Miller] to the statutory minimum of twelve months in prison was affected by the imposition of further supervised release," Rockwell, 1993 WL 16352 at * 5, we remand for reconsideration of the term of incarceration to be imposed.

REVERSED AND REMANDED.