United States of America, Plaintiff-appellee, v. Alonzo Leon Thomas, Defendant-appellant, 986 F.2d 1431 (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 Alonzo Leon Thomas appeals his sentence following a revocation of his supervised release. Mr. Thomas had previously been sentenced to ten months in prison and three years of supervised release. While on supervised release, Mr. Thomas violated the terms of that release by using a controlled substance. As a result of that violation, the district court sentenced Mr. Thomas to a prison term of twenty-one months. The court further ordered a twenty-five month term of supervised release following the new prison term. Mr. Thomas contends the district court erred in imposing the new 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. Thomas 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 twenty-one month 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. Thomas' term of imprisonment. Since "the record does not reveal whether or not the district court's decision to sentence [Thomas] ... 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.