United States of America v. Anthony Shockey

In the
United States Court of Appeals
For the Seventh Circuit
No. 19-1308
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
A NTHONY SHOCKEY ,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:15-cr-00016-RLM-MGG-1 — Robert L. Miller, Jr., Judge.
A RGUED OCTOBER 2, 2019 — D ECIDED OCTOBER 22, 2019
Before BAUER , R IPPLE , and HAMILTON, Circuit Judges.
BAUER , Circuit Judge. Anthony Shockey appeals from the
district court’s order revoking his supervised release and
imposing a 15-month prison sentence. The district court found
that Shockey not only used methamphetamine but also
possessed it, a Grade B violation of one of his supervised-
release conditions. Shockey challenges this classification.

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2 No. 19-1308
Because the district court reasonably could infer possession
from use, we affirm the judgment.
While on supervised release for possessing a firearm as a
felon, 18 U.S.C. § 922(g)(1), Shockey tested positive for meth-
amphetamine, which he later admitted using. Because Shockey
violated the condition that he not use a controlled substance,1
a probation officer petitioned to revoke his supervision. The
officer prepared a “Summary Report of Violations” charging
Shockey with a Grade B violation for conduct constituting an
offense punishable by a prison term exceeding one year.
See U.S.S.G. § 7B1.1(a)(2).
At his revocation hearing, Shockey asked the district court
to find that he had merely used methamphetamine, rather than
possessed it. (Use is a less serious Grade C that does not
mandate revocation. See U.S.S.G. § 7B1.3(a)(1)). His conduct, he
argued, violated the requirement of his supervised-release
condition to refrain from using drugs—a violation that is not
a felony, but instead merely a Grade C violation of “any other
condition of supervision.”
The district court rejected Shockey’s argument. It found
that the Guidelines could not be “reasonably read to make this
a Grade C violation”; the violation had to be “either a Grade A
or a Grade B.” The court implicitly accepted the government’s
reliance on United States v. Trotter, 270 F.3d 1150, 1153 (7th Cir.
1 Condition 3 stated: “The defendant shall not unlawfully use any controlled
substance, including marijuana, and shall submit to one drug test within 15
days of the beginning of supervision and at least 2 periodic tests after that
for use of a controlled substance.”

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No. 19-1308 3
2001), which held that marijuana use supports an inference of
marijuana possession. The district court thus found that
Shockey had both possessed and used methamphetamine—a
Grade B violation that corresponded to a sentencing range of
21 to 24 months in prison. The court sentenced him below that
range to 15 months, acknowledging the need for a “significant
period of incarceration” but recognizing that Shockey had
stayed sober for 7 months before using methamphetamine and
committed no other crimes.
On appeal, Shockey maintains that the district court erred
in classifying his violation as Grade B without finding that he
violated any law prohibiting possession of a controlled
substance that was statutorily punishable by more than a year
in prison. Although it would have been good practice for the
court to cite a specific statute, Shockey was entitled only to fair,
written notice of the alleged conduct underlying his Grade B
violation. See United States v. Lee, 795 F.3d 682, 686–87 (7th Cir.
2015) (citing Fed. R. Crim. P. 32.1(b)(2)). Here, Shockey was
notified before the hearing by the probation officer in writing
that he was alleged to have violated § 35-48-4-6.1 of the Indiana
Code (titled “Possession of methamphetamine”), and that this
constituted a Grade B violation because the offense is punish-
able by more than one year in prison. Moreover, in the district
court Shockey did not dispute that possession of methamphet-
amine is punishable as such. Because the report plainly
identified the statute that Shockey was alleged to have violated
and the district court resolved all issues of fact on the record,
no error occurred. See United States v. Tapia, 610 F.3d 505, 513
(7th Cir. 2010).

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4 No. 19-1308
Shockey relatedly argues that his use of methamphetamine
did not require a finding that he also possessed methamphet-
amine. But he misapprehends the district court’s ruling. The
court did find that he possessed methamphetamine, which in
Indiana is punishable by more than a year in prison. See Ind.
Code §§ 35-48-4-6.1, 35-50-2-7. The district court reasonably
could infer possession from use. See United States v. Barnes,
883 F.3d 955, 958 (7th Cir. 2018); United States v. Trotter,
270 F.3d 1150, 1153 (7th Cir. 2001). “Inferring possession of a
drug from the consumption of that drug is just as sensible as
inferring, from the statement ‘I ate a hamburger for lunch,’ that
the person possessed the hamburger before wolfing it down.”
Trotter, 270 F.3d at 1153.
AFFIRMED

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