Campbell

MEMORANDUM **

Ronald Boyd Campbell appeals from the district court’s revocation of his term of supervised release and imposition of 18 months in prison, challenging two of the five findings of violations of the terms of his release. We have jurisdiction under 28 U.S.C. § 1291 , and we vacate and remand for resentencing.

We review the revocation of supervised release for an abuse of discretion. United States v. Turner, 312 F.3d 1137, 1142 (9th Cir.2002). The court’s finding of a violation must be supported by a preponderance of evidence, and the government has the burden of proof. See id.

Campbell claims that the government was required to prove that his testing positive for cocaine was not a result of passive inhalation. Because he did not raise this issue at the hearing, our review is for plain error. See United States v. Portillo-Mendoza, 273 F.3d 1224, 1227 (9th Cir.2001). It was not plain error to conclude that Campbell violated the condition that he refrain from the unlawful use of any controlled substance. Unlike the defendant in United States v. Courtney, 979 F.2d 45 (5th Cir.1992), Campbell did not claim the positive test resulted from passive inhalation, present the…

concurring in part and dissenting in part.

In concur in the panel’s decision to affirm the district court’s finding that Campbell violated a condition of his supervised release by failing to refrain from the use of a controlled substance. In my view, that decision is sufficient for us also to affirm the sentence imposed. Thus, I dissent from the majority’s determination that Campbell must be resentenced.

The record indicates that the district court applied the Revocation Table in U.S.S.G. § 7B1.4(a) and sentenced Campbell to 18 months in prison based solely on his Grade B violation, namely, the possession of cocaine. The district court sentenced Campbell for his Grade B violation and not for any of the Grade C violations because U.S.S.G. § 7B1.1(b) states that “[w]here there is more than one violation of the conditions of supervision, ... the grade of the violation is determined by the violation having the most serious grade.” The district court thereby fully complied with § 7Bl.l(b). It makes no difference for sentencing purposes whether Campbell also committed three or four Class C violations. Accordingly, I would affirm the sentence imposed rather than remand for resentencing.