United States v. Salem

MEMORANDUM *

Jason Ed Salem appeals the district court’s order revoking his supervised release and reimposing a twenty-four month prison sentence. The district court found that Salem violated the conditions of his supervised release by possessing burglary tools in violation of Cal.Penal Code § 466, methamphetamine in violation of Cal. Health & Safety Code § 11377 (a), and a hypodermic needle and syringe in violation of Cal. Bus. & Prof.Code § 4140.

As a preliminary matter, 18 U.S.C. § 3583 , the statute authorizing the revocation of supervised release, remains constitutional after United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005). United States v. Huerta-Pimen *639 tal, 445 F.3d 1220, 1224-25 (9th Cir.2006). Thus, Salem’s Booker/Apprendi challenge to the statute fails.

The district court clearly erred in finding that Salem possessed burglary tools in violation of Cal.Penal Code § 466, because Salem did not have these tools in his personal possession, as the statute requires. This error is immaterial, however, because the driving force behind Salem’s new sentence was the district court’s finding that he possessed methamphetamine, a hypodermic needle,…

concurring in part and dissenting in part.

I agree with the majority that Salem’s Booker/Apprendi challenge fails. I dis *640 agree with the majority, however, on whether the district court clearly erred in revoking Salem’s supervised release based on possession of drugs and drug paraphernalia. I believe the evidence is insufficient to show that Salem had constructive possession of the methamphetamine and drug paraphernalia found under the driver’s side sunvisor of a car not registered to Salem, where there was no clear evidence that Salem had ever been in the interior of the car in question.

The United States Probation Office filed a petition alleging that Salem had violated the conditions of his supervised release by, inter alia, possessing methamphetamine, a hypodermic needle, and a syringe. The undisputed evidence presented to the District Court on the drug possession charge was as follows: On September 23, 2004, Officer Nelson of the Riverside Police Department was patrolling the area around a motel. Officer Nelson saw Salem taking clothing items out of the open trunk of a Saturn parked in the laundry area of the Econo Lodge. Officer Nelson called out to Salem to ask if the…