No Plain Error In Mandatory SR Revocation Due to Drug Possession

US v. Coston: Coston pleaded guilty to a drug charge in 2006 and had struggled with supervised release after serving his term of imprisonment. On his third supervised release term, after a series of personal tragedies, he returned to marijuana use and his probation officer ultimately sought to revoke him due to positive drug tests. The number of positives triggered the mandatory revocation provision of 18 USC 3583(g). The district court rejected Coston's request for treatment in lieu of revocation (the statute's one exception), revoked him, and imposed an above-the-Guideline sentence of 36 months in prison (with no additional term of supervised release).

The Fourth Circuit affirmed Coston's revocation and sentence. On appeal, for the first time, Coston argued that 3583(g) violated his right to due process in light of the Supreme Court's decision in US v. Haymond, in which it held that the provision requiring revocation and a mandatory 5-year sentence in some child pornography cases was unconstitutional. The court did not decide whether 3583(g) met the same fate, as under plain error review even if there was error that error was not plain. The court pointed to the Supreme Court's fractured decision - the judgment was 5-4 in favor of Haymond, but the majority split - and held that Justice Breyer's concurrence was the narrowest basis for the decision and thus controlling. That opinion, along with binding Fourth Circuit precedent, did not allow the court to conclude that any error was "clear" or "obvious," as required by plain error review. The court also concluded that Coston's sentence was not plainly unreasonable.