Fourth Circuit: Failed Drug Tests Are Grade C Violations Unless the Revocation Petition Charges a Felony Drug Offense

1. Introduction

Naeem Deonte Jones, originally convicted of Hobbs Act robbery and brandishing a firearm, began violating supervised-release conditions almost immediately after his January 2024 release. The Probation Officer sought revocation based on four alleged violations, including (as relevant on appeal) repeated positive drug tests under a testing/treatment condition.

At revocation, the district court treated the failed drug tests as the “most serious violation” and, without explanation, classified them as a Grade B violation. That classification increased the advisory Chapter 7 range and became the platform for an upward-variant prison term. The Fourth Circuit vacated and remanded, holding the failed-drug-test charge was Grade C because the petition alleged only a condition violation, not a felony drug offense.

A second issue surfaced during appellate argument: the revocation sentence appeared to exceed the supervised-release limit in 18 U.S.C. § 3583(h). The panel did not decide it (no briefing) but flagged it for the district court on remand.

2. Summary of the Opinion

• Error identified: After dismissal of the only felony allegation (counterfeit instruments), none of the remaining charged violations constituted an offense punishable by more than one year; thus, the “most serious” remaining violation was Grade C.
• Key factual anchor: Violation 2, as charged and read in court, alleged only that Jones “tested positive” on six occasions—i.e., a violation of a supervision condition.
• Government’s inference argument rejected: Even if drug “use” may sometimes be inferred from positive tests, the record did not show the district court actually made (or litigated) that inference; the court consistently treated the matter as failed tests/condition violation.
• Plain-error relief granted: The misgrading was plain, affected substantial rights (higher range and sentence), and undermined fairness because Jones was sentenced as if for a more serious, uncharged violation.
• Remedy: Vacatur and remand for resentencing using the proper Grade C calculation, with a caution to consider § 3583(h) limits.

3. Analysis

A. Precedents Cited

1) Plain-error framework and discretionary correction

• United States v. Green, 996 F.3d 176 (4th Cir. 2021): Cited for the three-part plain-error test and the additional discretionary step (correcting only when fairness/integrity/reputation is seriously affected).
  Influence here: The panel methodically applied Green’s structure to move from “error” to “plain” to “substantial rights,” then justified discretionary correction by stressing the basic unfairness of sentencing on a more serious, uncharged grade.
• United States v. Olano, 507 U.S. 725 (1993): Cited for the canonical articulation of Rule 52(b) plain-error components.
  Influence here: Anchored the panel’s conclusion that the Guidelines misgrading was reviewable and remediable despite the lack of objection below.
• United States v. Carthorne, 726 F.3d 503 (4th Cir. 2013): Quoted (via Green) for the discretionary correction standard (“miscarriage of justice” / “seriously affect the fairness, integrity or public reputation”).
  Influence here: Supported the court’s decision to exercise discretion, emphasizing procedural fairness and notice in revocation sentencing.

2) Inference of drug use from positive tests

• United States v. Hunnell, 794 F. App'x 325 (4th Cir. 2020) (per curiam): Cited for the proposition that illegal drug use/possession may be inferred from failed tests (with citations to Clark and Battle).
  Influence here: The panel accepted the general permissibility of inference as a concept, but used Hunnell to frame the real question: not “could” an inference be made, but “did” the district court make it on this record.
• United States v. Clark, 30 F.3d 23 (4th Cir. 1994) and United States v. Battle, 993 F.2d 49 (4th Cir. 1993): Both cited (via Hunnell) for allowing inference from test results.
  Influence here: These cases did not rescue the government because Jones was not charged with “use” or “possession” and the sentencing court did not articulate that it was finding an uncharged drug offense by inference.

3) Substantial-rights prejudice from sentencing error

• United States v. Nelson, 37 F.4th 962 (4th Cir. 2022) and United States v. Maxwell, 285 F.3d 336 (4th Cir. 2002): Cited to support the conclusion that the error affected substantial rights in sentencing.
  Influence here: They provided Fourth Circuit support for treating a Guidelines-range error that drives a higher sentence as prejudicial—especially where the district court explicitly used the erroneous range as the benchmark.

B. Legal Reasoning

1) The “grade” is determined by the charged conduct and the most serious proven violation

Chapter 7 distinguishes between:

• Grade B: conduct constituting an offense punishable by more than one year (U.S.S.G. § 7B1.1(a)(2)).
• Grade C: conduct constituting an offense punishable by one year or less, or a violation of “any other condition of supervision” (U.S.S.G. § 7B1.1(a)(3)).

When multiple violations are present, the grade is the “most serious” (U.S.S.G. § 7B1.1(b)). Here, once the felony counterfeit-instruments charge was dismissed, the remaining alleged criminal conduct in Violation 1 was misdemeanor-level; the rest were pure condition violations. On that record, the maximum grade available from the petition was Grade C.

2) Notice and adjudication constraints in revocation proceedings

The opinion tightly linked Guidelines grading to revocation procedure: the court emphasized compliance with Fed. R. Crim. P. 32.1 and 18 U.S.C. § 3583(e)(3)—written notice of the alleged violations, a hearing, and findings on the violations charged. That procedural structure, in the panel’s view, guards against imposing sanctions for “more serious yet uncharged violations.”

Crucially, the district court:

• read Violation 2 as failed tests (not “use”/“possession” as a new offense),
• accepted admissions to that condition-violation charge, and
• entered a written judgment finding only positive tests.

Against that backdrop, the unexplained leap to Grade B at sentencing was treated as a “quick, unexplained maneuver” that undermined fairness.

3) The Supplemental Report could not “amend” the petition

The government relied on the Probation Officer’s Supplemental Report, which mischaracterized the failed tests as “use” constituting a felony-grade offense. The panel rejected this as a matter of function and authority: the report, “much like a presentence report,” had “no legal force to alter the petition for revocation,” and the petition “must stand on its own language.”

4) Plain error and prejudice were satisfied

The error was “plain” because it directly contradicted the Guidelines’ grade definitions and the petition’s allegations. It also affected substantial rights because the Grade B range (8–14 months) exceeded the Grade C range (5–11 months), and the district court used the erroneous range as the starting point for its upward variance to 19 months. The panel then exercised its discretion to correct the error because sentencing on a higher grade than charged and adjudicated “seriously affect[ed] the fairness” of the proceeding.

C. Impact

1) Charging discipline in revocation petitions

The decision incentivizes precision: if the government/probation seeks Grade B treatment based on inferred “use” or “possession” (or any felony-grade conduct), that theory must be reflected in the revocation petition and litigated/admitted accordingly. Courts in the Fourth Circuit may be less willing to treat ambiguous allegations (“tested positive”) as stand-ins for uncharged felony conduct.

2) Record clarity requirement for “inferred use”

Even where inference is legally permissible (as in United States v. Hunnell), this opinion highlights an evidentiary-and-procedural predicate: the district court must actually make the inference on the record in a way consistent with notice and the charged violation. Absent that, appellate courts may treat a Grade B designation as unsupported.

3) Renewed attention to 18 U.S.C. § 3583(h) arithmetic

Although not decided, the discussion signals that the Fourth Circuit is scrutinizing supervised-release recalculations and may expect district courts to show their work, especially in multi-count revocations with concurrent and consecutive structures.

4. Complex Concepts Simplified

• “Grade B” vs. “Grade C” violations (Chapter 7): A “grade” is a Guidelines label used to compute the advisory revocation range. Grade B generally requires conduct that would be a felony-level offense (punishable by >1 year). Grade C includes lesser offenses and plain violations of supervision conditions (like missing tests, leaving the district, or breaking monitoring rules).
• “Policy statements” (Chapter 7): Revocation ranges are advisory, but courts must consider them. An incorrect range still matters because it anchors the sentencing decision and can constitute reversible plain error if it drives the outcome.
• “Plain error” review: If the defendant did not object, the appellate court corrects only clear mistakes that likely affected the sentence and seriously undermine fairness/integrity of the proceeding.
• Why “notice” matters in revocation: Revocation is not a new criminal trial, but it still requires fair notice of what violations are being adjudicated. A defendant cannot fairly admit to one thing (failed tests) and be sentenced as if he admitted/proved another (a felony drug offense) without that being charged and addressed.
• 18 U.S.C. § 3583(h) in one sentence: If a court imposes prison upon revocation and then reimposes supervised release, the new supervised-release term must be reduced by the revocation prison time.

5. Conclusion

United States v. Naeem Jones establishes a clear, practice-driving boundary in Fourth Circuit revocation sentencing: failed drug tests, when charged as a testing-condition violation, are Grade C, and a court may not silently elevate them to Grade B based on an unarticulated inference or a probation report’s mislabeling. The decision reinforces notice-based fairness in Rule 32.1 revocation proceedings, treats Guidelines misgrading as consequential even under plain-error review, and spotlights the importance of § 3583(h) limits when reimposing supervised release after revocation imprisonment.