United States v. Charles Jerome Thomas

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 10, 2008
No. 07-15984
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 07-00084-CR-J-33-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES JEROME THOMAS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 10, 2008)
Before CARNES, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Charles Jerome Thompson appeals his sentence of imprisonment for 52
months for possession of a firearm by a convicted felon. See 18 U.S.C. §§
922(g)(1), 942(a)(2). Thomas argues that the district court erred when it enhanced
his sentence for possession of crack cocaine when he was arrested. Thomas also
argues that his sentence was substantively unreasonable. We affirm.
We review the application of the guidelines de novo and findings of fact for
clear error. United States v. Lee, 427 F.3d 881, 892 (11th Cir. 2005). The
government must establish the facts necessary to support a sentencing
enhancement by a preponderance of the evidence. United States v. Askew, 193
F.3d 1181, 1183 (11th Cir. 1999).
Thomas argues that the government did not prove by a preponderance of the
evidence that the substance found in his pocket and backpack was crack cocaine.
Thomas contends that the government did not establish that the field test used on
the substance was reliable. Thomas’s argument fails.
The government satisfied its burden of proving by a preponderance of the
evidence that the substance was crack cocaine. See id. We do not require
chemical analysis of potential controlled substances for identification to support a
conviction. United States v. Baggett, 954 F.2d 674, 677 (11th Cir. 1992). We
permit the government to identify a controlled substance by circumstantial
evidence. Id. Because field testing is commonly used by law enforcement
officers to identify drugs and is comparable to evidence used to identify
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substances beyond a reasonable doubt, the district court did not clearly err when it
found that the substance was, as determined by the field test, crack cocaine.
We review the substantive reasonableness of a sentence for an abuse of
discretion. Gall v. United States, 552 U.S. ___, ___, 128 S. Ct. 586, 597 (2007).
This review involves an examination of the totality of the circumstances, including
an inquiry into whether the statutory factors, 18 U.S.C. § 3553(a), support the
challenged sentence. Id. at ___, 128 S. Ct. at 597-600. We defer to the judgment
of the district court in the weight given to the factors in section 3553(a) unless the
district court has made “a clear error of judgment” and has imposed “a sentence
that lies outside the range of reasonable sentences dictated by the facts of the
case.” United States v. McBride, 511 F.3d 1293, 1297-98 (11th Cir. 2007)
(citations omitted).
Thomas failed to establish that his sentence was substantively unreasonable.
The sentence of 52 months is one month more than the minimum sentence under
the advisory guideline range of 51 to 63 months. The district court weighed the
factors in section 3553(a) and did not make any clear error of judgment. The
district court reasonably determined that this sentence was not greater than
necessary to achieve the statutory purposes of sentencing.
Thomas’s sentence is AFFIRMED.
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