United States v. Thompson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5247
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THERON JERMAINE THOMPSON, a/k/a Freak,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (4:08-cr-00004-FL-1)
Submitted: October 29, 2009 Decided: December 1, 2009
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James M. Ayers II, New Bern, North Carolina, for Appellant.
Anne Margaret Hayes, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Theron Jermaine Thompson pled guilty, without a plea
agreement, to conspiracy to possess with intent to distribute
more than fifty grams of crack cocaine, in violation of 21
U.S.C. §§ 841(a)(1), 846 (2006), three counts of possession with
intent to distribute five grams or more of crack cocaine, and
distribution of an unspecified quantity of crack cocaine, in
violation of 21 U.S.C. § 841(a)(1). The district court
sentenced Thompson to 320 months of imprisonment, five years of
supervised release, a $10,000 fine, and a $500 special
assessment, and Thompson timely appealed. On appeal, counsel
has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), stating that there are no meritorious issues
for appeal, but questioning whether the district court erred in
enhancing Thompson’s offense level for possession of a firearm
and for a management role in the offense. Thompson has also
filed a pro se supplemental brief. The Government declined to
file a brief. We affirm.
This court reviews a sentence for reasonableness under
an abuse of discretion standard. Gall v. United States, 552
U.S. 38, 51 (2007). This review requires appellate
consideration of both the procedural and substantive
reasonableness of a sentence. Id. After determining whether
the district court properly calculated the defendant’s advisory
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Guidelines range, this court must then consider whether the
district court considered the 18 U.S.C. § 3553(a) (2006)
factors, analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Id. at 49-51.
“Regardless of whether the district court imposes an above,
below, or within-Guidelines sentence, it must place on the
record an ‘individualized assessment’ based on the particular
facts of the case before it.” United States v. Carter, 564 F.3d
325, 330 (4th Cir. 2009). Finally this court reviews the
substantive reasonableness of the sentence, “taking into account
the ‘totality of the circumstances, including the extent of any
variance from the Guidelines range.’” United States v. Pauley,
511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 128 S. Ct. at
597).
Thompson argues that the district court erred in
enhancing his sentence for possession of a firearm, noting that
the authorities did not find a firearm in his possession, and
asserting that the evidence used by the district court was too
unreliable to support the enhancement. The district court’s
determination that the defendant warrants a sentence enhancement
is reviewed for clear error. United States v. Sayles, 296 F.3d
219, 224 (4th Cir. 2002). The Guidelines provide for a two-
level enhancement of a defendant’s offense level for drug
offenses “[i]f a dangerous weapon (including a firearm) was
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possessed,” and explain that the enhancement “should be applied
if the weapon was present, unless it is clearly improbable that
the weapon was connected with the offense.” U.S. Sentencing
Guidelines Manual (USSG) § 2D1.1(b)(1), comment. (n.3) (2008).
“In order to prove that a weapon was present, the Government
need show only that the weapon was possessed during the relevant
illegal drug activity.” United States v. McAllister, 272 F.3d
228, 234 (4th Cir. 2001). The Government need not prove the
possession of a firearm beyond a reasonable doubt, as the
standard of proof at sentencing is a preponderance of the
evidence. United States v. Brooks, 524 F.3d 549, 562-63 (4th
Cir. 2008). Our review of the record leads us to conclude that
the evidence was sufficient to support the enhancement, and the
district court did not err in imposing it.
Counsel next argues that the court erred in imposing
the three-level enhancement for Thompson’s role in the offense.
A “court’s ruling regarding a role adjustment is a factual
determination reviewed for clear error.” United States v.
Kellam, 568 F.3d 125, 147-48 (4th Cir. 2009). A defendant
qualifies for a three-level enhancement if he “was a manager or
supervisor (but not an organizer or leader) and the criminal
activity involved five or more participants or was otherwise
extensive.” USSG § 3B1.1(b). “Leadership over only one other
participant is sufficient as long as there is some control
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exercised.” United States v. Rashwan, 328 F.3d 160, 166 (4th
Cir. 2003). We conclude that the evidence was sufficient to
establish that Thompson was a manager or supervisor of a
criminal activity that involved at least five individuals. The
district court properly imposed the leadership enhancement.
In accordance with Anders, we have examined the entire
record for any meritorious issues and have found none. We have
considered the arguments in Thompson’s pro se supplemental brief
and find them to be without merit. Accordingly, we deny
Thompson’s pro se “motion for leave of court for prepayment of
forensic chemist,” deny his pro se “motion for leave of court
for discovery and/or correction of the record,” deny counsel’s
motion to withdraw from representation, and affirm Thompson’s
convictions and sentence. This court requires that counsel
inform Thompson, in writing, of the right to petition the
Supreme Court of the United States for further review. If
Thompson requests that a petition be filed, but counsel believes
that such a petition would be frivolous, then counsel may move
in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
Thompson.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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