US v. Theron Thompson

Filing 920091201

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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. filed a pro se supplemental brief. file a brief. We affirm. Thompson has also

The Government declined to

This court reviews a sentence for reasonableness under an abuse of discretion standard. U.S. 38, 51 (2007). of both This the Gall v. United States, 552 review procedural Id. requires and appellate substantive

consideration

reasonableness of a sentence.

After determining whether

the district court properly calculated the defendant's advisory 2

Guidelines district

range, court

this

court

must 18

then

consider §

whether

the

considered

the

U.S.C.

3553(a)

(2006)

factors, analyzed any arguments presented by the parties, and sufficiently explained the selected sentence. "Regardless below, or of whether the district sentence, court it Id. at 49-51. an above, on the

imposes must

within-Guidelines

place

record an `individualized assessment' based on the particular facts of the case before it." 325, 330 (4th Cir. 2009). United States v. Carter, 564 F.3d 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. 219, 224 (4th Cir. 2002). level enhancement "[i]f a of a United States v. Sayles, 296 F.3d The Guidelines provide for a twodefendant's weapon 3 offense level a for drug was

offenses

dangerous

(including

firearm)

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 The Government need not prove the beyond a reasonable a doubt, as of the the

228, 234 (4th Cir. 2001). possession standard evidence. Cir. 2008). of a firearm at

of

proof

sentencing

is

preponderance

United States v. Brooks, 524 F.3d 549, 562-63 (4th 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 for a role adjustment is a factual v.

determination Kellam, 568

reviewed F.3d 125,

clear (4th

error." Cir.

United A

States

147-48

2009).

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." participant USSG § 3B1.1(b). is sufficient as "Leadership over only one other long 4 as there is some control

exercised." Cir. 2003). establish

United States v. Rashwan, 328 F.3d 160, 166 (4th We conclude that the evidence was sufficient to Thompson was a manager or supervisor of a The

that

criminal activity that involved at least five individuals. 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 inform Supreme and sentence. in the This of court the requires right to that counsel the If

Thompson, Court of

writing, United

petition review.

States

for

further

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

5

before

the

court

and

argument

would

not

aid

the

decisional

process. AFFIRMED

6