United States v. Thompson

Court Case Details
Court Case Opinion




No. 08-5247










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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.


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


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


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


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


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


We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials


before the court and argument would not aid the decisional




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