United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 2, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-61078
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREG THOMAS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 02-CR-80-ALL
--------------------
Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Gregory Thomas appeals the sentence
imposed following his guilty plea to distribution of 50 grams or
more of cocaine base. Thomas argues that the district court
clearly erred by enhancing his offense level pursuant to U.S.S.G.
§ 2D1.1(b)(1) based on the court’s determination that Thomas
possessed a firearm in connection with the controlled substance
offense. Without expressing any opinion as to the facts of the
case, we hold that the district court erred as a matter of law by
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
requiring Thomas to prove that the § 2D1.1(b)(1) enhancement did
not apply. Instead, the court should have required the government
prove, by a preponderance of the evidence, that Thomas’s sentence
should be enhanced. See United States v. Cooper, 274 F.3d 230, 245
(5th Cir. 2001).
Accordingly, Thomas’s sentence is VACATED and the case is
REMANDED for proceedings consistent with this opinion.
VACATED AND REMANDED.
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