United States v. Anthown Latarius Swan

Case: 16-10415 Date Filed: 01/11/2017 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 16-10415
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-00463-ELR-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ANTHOWN LATARIUS SWAN,

Defendant - Appellant.

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Appeal from the United States District Court
for the Northern District of Georgia
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(January 11, 2017)

Before HULL, WILSON and JORDAN, Circuit Judges.

PER CURIAM:
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Anthown Swan, a federal prisoner, appeals the revocation of his term of

supervised release, raising two issues. Mr. Swan contends that the district court

erred when it determined that he had committed a Grade A violation without

explicitly finding that he had committed a controlled substance offense punishable

by a term of imprisonment exceeding one year. Mr. Swan also argues that the

district court erroneously failed to elicit objections from the parties after imposing

the sentence, as required by United States v. Jones, 899 F.2d 1097 (11th Cir.

1990). Having reviewed the record and considered the parties’ arguments, we now

affirm.

I

While Mr. Swan was on supervised release following a term of

imprisonment for various fraud convictions, the United States Probation Office

petitioned the district court for his arrest, alleging that he had violated the

conditions of his supervised release, including the prohibitions against committing

additional crimes and unlawfully possessing or using a controlled substance. The

petition specifically accused Mr. Swan of committing the Georgia state offenses of

(1) possession of marijuana over one ounce; (2) possession of marijuana with

intent to distribute; and (3) possession of drug-related objects.

The district court held a revocation hearing. Several witnesses testified,

including the arresting officer, Hannah James. Officer James explained how she

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pulled over Mr. Swan and smelled marijuana as she approached his vehicle. Upon

her request, Mr. Swan stepped out of the vehicle and told Officer James that all he

had was a small amount of marijuana in a compartment beside the steering wheel.

The search of the compartment revealed a small bag containing a couple grams of

marijuana and a stack of cash. The stack of cash alerted Officer James to the

possibility of more marijuana, so she decided to search the rest of the vehicle.

Officer James found a scale, a book bag containing empty sandwich bags,

and a mason jar containing 30 clear baggies of varied amounts of marijuana. She

also found hundreds of empty baggies. In Officer James’ experience, baggies and

scales are tools used by drug sellers. According to Officer James, she asked Mr.

Swan if the book bag belonged to him and he responded that it did. Officer James

then spoke to the female passenger in the vehicle, who said that Mr. Swan had

asked her to claim the marijuana as her own. After completing her search, Officer

James arrested Mr. Swan for possessing marijuana with the intent to distribute.

Relying on Officer James’ testimony, the district court found that the

government had proven by a preponderance of the evidence that Mr. Swan had

violated the conditions of his supervised release. It then held that Mr. Swan had

committed a Grade A violation and determined that his advisory Sentencing

Guidelines range was 30 to 36 months’ imprisonment.

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The district court asked if anyone had any objections to its guidelines

calculations. Defense counsel objected, among other things, to the Grade A

classification, arguing that the violation should be classified as a Grade C violation

because Mr. Swan was only in possession of a misdemeanor amount of marijuana.

The district court reiterated its belief that the violation was a Grade A violation

and, addressing Mr. Swan, stated that it was “not sure what the need was to, to get

further income in addition to what it seems like you were already doing . . . in

terms of working and furthering your education.” Tr. of Revocation Hearing, D.E.

31 at 53 (Jan. 27, 2016). Having determined that Mr. Swan violated the conditions

of his supervised release, the district court sentenced him to 30 months’

imprisonment with no additional supervised release to follow.

The district court then asked Mr. Swan if he understood his sentence, to

which he replied he did. After informing him of his appellate rights, the district

court asked “[a]nything else from you, [defense counsel]?” Id. at 54. Defense

counsel requested a self-surrender date and that Mr. Swan be placed in a facility

close to Georgia. The district court addressed these requests, asked the

government if it had anything else to say, and then, again, asked “anything else,

[defense counsel]?” Id. at 55–56. Defense counsel responded, “nothing further,”

and the hearing concluded. Id. at 56.

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II

We generally review the revocation of supervised release for abuse of

discretion. See United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014).

But we will not disturb a district court’s findings of fact unless they are clearly

erroneous. See United States v. Almand, 992 F.2d 316, 318 (11th Cir. 1993).

“[W]e may affirm for any reason supported by the record, even if not relied upon

by the district court.” United States v. Chitwood, 676 F.3d 971, 975 (11th Cir.

2012) (quoting United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008)).

III

According to Mr. Swan, the district court reversibly erred when it concluded

that he had committed a Grade A violation without explicitly finding that the

government had proven by a preponderance of the evidence that he had committed

a controlled substance offense punishable by more than a year of imprisonment.

The government responds that although the district court did not specify which of

the offenses Mr. Swan was being charged with constituted a Grade A violation, the

preponderance of the evidence demonstrated that Mr. Swan possessed a felony

amount of marijuana and that he possessed the drugs with the intent to distribute,

both of which constitute Grade A violations. The question is whether a

preponderance of the evidence in the record supports the finding that Mr. Swan

committed a Grade A violation of supervised release. See 18 U.S.C. § 3583(e)(3).

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The Sentencing Guidelines contain three categories of violations of

probation and supervised release: A, B and C. See U.S.S.G. § 7B1.1. Grade A

violations include felony criminal conduct constituting a crime of violence, a

controlled substance offense, or certain firearm offenses, and any other offense

punishable by more than 20 years’ imprisonment. See § 7B1.1(a)(1). The district

court must revoke the defendant’s supervised release upon finding a Grade A or B

violation. See § 7B1.3(a)(1).

The term “controlled substance offense,” for purposes of § 7B1.1, means “an

offense under federal or state law, punishable by imprisonment for a term

exceeding one year, that prohibits . . . the possession of a controlled substance . . .

with intent to manufacture, import, export, distribute, or dispense.” § 4B1.2(b)

(emphasis added). See also 7B1.1 cmt. n.3 (indicating that “controlled substance

offense” is defined in § 4B1.2). Under Georgia law, “any person” found “to

possess, have under his or her control, manufacture, deliver, distribute, dispense,

administer, purchase, sell, or possess with intent to distribute marijuana” commits

a felony that must be “punished by imprisonment for not less than one year.” Ga.

Code § 16-13-30(j)(1) & (2).

Though the district court did not specify the basis for its Grade A

determination, the colloquy with Mr. Swan reveals that the district court believed

Mr. Swan had intended to distribute the marijuana he was found possessing. When

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discussing his work history, the district court told Mr. Swan that it “was not sure

what the need was to, to get further income”—presumably, through the sale of

marijuana—“in addition to what it seems like [he was] already doing . . . in terms

of working and furthering [his] education.” D.E. 31 at 53. But regardless of

whether that was what the district court meant, the preponderance of the evidence

supports the finding that Mr. Swan committed a Grade A violation by being in

possession of marijuana with the intent to distribute.

In Officer James’ experienced opinion, the items recovered during the search

were consistent with drug distribution and not merely possession. According to

her testimony, a large stack of cash suggests—as it turns out, correctly in this

case—the presence of more marijuana, see id. at 13; the scale is a tool often

associated with drug distribution, see id. at 14; small, clear, plastic baggies are the

standard vehicle of marijuana retail, see id. at 15; and the presence of hundreds of

those baggies, and dozens missing, further indicates drug distribution, see id.

“Intent to distribute can be proven circumstantially from, among other

things, the quantity of [drugs] and the existence of implements such as scales

commonly used in connection with the distribution of [drugs].” United States v.

Poole, 878 F.2d 1389, 1392 (11th Cir. 1989). We have repeatedly held, consistent

with Officer James’ testimony, that the items found on Mr. Swan circumstantially

support a finding of possession with intent to distribute. Cf., e.g., United States v.

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Mercer, 541 F.3d 1070, 1076 (11th Cir. 2008) (holding evidence of plastic jeweler

bags together with drug ledger, amount of drugs, and lack of paraphernalia to

consume drugs was sufficient to support jury’s finding of intent to distribute, and

absence of money and digital scales was “not outcome determinative” in light of

other evidence).

Accordingly, we hold that the district court did not err when it determined

that Mr. Swan committed a Grade A violation of the conditions of his supervised

release. The preponderance of the evidence demonstrates that he possessed

marijuana with the intent to distribute.

IV

Mr. Swan also contends that the district court erred when it failed to elicit

objections from the parties at the conclusion of the revocation hearing as required

by Jones. In response, the government argues that the district court did comply

with Jones by affording Mr. Swan two opportunities to object, and that, even if we

find objections were not properly solicited, any technical Jones violation does not

necessitate remand because we have enough in the record for meaningful appellate

review. More specifically, the government maintains that, since the purpose of

Jones is to give the parties an opportunity to argue sentencing objections before the

district court, remand is unnecessary because Mr. Swan already raised his sole

objection on appeal to the district court.

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We held in Jones that district courts must afford parties the opportunity “to

object to the . . . ultimate findings of fact and conclusions of law and to the manner

in which the sentence is pronounced.” 899 F.2d at 1102. “Where the district court

has not elicited fully articulated objections following the imposition of sentence,

[we] vacate the sentence and remand for further sentencing in order to give the

parties an opportunity to raise and explain their objections.” Id. at 1103. But

because the purpose of the rule is to promote administrative efficiency by

“allow[ing] the district court the first opportunity to correct any error and to

provide for a complete record on appeal,” United States v. Costales, 5 F.3d 480,

483 n.3 (11th Cir. 1993), we have also held that remand is unnecessary where the

record on appeal sufficiently enables meaningful review. See United States v.

Cruz, 946 F.2d 122, 124 n.1 (11th Cir. 1991).

We need not decide whether the district court failed to properly elicit

objections after the imposition of sentence in violation of Jones because the parties

sufficiently developed the only issue on appeal—whether there was sufficient

evidence that Mr. Swan committed a Grade A violation—to enable meaningful

review. Mr. Swan first raised this argument on his own following Officer James’

testimony, see D.E. 31 at 40, and the government fully articulated a response, see

id. at 41. Mr. Swan then raised it again when the district court specifically asked

for objections after it calculated the advisory guidelines range. See id. at 51.

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Nothing new arose between his initial objection and the imposition of the sentence.

Any technical violation of Jones therefore does not warrant remand because Mr.

Swan fully articulated his argument to the district court and the record is sufficient

for meaningful appellate review. See United States v. Weir, 51 F.3d 1031, 1033

(11th Cir. 1995).

V

For these reasons, we affirm the revocation of Mr. Swan’s supervised release

and the imposition of a sentence of incarceration.

AFFIRMED.

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