[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 13, 2006
No. 06-12309 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 92-00162-CR-E
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARVIN C. THOMPSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(December 13, 2006)
Before DUBINA, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Marvin C. Thompson appeals the district court’s order revoking
his supervised release and imposing a 46-month imprisonment sentence. At the
revocation hearing, Lt. Steven Woods testified that, on November 17, 2005, he
discovered, in the driver’s seat of Thompson’s car, a fanny pack containing crack
cocaine and a firearm. During his cross examination, Lt. Woods acknowledged
that Thompson’s ticket number from the November incident was out of sequential
order from other tickets that he had issued before and after the incident, and he had
pulled Thompson over for traffic violations twice, following the incident. The
district court revoked Thompson’s supervised release, after finding that he had
possessed crack cocaine and a firearm.
On appeal, Thompson argues that the government failed to prove by a
preponderance of the evidence that he violated the conditions of his supervised
release because: (1) there was evidence that other people had opportunities to leave
the contraband in his car without his knowledge; and (2) there was no evidence
presented showing that he had actual or constructive possession of the contraband.
“A district court’s revocation of supervised release is reviewed under an
abuse of discretion standard.” United States v. Frazier, 26 F.3d 110, 112 (11th Cir.
1994). The revocation of supervised release is authorized when a court finds that a
defendant violated a term of his supervised release by a preponderance of the
evidence. 18 U.S.C. § 3583(e)(3); see also Johnson v. United States, 529 U.S. 694,
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700, 120 S. Ct. 1795, 1800, 146 L. Ed. 2d 727 (2000).
Possession can be either actual or constructive. United States v. Faust, 456
F.3d 1342, 1345-46 (11th Cir. 2006) (controlled substance), cert. denied, ___ S.
Ct. ___ (U.S. Nov. 13, 2006) (No. 06-7242); United States v. Gunn, 369 F.3d
1229, 1235 (11th Cir.) (firearm possession), cert. denied, Cantillo v. U.S., 543 U.S.
937, 125 S. Ct. 324 (2004). Constructive possession need not be exclusive and
“can be established by showing ownership or dominion and control over the drugs
or over the premises on which the drugs are concealed.” United States v. Poole,
878 F.2d 1389, 1392 (11th Cir. 1989) (holding evidence sufficient to prove
constructive possession where, although defendant did not have exclusive control
over house where substance was found, she owned, exercised dominion, and
control over the house).
After reviewing the record, we conclude that the district court did not abuse
its discretion by revoking Thompson’s supervised release. The evidence showed
that authorities discovered a fanny pack, containing crack cocaine, and a firearm,
in the driver’s seat of Thompson’s vehicle, shortly after he had been driving it in
circumstances suggesting that he may have been involved in a drug deal. This
evidence established that, more likely than not, Thompson constructively
possessed the contraband.
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Thompson next argues that the district court failed to give adequate
consideration to evidence showing that Lt. Woods’s testimony was incredible and
biased, as indicated by his testimony that he issued Thompson a ticket number out
of sequence from his previous tickets, and evidence regarding Lt. Woods’s
harassment of Thompson via multiple traffic stops. He contends that the district
court made an erroneous credibility determination because: (1) its factual findings
mirrored Lt. Wood’s testimony; and (2) it did not discuss whether Lt. Wood’s
rendition of the events was to be believed. Lastly, he argues that the record does
not reflect that the court considered the government’s lack of fingerprint evidence.
A person accused of violating a condition of supervised release is entitled to,
inter alia, an opportunity to appear, present evidence, and question any adverse
witness, and to make a statement and present evidence in mitigation.
Fed.R.Crim.P. 32.1(b)(2). “The credibility of a witness is in the province of the
factfinder and [we] will not ordinarily review the factfinder’s determination of
credibility.” United States v. Copeland, 20 F.3d 412, 413 (11th Cir. 1994).
Because the district court allowed Thompson to present his evidence and
cross-examine adverse witnesses, indicated that it had taken Thompson’s
arguments under advisement, and made factual findings that were largely
corroborated by Thompson’s own testimony, we conclude that the district court
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afforded Thompson adequate due process, and its factual and credibility
determinations were not clearly erroneous.
Thompson next argues that his revocation sentence was unreasonable
because the district court made no explicit statement indicating that it considered
any of the factors set forth in 18 U.S.C. § 3553, and there was nothing in the record
to imply that the district court considered them.
Sentences imposed for a violation of supervised release under an advisory
guidelines system are reviewed for “reasonableness.” United States v. Sweeting,
437 F.3d 1105, 1107 (11th Cir. 2006). Section 3583 of Title 18 provides that the
district court may:
revoke a term of supervised release, and require the defendant to serve
in prison all or part of the term of supervised release authorized by
statute for the offense that resulted in such term of supervised release
without credit for time previously served on postrelease supervision, if
the court, pursuant to the Federal Rules of Criminal Procedure
applicable to revocation of probation or supervised release, finds by a
preponderance of the evidence that the defendant violated a condition
of supervised release, except that a defendant whose term is revoked
under this paragraph may not be required to serve on any such
revocation more than 5 years in prison if the offense that resulted in
the term of supervised release is a class A felony[.]
18 U.S.C. § 3583(e)(3).
Further, Chapter 7 of the Sentencing Guidelines, which governs violations of
supervised release, contains policy statements, one of which, § 7B1.4, provides
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recommended ranges of imprisonment applicable upon revocation. See U.S.S.G.
§ 7B1.4. The applicable range in Thompson’s case, where he committed a Grade
A violation of his supervised release, had a criminal history category of IV, and
was on supervised release as a result of a sentence for a Class A felony, was 37 to
46 months imprisonment. See id. We consistently have held that the policy
statements of Chapter 7 are merely advisory and not binding. United States v.
Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000).
In sentencing a defendant, the factors that a district court should consider
include: (1) the nature and circumstances of the offense; (2) the history and
characteristics of the defendant; (3) the applicable guideline range; (4) the pertinent
Sentencing Commission policy statements; and (5) the need to avoid unwarranted
sentencing disparities. See 18 U.S.C. § 3553(a)(1), (2)(B)-(D), (4)-(7). The
district court is not required to discuss each of the § 3553(a) factors. United States
v. Talley, 431 F.3d 784, 786 (11th Cir. 2005).
Because the imposition of Thompson’s sentence reflected consideration of
several of the relevant factors under § 3553(a), the sentence was not unreasonable.
Accordingly, we affirm the district court’s order revoking Thompson’s supervised
release and Thompson’s sentence.
AFFIRMED.
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