[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-15938
Non-Argument Calendar
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D.C. Docket No. 2:09-cr-14012-DLG-2
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
SPENCER ERVIN PRESTON,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 12, 2012)
Before HULL, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Spencer Preston appeals the revocation of his term of supervised release, 18
U.S.C. § 3583(e)(3). On appeal, he argues that the district court abused its
discretion in finding that he had violated the conditions of his supervised release.
For the reasons set forth below, we affirm the district court’s revocation of
Preston’s term of supervised release.
I.
In 2009, Preston pleaded guilty to maintaining a place for the purpose of
manufacturing and distributing crack cocaine, in violation of 21 U.S.C.
§ 856(a)(1), and possession of a firearm and ammunition by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). He was sentenced to a total term of
imprisonment of 16 months, a total term of supervised release of 2 years, and a
fine of $7,500.00. The conditions of supervised release specified that Preston was
not to commit another crime, “unlawfully possess a controlled substance,” or
distribute a controlled substance. In 2011, Preston’s probation officer filed a
petition recommending that Preston’s supervision be revoked because Preston had
violated two Florida criminal statutes. Specifically, he had committed the offenses
of: (1) trafficking in Roxicodone, a controlled substance; and (2) possessing
cocaine with the intent to sell.
The magistrate judge held a hearing on the petition, at which William
Jaques testified that he was a narcotics detective with the Martin County Sheriff’s
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Office. Jaques had learned, from another detective, that an informant had stated
that an individual would be driving a black pick-up truck on Palmetto Drive in
Jensen Beach, the truck would leave a house at a specific time, and there would be
crack cocaine and approximately 16 pills in the bed of the truck. Jaques and other
officers conducted surveillance of the house on August 25, 2011, and Jaques saw a
black truck pull away from the house at the time the informant had specified. He
had not seen Preston or anyone else place anything in the truck bed. Jaques
performed a traffic stop and asked Preston to step out of the truck. Jaques
searched the truck and noticed a rain gutter in the truck bed. After looking at the
gutter a few times, Jaques eventually found a brown paper bag inside the gutter.
Inside the bag were 66 Roxicodone pills, approximately 3.5 grams of hard cocaine,
and a small bag of powder cocaine. The Roxicodone pills were in a prescription
bottle with no label, and Preston did not have a prescription for the pills with him
at the time. A number of items were tested for fingerprints, and no fingerprints
were found on any of the tested items. Jaques believed that the truck was
registered to Preston Enterprises.
Preston argued that the government had proved that there were narcotics in
the truck, but not that Preston had put the drugs there or knew that they were there.
The lack of fingerprints on the items submitted for testing indicated that Preston
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did not know the drugs were in the truck. Additionally, the informant had not
identified Preston when providing information to the officers.
The magistrate stated that the government had not shown a violation of the
conditions of supervised release beyond a reasonable doubt, but it had met its
burden of establishing a violation based on the preponderance of the evidence
standard. Although the government’s case was weak as to Preston’s knowledge of
the narcotics, the informant had reliably informed the officers as to what drugs
would be found and where they would be found. The magistrate could not
speculate that someone else had planted the drugs in the truck. In a report and
recommendation, the magistrate reiterated his finding that the government had met
its burden of proof, but only barely. In support of his finding that the government
had shown that the violations had occurred, the magistrate discussed the
information provided by the informant, observing that the statements regarding the
type of vehicle, types of drugs, and the location of the drugs was accurate. Thus,
the magistrate recommended that the district court find that Preston had committed
both violations.
Preston objected to the report and recommendation, arguing that the
government had not met its burden of proof because there was no evidence that
Preston knew that there were drugs in the bed of the truck. The informant had not
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identified Preston, and the drugs were so well hidden that the officers did not find
them when they first searched the rain gutter. Preston was never seen in contact
with the items in the bed of the truck, and his fingerprints were not found on the
items in the truck bed.
At the sentencing hearing, Preston reiterated his argument regarding his lack
of knowledge of the drugs in the truck. He also noted that, although the truck was
registered to his company, he was not the only person who used the truck. The
district court found by a preponderance of the evidence that Preston had
committed the violations. The court noted that the informant’s statements were
double hearsay, and the court normally would not give such statements significant
weight. Here, however, the statements regarding the description of the truck, the
time the truck left the house, and what drugs were in the truck turned out to be
accurate. Preston, moreover, was operating the truck containing the narcotics.
Additionally, there was no testimony contradicting the above facts. Thus, the
court adopted the report and recommendation and revoked Preston’s supervised
release. The court then sentenced Preston to ten months’ imprisonment and two
years’ supervised release.
II.
We “review a district court’s revocation of supervised release for an abuse
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of discretion.” United States v. Cunningham, 607 F.3d 1264, 1266 (11th Cir.
2010). This standard of review “recognizes the range of possible conclusions the
trial judge may reach.” United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir.
2004) (en banc) (discussing the standard of review as it related to evidentiary
issues). Thus, when reviewing for an abuse of discretion, “we must affirm unless
we find that the district court has made a clear error of judgment, or has applied
the wrong legal standard.” Id. Under 18 U.S.C. § 3583(e)(3), a district court may
revoke supervised release and impose a prison sentence when it finds by a
preponderance of the evidence that the defendant violated a condition of his
supervised release. Cunningham, 607 F.3d at 1266. The preponderance standard
may be met if it is “more likely than not” that the defendant violated a condition of
his supervised release. See United States v. Cataldo, 171 F.3d 1316, 1322 (11th
Cir. 1999) (discussing the preponderance standard as it is applied to establishing a
factual basis of a sentence).
The district court did not abuse its discretion in finding by a preponderance
of the evidence that Preston had violated the conditions of his supervised release.
See Cunningham, 607 F.3d at 1266. Detective Jaques testified that an informant
had described a black pick-up truck that would leave a house on Palmetto Drive at
a specific time containing crack cocaine and pills in the truck bed. Jaques saw a
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truck matching the given description leave a house on Palmetto Drive at the time
the informant said the truck would be leaving. Furthermore, the truck contained
pills, hard cocaine, and powder cocaine, which corroborates the informant’s
statements that there would be crack cocaine and pills in the truck bed. As Preston
was driving the truck, which was registered to his company, in the location and at
the time when the informant stated the truck would have drugs in its bed, the
district court’s determination that it was “more likely than not” that Preston knew
that the drugs were in the truck bed was within “the range of possible
conclusions.” Cataldo, 171 F.3d at 1322; see also Frazier, 387 F.3d at 1259.
Thus, the court did not abuse its discretion in finding that Preston’s knowledge of
the drugs was established by a preponderance of the evidence.
For the foregoing reasons, we affirm the district court’s revocation of
Preston’s term of supervised release.
AFFIRMED.
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