Case: 11-10331 Date Filed: 07/25/2012 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-10331
Non-Argument Calendar
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D.C. Docket No. 3:10-cr-00071-WKW-WC-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
OYANGO LANAR TOLBERT,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Alabama
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(July 25, 2012)
Before TJOFLAT, CARNES and BLACK, Circuit Judges.
PER CURIAM:
Oyango Lanar Tolbert appeals his convictions and sentences imposed for
possession with intent to distribute 50 grams or more of cocaine base and
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possession with intent to distribute .38 grams of cocaine hydrochloride. 21 U.S.C.
§ 841(a)(1). Tolbert contends that: (1) there was insufficient evidence to support
his convictions; (2) the district court erred in not applying the Fair Sentencing Act
(FSA) during sentencing; and (3) his sentence is substantively unreasonable.
After review, we affirm Tolbert’s convictions, but vacate and remand for
resentencing.
I.
We review a challenge to the sufficiency of the evidence de novo, viewing
the evidence in the light most favorable to the Government. United States v.
Jones, 601 F.3d 1247, 1267 (11th Cir. 2010). Resolving all credibility choices in
support of the jury's verdict, we decide "whether the evidence . . . was sufficient to
support the jury's conclusion that the defendant was guilty beyond a reasonable
doubt." Id.
“To convict a defendant of possession with intent to distribute controlled
substances, the Government must prove that he . . . possessed drugs with the intent
to distribute them.” United States v. Miranda, 425 F.3d 953, 959 (11th Cir. 2005).
Possession may be actual or constructive. United States v. Tinoco, 304 F.3d 1088,
1123 (11th Cir. 2002). Constructive possession occurs when the "defendant
maintained dominion or control over the drugs or over the premises where the
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drugs are located." United States v. Harris, 20 F.3d 445, 453 (11th Cir. 1994); see
also United States v. Leonard, 138 F.3d 906, 909 (11th Cir. 1998) ("Constructive
possession exists when a defendant has . . . dominion or control over the premises
or the vehicle in which the object is concealed." ).
Viewing the evidence in the light most favorable to the Government, the
Government presented sufficient evidence at trial to support the jury’s conclusion
that Tolbert was guilty beyond a reasonable doubt of the crimes charged in the
indictment. The evidence at trial established that Tolbert had dominion and
control over the car where the crack cocaine was found. Tolbert was driving the
car when police attempted to pull him over, and there was testimony establishing
the car belonged to Tolbert’s girlfriend. There was also sufficient evidence to
show that Tolbert knowingly possessed the .38 grams of powder cocaine found on
his person. The cocaine was found inside a wad of money that was found inside
Tolbert’s front pocket. The large amount of drugs found, combined with the
alleged drug ledger and the large amount of cash support the jury’s finding that
Tolbert intended to distribute the drugs. Therefore, there was sufficient evidence
to support Tolbert’s convictions.
II.
The Supreme Court recently held the FSA applies to defendants sentenced
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after the Act’s effective date of August 3, 2010, but whose conduct occurred
before that date. Dorsey v. United States, Nos. 11-5683, 11-5721, 2012 WL
2344463 (U.S. June 21, 2012). Tolbert committed his offense on December 27,
2009, but was sentenced on January 12, 2011. Thus, the district court erred in not
applying the FSA during Tolbert’s sentencing.
The Government contends the district court’s error in failing to apply the
FSA is harmless, however. See Fed. R. Crim. P. 52(a) (“Any error, defect,
irregularity, or variance that does not affect substantial rights must be
disregarded.”).
[N]on-constitutional error is harmless if, viewing the proceedings in
their entirety, a court determines that the error did not affect the
[sentence], or had but very slight effect. If one can say with fair
assurance . . . that the [sentence] was not substantially swayed by the
error, the [sentence] is due to be affirmed even though there was
error.
United States v. Hornaday, 392 F.3d 1306, 1315-16 (11th Cir. 2004) (internal
quotations and citations omitted).
Despite the Government’s assertion, we cannot say the district court’s error
in failing to apply the FSA was harmless because we cannot say the district court
would have reached the same result even if it had applied the FSA. If the FSA had
been applied, the Guidelines range would have been 120-150 months’
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imprisonment, rather than 240 months’ imprisonment. The district court’s upward
variance was 36 months from the pre-FSA Guidelines range. Under the FSA
Guidelines range, the variance would be 126 months from the high end of the
Guidelines range. Although the district court extensively discussed Tolbert’s prior
criminal history and likelihood of recidivism in departing upward from the pre-
FSA Guidelines range, there is nothing in the record to indicate the district court
would have imposed this same sentence with a lower recommended Guidelines
range. In fact, the district court explicitly stated it had “considered the guideline
computations and . . . taken them under advisement” in arriving at the sentence.
Thus, we cannot conclude the error was harmless.
III.
The Government presented sufficient evidence to support Tolbert’s
convictions and we affirm his convictions. However, we vacate and remand for
resentencing.1
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
1
Because we vacate and remand for resentencing, we do not reach Tolbert’s third issue
of whether his sentence was substantively reasonable.
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