United States v. Thomas

Opinion

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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