                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               ______________

                                     No. 11-1818
                                   ______________

                           UNITED STATES OF AMERICA

                                           v.

                                  SHAWN THOMAS
                            also known as MALIK BROWN

                                        Shawn Thomas,

                                                             Appellant
                                   ______________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                          (D.C. Crim. No. 2-08-00558-001)
                     Honorable Gene E.K. Pratter, District Judge
                                  ______________

                      Submitted under Third Circuit LAR 34.1(a)
                                 December 16, 2011

       BEFORE: SLOVITER, VANASKIE, and GREENBERG, Circuit Judges

                              (Filed: December 30, 2011)
                                    ______________

                              OPINION OF THE COURT
                                  ______________

GREENBERG, Circuit Judge.

      This matter comes on before this Court on appellant Shawn Thomas’s appeal from

a judgment of conviction and sentence in this criminal case entered on March 25, 2011,
following Thomas’s conviction at a jury trial and subsequent sentencing on all eight

counts of an indictment charging him with drug and weapon possession offenses. In

particular, the indictment charged Thomas with: (1) conspiracy to distribute and possess

with intent to distribute cocaine base, in violation of 21 U.S.C. § 846 (Count One); (2)

distribution of five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(B) (Count Two); (3) distribution of five grams or more of cocaine base within

1,000 feet of a school, in violation of 21 U.S.C. § 860(a) (Count Three); (4) distribution

of 50 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)

(Counts Four and Five); (5) possession of cocaine base with intent to distribute, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count Six); (6) possession of a firearm

in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c) (Count Seven); and

(7) possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1)

(Count Eight).

       On May 17, 2010, following his conviction, Thomas filed a motion for a judgment

of acquittal under Federal Rule of Criminal Procedure 29 or, in the alternative, for a new

trial under Federal Rule of Criminal Procedure 33. On December 22, 2010, the District

Court denied Thomas’s motion pursuant to its comprehensive memorandum opinion of

that day.

       On March 22, 2011, the District Court sentenced Thomas to a total custodial term

of 180 months divided between 120 months for the drug and section 922(g) offenses

(Counts One through Six and Eight), and a mandatory consecutive sentence of 60 months

for the section 924(c) offense (Count Seven). The Court also imposed a five-year term of

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supervised release to follow the service of the custodial sentences and a $700 special

assessment. In sentencing Thomas, the Court did not apply the Fair Sentencing Act of

2010, Pub. L. No. 111-220, 124 Stat. 2372, 21 U.S.C. § 841(b)(1)(B)(iii). That act had

become law on August 3, 2010, after Thomas committed the offenses in this case but

before the court sentenced him. Congress enacted the Fair Sentencing Act to reduce the

disparity in sentences between those imposed for powder and crack cocaine convictions.

Following his sentencing Thomas appealed.

       On this appeal Thomas contends that: (1) no rational juror could have found

beyond a reasonable doubt that he possessed a firearm in furtherance of a drug trafficking

crime inasmuch as the government did not establish that he even possessed a firearm

within the meaning of 18 U.S.C. § 924(c) and thus the District Court should have

acquitted him on Count Seven; and (2) the District Court abused its discretion in

sentencing him without applying the Fair Sentencing Act and thereby imposing a

sentence exceeding that which would have been imposed if the Court applied the act.

Except for the conviction on Count Seven, he does not challenge his convictions.

       The District Court had jurisdiction under 18 U.S.C. § 3231 and we have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. On this appeal we exercise

plenary review of the District Court’s disposition of both issues that Thomas raises, the

sufficiency of the evidence issue because we are examining the evidence supporting the

verdict in making this determination, see United States v. Starnes, 583 F.3d 196, 206 (3d

Cir. 2009), and the sentencing issue because it raises a question of law. See United States

v. Reevey, 631 F.3d 110, 112 (3d Cir. 2010). In making our review we apply a

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deferential standard in deciding whether the jury verdict rested on legally sufficient

evidence. Accordingly, we do not weigh the evidence or determine the credibility of the

witnesses. Rather, we view the evidence in the light most favorable to the government,

and will sustain the verdict if any rational trier of fact could have found that the evidence

was sufficient to establish that the essential elements of the possession of a firearm

charge at issue on this appeal existed beyond a reasonable doubt. See United States v.

Dent, 149 F.3d 180, 187 (3d Cir. 1998).

       After our review of this matter we have concluded that we cannot add anything to

the District Court’s analysis in its opinion of December 22, 2010. We simply note that

the jury readily could have inferred from the evidence to which the Court referred in its

December 22, 2010 opinion that Thomas possessed the weapon involved in this case and

that he did so in furtherance of his drug trafficking offenses.

       Thomas, however, is correct when he contends that the District Court should have

applied the Fair Sentencing Act in his case and the government concedes this point. See

United States v. Dixon, 648 F.3d 195, 203 (3d Cir. 2011). Thus, he must be resentenced.

       For the foregoing reasons we will affirm the judgment of conviction and sentence

of March 25, 2011 to the extent that the judgment reflects Thomas’s convictions but will

reverse the judgment to the extent that it reflects the sentence imposed on him. We will

remand the matter to the District Court for resentencing.




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