                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-15938
                                        Non-Argument Calendar
                                      ________________________

                               D.C. Docket No. 2:09-cr-14012-DLG-2



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                               versus

SPENCER ERVIN PRESTON,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________

                                           (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

                                         4
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

                                          5
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

                                          6
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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