                                                       [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              MAY 11, 2006
                               No. 04-16659                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                   D. C. Docket No. 01-00077-CR-J-25HTS

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

ROY SHANE JACKSON,

                                                           Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                               (May 11, 2006)

Before TJOFLAT, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

     Roy Shane Jackson appeals his 36 month sentence imposed after the district
court revoked his supervised release. We review a district court’s decision to

revoke supervised release for abuse of discretion. United States v. Copeland, 20

F.3d 412, 413 (11th Cir. 1994). We review the legality of a sentence imposed

pursuant to revocation of a term of supervised release de novo, United States v.

Aimufa, 122 F.3d 1376, 1378 (11th Cir. 1997), and the ultimate sentence for

reasonableness, see United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir.

2005) (citing United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 767 (2005)).

                                           I.

      In June 2001, Jackson pleaded guilty to one count of conspiracy to distribute

cocaine and cocaine base in violation of 21 U.S.C. § 846 and was sentenced to 56

months imprisonment and 48 months of supervised release. On May 31, 2004,

Jackson was released from prison and began his term of supervised release.

      On August 29, 2004, Jackson was arrested in Gainesville, Florida. The

arresting officers found Jackson, Christopher Mosley, and three other individuals

sitting in a car parked in a parking lot outside a bar that was also about 500 feet

from a church. The officers observed Jackson in the driver’s seat with a small

plastic baggie containing a white powder and a straw on his lap. After one of the

officers reached into the vehicle and seized the baggie, Jackson turned toward the

back seat of the vehicle. The officers removed Jackson from the vehicle and



                                           2
arrested him. The officers then searched Jackson and found $2,950 in small bills

(mainly $20 denominations) in his pocket. During a search of the car, the officers

found in the back seat two other plastic baggies, one large and one small, both of

which also contained a white powder. The contents of all three bags seized from

Jackson and the vehicle later tested positive for cocaine. The smaller bags

contained approximately .02 grams of cocaine and the larger bag found in the back

seat of the car contained between 2.5 and 3.0 grams of cocaine. Jackson was

eventually charged under Florida law with possession of cocaine with intent to sell

within 1,000 feet of a place of worship and use of drug paraphernalia.

      In October 2004, the U.S. Probation Office filed a revocation petition

charging Jackson with committing four violations of the terms of his supervised

release. First, the petition charged that on August 29, 2004 Jackson committed

new criminal conduct while under supervision. Second, the petition charged that

Jackson traveled outside of the Middle District of Florida on August 29, 2004

without permission of his probation officer. Third, the petition charged that

Jackson provided four urine specimens in August 2004 that tested positive for

cocaine. Fourth, the petition charged that on September 17, 2004 Jackson failed to

participate in a drug treatment program. Jackson had been discharged from the

program due to unsatisfactory participation in group counseling sessions and



                                          3
continued drug use. The district court issued a warrant for Jackson’s arrest, and

Jackson was arrested at his residence on October 20, 2004.

      At a detention hearing before a magistrate judge on October 25, 2004, the

government presented a factual proffer that Jackson had been arrested on drug

charges on August 29, 2004 by Gainesville police officers. The government also

proffered that when Jackson was arrested at his residence on October 20, 2004 for

violation of his supervised release, U.S. Marshals found 3.3 grams of crack

cocaine, a substantial number of baggies consistent with drug distribution, and an

electronic scale in one of the two bedrooms in the residence. In response to

questioning from Jackson’s counsel, the government stated that it did not know if

anyone else lived in the residence and that it was not aware of any large amounts of

cash found there. The magistrate judge issued an order of detention pending a

revocation hearing.

      At his revocation hearing on December 13, 2004, Jackson admitted to all of

the allegations in the probation officer’s petition except for the charge that he

committed new criminal conduct on August 29, 2004. Each of the Gainesville

police officers testified to the facts of Jackson’s arrest on August 29, 2004.

Mosley testified that he did not see Jackson sell or distribute any drugs on that day.

Jackson testified and denied that he had possessed or sold cocaine on August 29,



                                           4
2004. Jackson also denied that there was cocaine in his lap when the officers first

saw him. He acknowledged that there was cocaine in the backseat of the car but

stated that he did not know how it got there. Jackson also stated that the money

belonged to his girlfriend and that he was just holding it for her.

      The district court found that based on his admission, Jackson had committed

the second, third and fourth charges listed in the revocation petition. The court

also found that Jackson had committed the offense of possession of cocaine with

intent to distribute, the first violation alleged in the revocation petition. The court

revoked Jackson’s supervised release.

      The government advocated a sentence of 36 months imprisonment. The

government argued that the evidence found at Jackson’s residence on October 20,

2004 showed that “even after his arrest down in Gainesville and his charges there

in the state, knowing that he was on extremely thin ice, [Jackson] continued to sell,

he continued to have the implements of distributing cocaine and trafficking

cocaine.” Jackson did not object to those statements. The government also argued

that even though the advisory sentencing range under the United States Sentencing

Guidelines was 24 to 30 months, Jackson should receive 36 months—equal to 24

months plus one year, which was the approximate amount of credit Jackson

received on his underlying sentence for participating in a drug treatment program



                                            5
while in prison. Jackson responded that he should not be punished for failing the

drug treatment program.

       Before sentencing Jackson, the district court stated: “If there is ever a case

that I’ve seen that warrants a sentence outside of the guidelines, this . . . is it. I

tried the first case, these guys were dealing dope all over Bradford County, Clay

County, so I’m pretty well familiar with this.” The court then found that Jackson

had committed a Grade A offense. The court stated that it was going to follow the

government’s sentencing recommendation, but for the reason that the evidence

found at Jackson’s home on October 20, 2004 showed that he had continued to sell

cocaine after his arrest on August 29, 2004. The court sentenced Jackson to 36

months imprisonment and 18 months of supervised release. Following the court’s

imposition of the sentence, Jackson was not given an opportunity to object to the

sentence at the end of the revocation hearing.

                                            II.

       Jackson first contends that the district court erred in finding that he

committed a Grade A supervised release violation. If the district court “finds by a

preponderance of the evidence that the defendant violated a condition of

supervised release,” it may revoke a term of supervised release and, after

considering certain of the factors in 18 U.S.C. § 3553(a), impose a sentence of



                                             6
imprisonment for the violation. 18 U.S.C. § 3583(e)(3). Section 3553 in turn

directs the district court to consult the relevant provisions of the United States

Sentencing Guidelines. 18 U.S.C. § 3553(a)(4)(B).

      Under U.S.S.G. § 7B1.1, Grade A supervised release violations include:

             conduct constituting (A) a federal, state, or local offense
             punishable by a term of imprisonment exceeding one
             year that (i) is a crime of violence, (ii) is a controlled
             substance offense, or (iii) involves possession of a
             firearm or destructive device of a type described in 26
             U.S.C. § 5845(a); or (B) any other federal, state, or local
             offense punishable by a term of imprisonment exceeding
             twenty years.

U.S.S.G. § 7B1.1(a)(1) (Nov. 1, 2004). Under Florida law, the possession of

cocaine “with intent to sell, manufacture, or deliver . . . in, on, or within 1,000 feet

of a physical place for worship” is a first-degree violation punishable by up to 30

years imprisonment. Fla. Stat. §§ 775.082(3)(b); 893.03(2)(a)(4); 893.13(1)(e).

Accordingly, that offense qualifies as a Grade A supervised release violation. See

U.S.S.G. § 7B1.1(a)(1)(B).

      The testimony of the arresting officers that they found multiple bags of

cocaine in the car (including one on Jackson’s lap), that Jackson turned toward the

back seat of the car where the one larger and one smaller bag of cocaine were

found, and that Jackson had a large amount of cash in his pocket provided a

sufficient basis for the district court to find by a preponderance of the evidence that

                                            7
Jackson possessed the drugs with intent to distribute within 1,000 of a physical

place of worship in violation of Florida law. Although Jackson and Mosley

testified to the contrary, “[t]he credibility of a witness is in the province of the

factfinder and this court will not ordinarily review the factfinder’s determination of

credibility.” See United States v. Copeland, 20 F.3d 412, 413 (11th Cir. 1994).

Accordingly, we conclude that the district court did not abuse its discretion in

finding that Jackson committed a Grade A supervised release violation.1

                                               III.

       Jackson also argues that the district court erred under United States v. Jones,

899 F.2d 1097 (11th Cir. 1990), overruled on other grounds, United States v.

Morrill, 984 F.2d 1136 (11th Cir. 1993), because it did not provide him with an

opportunity to object to his sentence at the end of the revocation hearing. In Jones,

this Court held that district courts must “elicit fully articulated objections,

following imposition of sentence, to the court’s ultimate findings of fact and

conclusions of law.” 899 F.2d at 1102. We described the remedy for a district



       1
         Although the government has argued in this appeal that simple possession under Florida
law qualifies as a Grade A supervised release violation, we are not precluded from considering
whether Jackson committed the offense of possession of cocaine with intent to distribute. See
United States v. Simmons, 368 F.3d 1335, 1342 (11th Cir. 2004) (stating, in a criminal case, that
“we have the authority to affirm the district court, even if it is on a ground other than that upon
which it based its decision”); United States v. Mejia, 82 F.3d 1032, 1034 (11th Cir. 1996)
(holding, on appeal of defendants’ convictions, that this Court “may affirm on any ground that
finds support in the record”).

                                                 8
court’s failure to elicit objections from a defendant to his sentence as follows:

      Where the district court has not elicited fully articulated objections
      following the imposition of sentence, this court will vacate the
      sentence and remand for further sentencing in order to give the parties
      an opportunity to raise and explain their objections. Where the district
      court has offered the opportunity to object and a party is silent or fails
      to state the grounds for objection, objections to the sentence will be
      waived for purposes of appeal, and this court will not entertain an
      appeal based upon such objections unless refusal to do so would result
      in manifest injustice.

899 F.2d at 1103.

      We have indicated that the procedure announced in Jones should be

followed in probation revocation hearings. See United States v. Milano, 32 F.3d

1499, 1503 (11th Cir. 1994) (determining that the district court provided the

defendant with the opportunity to make specific objections at his probation

revocation hearing, and because the defendant chose not to do so, there was no

Jones violation), superceded on other grounds, United States v. Cook, 291 F.3d

1297, 1300 n.3 (11th Cir. 2002). We have also stated that supervised release and

probation are “conceptually the same” and noted that “the courts treat revocations

the same whether they involve probation, parole, or supervised release.” United

States v. Frazier, 26 F.3d 110, 113 (11th Cir. 1994). The sentencing guidelines

themselves “treat[] violations of the conditions of probation and supervised release

as functionally equivalent.” U.S.S.G. Ch. 7, Pt. B, intro. cmt.



                                           9
      Accordingly, we hold that the district court in the present case committed a

Jones violation by failing to elicit objections from Jackson after sentencing him

following the revocation of his supervised release. Because of the fact-intensive

nature of Jackson’s argument that the district court erred in considering the drugs

and drug paraphernalia found at his home when he was arrested on October 20,

2004 and the paucity of evidence in the record on that issue, we are unable to

conduct meaningful appellate review of it. Cf. United States v. Cruz, 946 F.2d

122, 124 n.1 (11th Cir. 1991) (indicating that where a district court commits a

“technical violation of Jones,” this Court may proceed to the issues raised on

appeal if “the record is sufficient for meaningful appellate review”). Therefore, we

vacate Jackson’s sentence and remand for resentencing.

      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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