           Case: 16-11905   Date Filed: 02/06/2017   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-11905
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:08-cr-00067-CG-N-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

PAUL ANTONIO BURKE, JR.,

                                                         Defendant-Appellant.

                      ________________________

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

                            (February 6, 2017)

Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
              Case: 16-11905       Date Filed: 02/06/2017   Page: 2 of 5


      Paul Antonio Burke, Jr. challenges his 36-month sentence for violating a

condition of his supervised release. After serving 108 months in prison for

possession of crack cocaine with intent to sell, Burke was placed on supervised

release for 6 years. While out on supervised release, Burke sold marijuana and

ecstasy to a confidential informant. The police relayed this information to Burke’s

probation officer, who in turn filed a revocation petition. The district court held a

revocation hearing and sentenced Burke to 36 months for violating the conditions

of his release. On appeal, Burke challenges the procedural and substantive

reasonableness of his sentence.

      We review a district court’s conclusion that a defendant violated a condition

of supervised release for abuse of discretion. United States v. Copeland, 20 F.3d

412, 413 (11th Cir. 1994) (per curiam). We review a sentence that was imposed

upon revocation “of supervised release for reasonableness.” United States v.

Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). When reviewing the

reasonableness of a sentence, we first ensure that the district court did not commit

a significant procedural error, such as selecting a sentence based on clearly

erroneous facts. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007).

Second, we review the substantive reasonableness of a sentence under an abuse-of-

discretion standard. Id.

                           I.     Procedural Reasonableness


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      Burke argues that the district court procedurally erred by concluding that he

sold drugs. Burke contends that because there was no forensic evidence, such as

toxicology reports or field tests, the government cannot prove that Burke sold

drugs. A court may revoke a defendant’s supervised release and require the

defendant to serve all or part of the supervised release term in prison if the court

“finds by a preponderance of the evidence that the defendant violated a condition

of supervised release.” 18 U.S.C. § 3583(e)(3). The preponderance-of-the-

evidence standard “requires the trier of fact to believe that the existence of a fact is

more probable than its nonexistence.” United States v. Almedina, 686 F.3d 1312,

1315 (11th Cir. 2012) (internal quotation marks omitted). Here, the court based its

determination that Burke sold drugs on a police officer’s testimony (1) that Burke

sold marijuana and ecstasy to a confidential information on three occasions, (2)

that the encounters were video recorded, (3) that Burke admitted to the conduct,

and (4) that Burke cooperated with police to nab other drug dealers. This evidence

is sufficient to find that the substances sold by Burke were more likely to be drugs

than imitation drugs.

                           II.   Substantive Reasonableness

      Burke argues that his sentence is substantively unreasonable because the

court gave no weight to his cooperation with state authorities. A defendant’s

cooperation is relevant to multiple 18 U.S.C. § 3553(a) factors. However, a court


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must revoke the defendant’s supervised release and require the defendant to serve a

term of imprisonment if the defendant violated a condition of supervised release by

possessing a controlled substance. 18 U.S.C. § 3583(g). And “when revocation of

supervised release is mandatory under 18 U.S.C. § 3583(g), the statute does not

require consideration of the § 3553(a) factors.” United States v. Brown, 224 F.3d

1237, 1241 (11th Cir. 2000) (internal quotation marks omitted), abrogated on

other grounds, United States v. Vandergrift, 754 F.3d 1303, 1309 (11th Cir. 2014).

Because the district court determined that Burke violated a condition of his

supervised release by possessing a controlled substance, revocation of his

supervised release was mandatory under 18 U.S.C. § 3583(g). Therefore, the

district court was not required to consider the § 3553(a) factors when imposing a

sentence. See Brown, 224 F.3d at 1241.

      AFFIRMED.




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JORDAN, Circuit Judge, joined by ROSENBAUM, Circuit Judge, concurring:

      I concur in the court’s opinion because we are bound by United States v.

Brown, 224 F.3d 1237, 1241 (11th Cir. 2000), but I am persuaded by the Third

Circuit’s view that, in a mandatory revocation scenario under 18 U.S.C. § 3583(g),

a district court must consider the sentencing factors set forth in 18 U.S.C. §

3553(a). See United States v. Thornhill, 759 F.3d 299, 309 (3d Cir. 2014).




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