                    Case: 11-10331         Date Filed: 07/25/2012   Page: 1 of 5


                                                                        [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-10331
                                        Non-Argument Calendar
                                      ________________________

                          D.C. Docket No. 3:10-cr-00071-WKW-WC-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellee,

                                                 versus

OYANGO LANAR TOLBERT,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

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

                                            (July 25, 2012)

Before TJOFLAT, CARNES and BLACK, Circuit Judges.

PER CURIAM:

         Oyango Lanar Tolbert appeals his convictions and sentences imposed for

possession with intent to distribute 50 grams or more of cocaine base and
                Case: 11-10331   Date Filed: 07/25/2012    Page: 2 of 5

possession with intent to distribute .38 grams of cocaine hydrochloride. 21 U.S.C.

§ 841(a)(1). Tolbert contends that: (1) there was insufficient evidence to support

his convictions; (2) the district court erred in not applying the Fair Sentencing Act

(FSA) during sentencing; and (3) his sentence is substantively unreasonable.

After review, we affirm Tolbert’s convictions, but vacate and remand for

resentencing.

                                          I.

      We review a challenge to the sufficiency of the evidence de novo, viewing

the evidence in the light most favorable to the Government. United States v.

Jones, 601 F.3d 1247, 1267 (11th Cir. 2010). Resolving all credibility choices in

support of the jury's verdict, we decide "whether the evidence . . . was sufficient to

support the jury's conclusion that the defendant was guilty beyond a reasonable

doubt." Id.

       “To convict a defendant of possession with intent to distribute controlled

substances, the Government must prove that he . . . possessed drugs with the intent

to distribute them.” United States v. Miranda, 425 F.3d 953, 959 (11th Cir. 2005).

Possession may be actual or constructive. United States v. Tinoco, 304 F.3d 1088,

1123 (11th Cir. 2002). Constructive possession occurs when the "defendant

maintained dominion or control over the drugs or over the premises where the

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drugs are located." United States v. Harris, 20 F.3d 445, 453 (11th Cir. 1994); see

also United States v. Leonard, 138 F.3d 906, 909 (11th Cir. 1998) ("Constructive

possession exists when a defendant has . . . dominion or control over the premises

or the vehicle in which the object is concealed." ).

      Viewing the evidence in the light most favorable to the Government, the

Government presented sufficient evidence at trial to support the jury’s conclusion

that Tolbert was guilty beyond a reasonable doubt of the crimes charged in the

indictment. The evidence at trial established that Tolbert had dominion and

control over the car where the crack cocaine was found. Tolbert was driving the

car when police attempted to pull him over, and there was testimony establishing

the car belonged to Tolbert’s girlfriend. There was also sufficient evidence to

show that Tolbert knowingly possessed the .38 grams of powder cocaine found on

his person. The cocaine was found inside a wad of money that was found inside

Tolbert’s front pocket. The large amount of drugs found, combined with the

alleged drug ledger and the large amount of cash support the jury’s finding that

Tolbert intended to distribute the drugs. Therefore, there was sufficient evidence

to support Tolbert’s convictions.

                                          II.

       The Supreme Court recently held the FSA applies to defendants sentenced

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after the Act’s effective date of August 3, 2010, but whose conduct occurred

before that date. Dorsey v. United States, Nos. 11-5683, 11-5721, 2012 WL

2344463 (U.S. June 21, 2012). Tolbert committed his offense on December 27,

2009, but was sentenced on January 12, 2011. Thus, the district court erred in not

applying the FSA during Tolbert’s sentencing.

      The Government contends the district court’s error in failing to apply the

FSA is harmless, however. See Fed. R. Crim. P. 52(a) (“Any error, defect,

irregularity, or variance that does not affect substantial rights must be

disregarded.”).

      [N]on-constitutional error is harmless if, viewing the proceedings in
      their entirety, a court determines that the error did not affect the
      [sentence], or had but very slight effect. If one can say with fair
      assurance . . . that the [sentence] was not substantially swayed by the
      error, the [sentence] is due to be affirmed even though there was
      error.

United States v. Hornaday, 392 F.3d 1306, 1315-16 (11th Cir. 2004) (internal

quotations and citations omitted).

      Despite the Government’s assertion, we cannot say the district court’s error

in failing to apply the FSA was harmless because we cannot say the district court

would have reached the same result even if it had applied the FSA. If the FSA had

been applied, the Guidelines range would have been 120-150 months’



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imprisonment, rather than 240 months’ imprisonment. The district court’s upward

variance was 36 months from the pre-FSA Guidelines range. Under the FSA

Guidelines range, the variance would be 126 months from the high end of the

Guidelines range. Although the district court extensively discussed Tolbert’s prior

criminal history and likelihood of recidivism in departing upward from the pre-

FSA Guidelines range, there is nothing in the record to indicate the district court

would have imposed this same sentence with a lower recommended Guidelines

range. In fact, the district court explicitly stated it had “considered the guideline

computations and . . . taken them under advisement” in arriving at the sentence.

Thus, we cannot conclude the error was harmless.

                                             III.

       The Government presented sufficient evidence to support Tolbert’s

convictions and we affirm his convictions. However, we vacate and remand for

resentencing.1

       AFFIRMED IN PART, VACATED AND REMANDED IN PART.




       1
         Because we vacate and remand for resentencing, we do not reach Tolbert’s third issue
of whether his sentence was substantively reasonable.

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