                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 09-11766                ELEVENTH CIRCUIT
                                                          NOVEMBER 4, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                  D. C. Docket No. 97-00043-CR-3-LAC

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

KENYA PARKER,

                                                         Defendant-Appellant.


                       ________________________

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

                            (November 4, 2009)

Before CARNES, HULL and MARCUS, Circuit Judges.

PER CURIAM:
        Kenya Parker appeals his 30-month sentence imposed upon revocation of his

supervised release. After review, we affirm.

                                 I. BACKGROUND

        In 1997, Parker was convicted of conspiracy with intent to distribute cocaine

and cocaine base. The district court imposed a 120-month sentence, followed by

five years of supervised release. Parker began his supervised release on March 16,

2006.

        On August 29, 2007, Parker’s probation officer petitioned for revocation of

his supervised release, alleging that Parker had committed four violations: (1) a

positive drug test for marijuana use in June 2007; (2) refusal to appear for a drug

test on August 1, 2007; (3) refusal to appear for a rescheduled drug test on August

7, 2007; and (4) failure to report to his probation officer, as instructed, on August

20, 2007.

        According to a supplemental petition, Parker did not report to his probation

officer, as required, between August 2007 and August 10, 2008, when Parker was

arrested on drug charges. Parker’s failure to report and his drug arrest were the

bases for two additional violations of his supervised release conditions.

        The supplemental petition also alleged that Parker was arrested on August

10, 2008 while being served with the district court’s warrant for the first four



                                           2
violations of supervised release. Deputies in Escambia County, Florida conducted

surveillance on a house where Parker was believed to be and followed Parker in his

car when he drove away from the house. As the officers followed, they saw Parker

throwing “what appeared to be powder cocaine out of the window,” and the bags

hit the officers’ vehicle. After Parker was pulled over and arrested, officers found

“several empty bags similar to the bags Parker threw from the vehicle,” as well as

cocaine residue and three Xanax pills. Officers also recovered the bags Parker

threw from the vehicle, which contained traces of cocaine. Parker later admitted

throwing the cocaine bags out the window.

      Parker pled nolo contendre in Florida state court to possession of cocaine,

possession of a controlled substance without a prescription and destroying

evidence. Parker was sentenced to three six-month concurrent sentences. The

government filed a copy of the state court judgment prior to the revocation hearing.

      The probation officer prepared a “dispositional report,” which is not part of

the record on appeal. However, the parties do not dispute that the dispositional

report provided that: (1) Parker faced a statutory maximum sentence of five years’

imprisonment; (2) Parker’s state court drug convictions were classified as Grade B

violations under U.S.S.G. § 7B1.1(a)(2); (3) Parker’s other violations were

classified as Grade C violations under U.S.S.G. § 7B1.1(a)(3); and (4) under



                                          3
U.S.S.G. § 7B1.4(a), the advisory guidelines range was 8 to 14 months’

imprisonment. Parker did not object to the dispositional report.

          At the revocation hearing, Parker did not contest the allegations in the

petition for revocation or supplemental petition for revocation, and the parties

agreed that the probation officer’s guidelines calculations were accurate. Parker

sought a sentence within the advisory guidelines range. The government expressed

doubt about whether a sentence within the guidelines range would be appropriate

given that Parker failed to report for over a year and appeared to have been dealing

drugs when he was arrested in August 2008.

          The district court imposed a 30-month sentence with no supervised release.

The district court stated that it had considered the parties’ arguments, the

information in the dispositional report, the advisory guidelines range and the 18

U.S.C. § 3553(a) factors. The district court specifically cited Parker’s absconding

while on supervised release and agreed with the government that Parker was

dealing drugs at the time of his August 2008 arrest. The district court stated that

the state charge of simple possession was not “representative of the actual facts and

circumstances of [Parker’s] arrest.” Parker objected to the district court’s finding

that he was dealing drugs at the time of his arrest. In response, the district court

stated:



                                              4
       Well, I would be offended enough simply by the fact that he
       absconded, and not just took off but has to wait to get arrested again
       for drugs. No matter how you might describe that, finding him
       running down the highway, throwing out individual packets of
       cocaine seems to me to be somewhat indicative of his conduct. And,
       of course, he was absconding at the time . . . .

Parker filed this appeal.

                                      II. DISCUSSION

       Parker argues that his 30-month sentence is procedurally unreasonable

because the district court relied upon a finding that he was dealing drugs at the

time of his August 2008 arrest, which was not supported by sufficient evidence.

       “Under 18 U.S.C. § 3583(e), a district court may, upon finding by a

preponderance of the evidence that a defendant has violated a condition of

supervised release, revoke the term of supervised release and impose a term of

imprisonment after considering certain factors set forth in 18 U.S.C. § 3553(a).”

United States v. Sweeting, 437 F.3d 1105, 1107 (11th Cir. 2006).1 When a

defendant objects to a fact finding used to determine his sentence, the government

bears the burden to establish the disputed fact by a preponderance of the evidence.

       1
        The relevant § 3553(a) factors that the court must consider are: (1) the nature and
circumstances of the offense and the history and characteristics of the defendant; (2) the need to
afford adequate deterrence; (3) the need to protect the public; (4) the need to provide the
defendant with educational or vocational training or medical care; (5) the Sentencing Guidelines
range and pertinent policy statements of the Sentencing Commission; (6) the need to avoid
unwanted sentencing disparities; and (7) the need to provide restitution to victims. See 18 U.S.C.
§ 3583(e)(cross referencing 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D), (a)(4)-(7)).


                                                5
See United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005) (addressing

drug quantity finding used to calculate advisory guidelines range). “The

preponderance of evidence is a relaxed evidentiary standard, however, it does not

grant the court a license to sentence a defendant in the absence of sufficient

evidence when that defendant has properly objected to a factual conclusion.” Id.2

       Parker has not shown that the district court committed clear error in its fact

finding. The nature and circumstances of Parker’s August 2008 arrest were proper

factors for the district court to consider in sentencing Parker. See 18 U.S.C.

§ 3553(a)(1). Parker did not dispute any of the facts surrounding his August 2008

arrest contained in the probation officer’s dispositional report. Parker fled from

police, threw small plastic bags containing cocaine residue out of his car window

as he fled and had both three Xanax pills and additional plastic bags with cocaine

residue in his car when he finally was apprehended. Parker argues that these facts

support a finding that he possessed cocaine for his personal use. But, that is not

the only way to interpret that evidence. The district court’s finding that Parker was


       2
         We review a sentence imposed upon revocation of supervised release for
reasonableness. Sweeting, 437 F.3d at 1106-07. Our reasonableness review applies an abuse of
discretion standard. Gall v. United States, 552 U.S. 38, ___, 128 S. Ct. 586, 591 (2007). We
review for clear error a district court’s fact findings at sentencing. United States v. Crawford,
407 F.3d 1174, 1177 (11th Cir. 2005). “We cannot find clear error unless we are left with a
definite and firm conviction that a mistake has been committed.” Id. (quotation marks omitted).
“Where two permissible views of the evidence exist, the factfinder’s choice between them
cannot be clearly erroneous.” United States v. Holloway, 74 F.3d 249, 252 (11th Cir. 1996)
(quotation marks omitted).

                                                6
dealing drugs is also a plausible inference and conclusion that can be drawn from

the undisputed evidence. This is especially so because Parker had not just one or

two bags with cocaine residue, but several bags he threw out and several bags in

the car, along with three Xanax pills.

       Accordingly, we cannot say the district court clearly erred or that the district

court’s 30-month sentence is procedurally unreasonable.3

       AFFIRMED.




       3
        Parker does not argue that his 30-month sentence is substantively unreasonable.
However, he does argue that the district court’s allegedly erroneous fact finding was the “driving
force” behind the district court’s decision to exceed the advisory guidelines range. We disagree.
Parker’s 2008 drug arrest was only one of six violations offered as grounds for the revocation.
Furthermore, the district court explicitly stated it had considered all the § 3553(a) factors and
emphasized Parker’s refusal to report to his probation officer for over a year in imposing the 30-
month sentence.

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