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No. 06-4405
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (1:05-cr-00485-LMB)
Submitted:
Decided:
PER CURIAM:
A grand jury indicted Robert Thompson for possession with
intent to distribute five grams of cocaine base, in violation of 21
U.S.C. 841(a)(1) (2000).
imprisonment.
On appeal, Thompson raises the following issues:
(1)
187, 193 (4th Cir.), cert. denied, 126 S. Ct. 134 (2005).
The
The
evidence
is
that
trio
of
law
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However,
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We find
Thompson
next
argues
the
quantity
of
cocaine
base
Under U.S.
Moreover, this
Court has held that under the plain text of the guidelines,
district courts must apply the gross weight theory, which is
calculated by combining the gross weight of the narcotic plus any
carrier mediums.
Cir. 1990).
- 4 -
United States v.
Deisch, 20 F.3d 139, 144 (5th Cir. 1994); United States v. Sharp,
12 F.3d 605, 606 (6th Cir. 1993); United States v. Michael, 10 F.3d
838, 839 (D.C. Cir. 1993); United States v. Puryear, 940 F.2d 602,
603-04 (10th Cir. 1991).
opposite position.
(9th Cir. 1996); United States v. Smith, 34 F.3d 514, 519-20 (7th
Cir. 1994); United States v. Monk, 15 F.3d 25, 27 (2d Cir. 1994).*
Under Schmuck v. United States, 489 U.S. 705, 716 (1989),
the elements of the lesser offense are a subset of the elements of
the charged offense.
the same offense, except 844(a) does not have the intent to
distribute element.
are a subset of 841, we find the district court did not commit
plain error.
Thompson next argues that he did not receive adequate
notice of the charge of which he was convicted.
A defendant must
Cir. 2003).
Here, the grand jury indicted Thompson for possession
with intent to distribute five grams or more of a mixture and
substance containing . . . cocaine base.
set forth all the elements of 844(a), and therefore Thompson had
notice of the offense for which he was convicted.
The claim is
without merit.
Thompson
finally
argues
his
conviction
of
lesser
which
prohibits
multiple
punishment
for
the
same
Because Thompson was punished for only one offense, the Double
Jeopardy Clause is inapplicable, and the argument is without merit.
Accordingly, we affirm the district courts judgment. We
dispense with oral argument because the facts and legal contentions
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AFFIRMED
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