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    United States v. Alvin Fair, 4th Cir. (2015)

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    This document summarizes a United States Court of Appeals case. It discusses that the defendant was convicted of several drug and firearm offenses. He later had one conviction vacated based on a Supreme Court case. At resentencing, the court imposed the same terms of supervised release that exceeded new statutory maximums. The appellate court found this was plain error affecting the defendant's substantial rights. It affirmed most of the resentencing but vacated and remanded the improper supervised release terms.

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    United States v. Alvin Fair, 4th Cir. (2015)

    Uploaded by

    Scribd Government Docs
    47 views8 pages
    This document summarizes a United States Court of Appeals case. It discusses that the defendant was convicted of several drug and firearm offenses. He later had one conviction vacated based on a Supreme Court case. At resentencing, the court imposed the same terms of supervised release that exceeded new statutory maximums. The appellate court found this was plain error affecting the defendant's substantial rights. It affirmed most of the resentencing but vacated and remanded the improper supervised release terms.

    Original Description:

    Filed: 2015-05-11 Precedential Status: Non-Precedential Docket: 14-4714

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    This document summarizes a United States Court of Appeals case. It discusses that the defendant was convicted of several drug and firearm offenses. He later had one conviction vacated based on a Supreme Court case. At resentencing, the court imposed the same terms of supervised release that exceeded new statutory maximums. The appellate court found this was plain error affecting the defendant's substantial rights. It affirmed most of the resentencing but vacated and remanded the improper supervised release terms.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    47 views8 pages

    United States v. Alvin Fair, 4th Cir. (2015)

    Uploaded by

    Scribd Government Docs
    This document summarizes a United States Court of Appeals case. It discusses that the defendant was convicted of several drug and firearm offenses. He later had one conviction vacated based on a Supreme Court case. At resentencing, the court imposed the same terms of supervised release that exceeded new statutory maximums. The appellate court found this was plain error affecting the defendant's substantial rights. It affirmed most of the resentencing but vacated and remanded the improper supervised release terms.

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    of 8

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 14-4714

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    ALVIN DWIGHT FAIR,
    Defendant - Appellant.

    Appeal from the United States District Court for the Western
    District of North Carolina, at Statesville.
    Richard L.
    Voorhees, District Judge. (5:03-cr-00051-RLV-DCK-1)

    Submitted:

    April 28, 2015

    Decided:

    May 11, 2015

    Before WILKINSON, KING, and DUNCAN, Circuit Judges.

    Affirmed in part, vacated in part and remanded by unpublished


    per curiam opinion.

    Ross Richardson, Executive Director, Ann L. Hester, FEDERAL


    DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
    Carolina, for Appellant.
    Anne M. Tompkins, United States
    Attorney, Anthony J. Enright, Assistant United States Attorney,
    Charlotte, North Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    A jury convicted Alvin Dwight Fair of conspiracy to possess
    with intent to distribute 50 grams or more of cocaine base, 21
    U.S.C.

    846

    (2012)

    (Count

    1);

    possession

    with

    intent

    to

    distribute cocaine base, 21 U.S.C. 841 (2012) (Counts 7, 8,


    and 11); use and carry of a firearm during and in relation to a
    drug trafficking crime, 18 U.S.C. 924(c)(1) (2012) (Count 9);
    and possession of a firearm by a convicted felon, 18 U.S.C.
    922(g)(1)

    (2012)

    (Count

    10).

    The

    Government

    filed

    21

    U.S.C. 851 (2012) notice seeking enhanced penalties and, in


    2006, the district court sentenced Fair to a total of 300 months
    of imprisonment.

    As to the terms of supervised release, the

    district court sentenced Fair to a 10-year term on Count 1; an


    8-year term on each of Counts 7, 8, and 11; a 3-year term on
    Count 10, and a consecutive 5-year term on Count 9.
    on appeal.

    We affirmed

    United States v. Fair, 246 F. Appx 238 (4th Cir.

    2007) (No. 06-5043).


    In November 2012, Fair filed a 28 U.S.C. 2255 (2012)
    motion to vacate his 922(g) conviction and sentence in light
    of United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en
    banc), arguing that his prior North Carolina convictions were
    not

    punishable

    therefore

    they

    by
    did

    more
    not

    than

    one

    years

    qualify

    as

    felonies

    imprisonment
    under

    18

    U.S.C.

    922(g) or felony drug offenses under 21 U.S.C. 841.


    2

    and

    The

    district court granted relief, vacated the 922(g) conviction,


    and ordered that Fair be resentenced.
    The probation officer filed a supplement to the presentence
    report

    (PSR)

    outlining

    minimums and maximums.


    a

    criminal

    history

    the

    revised

    statutory

    mandatory

    Based on a total offense level of 30 and


    category

    of

    IV,

    the

    probation

    officer

    calculated an advisory Guidelines range of 135 to 168 months


    imprisonment and a mandatory consecutive sentence of not less
    than 5 years on Count 9.

    In pertinent part, the supplement also

    called for mandatory minimum supervised release terms that were


    lower

    than

    what

    Fair

    had

    faced

    at

    his

    original

    sentencing.

    Specifically, on Counts 1, 8, and 11, the district court was


    required to impose a mandatory minimum term of 4 years on each
    count, 21 U.S.C. 841(b)(1)(B); a mandatory minimum of 3 years
    on Count 7, 21 U.S.C. 841(B)(1)(C); and a maximum a term of
    five years on Count 9, 18 U.S.C. 3583(b)(1) (2012).
    At resentencing, Fair moved for a downward variance based
    on the 18 U.S.C. 3353(a) (2012) factors.
    appeal, he
    police

    argued

    officers

    manipulation.

    variance

    allegedly

    engaged

    In

    that

    making

    this

    was
    in

    claim,

    As relevant to this

    warranted

    because

    impermissible
    Fair

    asserted

    the

    sentence
    that

    the

    police set up two additional drug transactions with him (with


    increasing
    first

    drug

    amounts)

    transaction.

    Had

    instead
    he

    been
    3

    of

    arresting

    arrested

    him

    after

    after
    the

    the

    first

    transaction, Fair argued, his Guidelines range would have been


    63 to 78 months instead of the 135 to 168 months he faced.
    The district court ultimately rejected Fairs motion for a
    downward

    variance

    Guidelines

    range

    and
    to

    sentenced
    135

    him

    months

    at

    the

    low

    imprisonment

    end

    of

    followed

    the

    by

    consecutive mandatory minimum 5-year sentence on Count 9.

    The

    court, however, reaffirmed Fairs original sentence, including


    the terms of supervised release in all [other] respects.
    We

    review

    deferential
    States,

    552

    Fairs

    sentence

    for

    abuse-of-discretion
    U.S.

    38,

    41,

    reasonableness

    standard.

    51

    (2007).

    Gall

    This

    under
    v.

    review

    United
    entails

    appellate consideration of both the procedural and substantive


    reasonableness of the sentence.
    procedural

    reasonableness,

    we

    Id. at 51.
    consider

    whether

    In determining
    the

    district

    court properly calculated Fairs advisory Guidelines range, gave


    the parties an opportunity to argue for an appropriate sentence,
    considered the 18 U.S.C. 3553(a) (2012) factors, selected a
    sentence not based on clearly erroneous facts, and sufficiently
    explained the selected sentence.

    Id. at 49-51.

    If, and only

    if, we find the sentence procedurally reasonable can we consider


    the substantive reasonableness of the sentence imposed.
    States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009).

    United

    We presume

    that a sentence within the Guidelines range is reasonable.

    See

    United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir.


    4

    2010)

    ([W]e

    may

    and

    do

    treat

    on

    appeal

    district

    courts

    decision to impose a sentence within the Guidelines range as


    presumptively reasonable.).
    On appeal, Fair raises two claims regarding his sentence.
    First, he argues that the district court erred when it refused
    to

    consider

    his

    sentencing

    manipulation

    argument

    based

    on

    mistaken view that such argument was unavailable in the Fourth


    Circuit.

    Second, he asserts that the district court erred in

    reimposing the original terms of supervised release.

    Because

    Fair did not object to any aspect of the sentencing calculus,


    our review is limited to plain error.

    See United States v.

    Hamilton, 701 F.3d 404, 410 (4th Cir. 2012).

    To establish

    plain error, the appealing party must show that an error (1) was
    made, (2) is plain (i.e., clear or obvious), and (3) affects
    substantial rights.

    United States v. Lynn, 592 F.3d 572, 577

    (4th Cir. 2010).

    Even if Fair establishes these three elements,

    the

    correct

    decision

    to

    the

    error

    lies

    within

    this

    courts

    remedial discretion, and this court exercises that discretion


    only if the error seriously affects the fairness, integrity or
    public reputation of judicial proceedings.

    Henderson v. United

    States, 133 S. Ct. 1121, 1126-27 (2013).


    At resentencing, Fairs counsel conceded that a sentencing
    manipulation

    argument

    has

    not

    been

    fully

    recognized

    by

    this

    court but nonetheless argued for a downward variance on this


    5

    basis.

    He

    now

    asserts

    that

    the

    district

    court

    erred

    in

    concluding it did not have the authority to consider it on the


    merits.

    While

    district

    courts

    failure

    to

    recognize

    its

    discretion to vary downward may constitute procedural error, see


    e.g., United States v. Herder, 594 F.3d 352, 362-63 (4th Cir.
    2010), we have reviewed the transcript and conclude that the
    district court did not fail to recognize its discretion to vary,
    but that it rejected on the merits Fairs argument that he was
    entitled to a variant sentence on this ground.

    In any event, as

    Fair concedes, although we have not decided whether the theory


    of sentencing manipulation has any basis in law, we have looked
    with skepticism on claims of sentence manipulation.

    See United

    States v. Jones, 18 F.3d 1145, 1154 (4th Cir. 1994) (We . . .


    note

    our

    skepticism

    as

    to

    whether

    the

    government

    could

    ever

    engage in conduct not outrageous enough so as to violate due


    process to an extent warranting dismissal of the governments
    prosecution, yet outrageous enough to offend due process to an
    extent

    warranting

    downward

    defendants sentencing.).

    departure

    with

    respect

    to

    As in Jones, the facts of this case

    do not disclose outrageous conduct and therefore the argument


    was inapplicable.

    Id. at 1154-55.

    Next, Fair argues that the district court erred in imposing


    the same supervised release terms as imposed in the original
    judgment.

    At resentencing, Counts 1, 8, and 11 exposed Fair to


    6

    a mandatory minimum of 4 years and a maximum of term of 5 years,


    see United States v. Good, 25 F.3d 218 (4th Cir. 1994) (holding
    that a violation 841(b)(l)(B), which requires a supervised
    release term of at least 4 years, carries a maximum term of 5
    years

    under

    3583(b)(l)),

    and

    Count

    exposed

    Fair

    to

    mandatory minimum supervised release term of 3 years, with no


    maximum term.

    The Government concedes that the district court

    erred by reimposing supervised release terms that exceeded the


    statutory maximum terms for Counts 1, 8, and 11.

    Although the

    term imposed on Count 7 did not exceed any statutory maximum,


    the Government also concedes that the district court erred in
    this regard based on a mistaken understanding that Count 7 was
    subject

    to

    an

    8-year

    mandatory

    minimum

    term

    of

    supervised

    release. *
    We agree that the court erred at resentencing in reimposing
    the same terms of supervised release for Counts 1, 7, 8, and 11
    as

    in

    the

    original

    affected

    Fairs

    Maxwell,

    285

    judgment.

    substantial

    F.3d

    336,

    342

    The

    error

    rights.

    See

    (4th

    Cir.

    was

    plain

    United

    2002)

    and

    it

    States

    v.

    (holding

    that

    sentencing defendant to term of supervised release that exceeded


    the

    statutory

    maximum

    by

    11

    months,

    did,

    in

    fact,

    seriously

    The minimum and maximum supervised release terms for Count


    9 were unaffected by the Simmons error. 18 U.S.C. 3583(b)(1).

    affect the fairness, integrity or public reputation of judicial


    proceedings.)
    Accordingly,

    we

    vacate

    the

    amended

    judgment

    imposing

    supervised release on Counts 1, 7, 8, and 11, and remand to the


    district court for proceedings consistent with this opinion.

    We

    affirm Fairs sentence in all other respects.

    We dispense with

    oral

    contentions

    argument

    adequately

    because

    presented

    in

    the
    the

    facts

    and

    materials

    legal
    before

    this

    court

    are
    and

    argument would not aid the decisional process.

    AFFIRMED IN PART;
    VACATED IN PART
    AND REMANDED

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