US v. Russell Freshour

Filing 920091015

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4681

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RUSSELL FLOYD FRESHOUR, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (1:05-cr-00235-LHT-DLH-1)

Submitted:

September 29, 2009

Decided:

October 15, 2009

Before NIEMEYER, MICHAEL, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

David G. Belser, BELSER & PARKE, Asheville, North Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Russell manufacturing and Floyd Freshour with was intent found to guilty of fifty

possessing

distribute

grams or more of methamphetamine and was sentenced to 210 months of imprisonment in 2006. This court affirmed Freshour's See United 2007). On

conviction on appeal but remanded for resentencing. States v. Freshour, 235 F. App'x 193 (4th Cir.

remand, the court found Freshour responsible for forty grams of actual methamphetamine, recalculated his Sentencing Guidelines range as 168-210 months of imprisonment, and imposed a withinGuidelines range sentence of 180 months. Freshour again appeals, raising the following issues: (1) whether evidence was sufficient to establish by a

preponderance of the evidence that he manufactured or possessed with intent to distribute at least forty grams of actual

methamphetamine for purposes of sentencing, and (2) whether the district court violated his Sixth Amendment rights by increasing his sentence by facts and an enhancement found only by the

judge, which were not pled in the indictment or found by the jury beyond a reasonable doubt. affirm. First, we find no clear error in the district court's conclusion that Freshour was responsible for forty grams of For the reasons that follow, we

actual methamphetamine.

See United States v. McDonald, 61 F.3d 2

248, 255 (4th Cir. 1995) (providing review standard for quantity of drugs attributable reveals to a defendant for sentencing). manufacturing The and

record

Freshour's

extensive

distributing of the drug over an extended period of time, which supports the court's factual findings on the matter. Second, the district court's calculation of Freshour's advisory sentencing range and imposition of a sentence within the statutory maximum does not offend the Sixth Amendment, as he was sentenced below the statutory maximum for the offense with no drug weight. See 21 U.S.C.A. § 841(b)(1)(C) (West Supp.

2009) (twenty-year maximum punishment for an unspecified amount of methamphetamine); Rita v. United States, 551 U.S. 338, 347 (2007) (holding that "a court of appeals may apply a presumption of reasonableness to a district court sentence that reflects a proper application of the Sentencing Guidelines"); United States v. Booker, 543 error U.S. 220, 244-45 the (2005) (noting court that Sixth a

Amendment

occurs

where

district

imposes

sentence greater than the maximum permitted based on facts found by a jury or admitted by the defendant). Accordingly, both of Freshour's claims fail on appeal and we affirm his sentence. We dispense with oral argument as

the facts and legal contentions are adequately presented in the

3

materials

before

the

court

and

argument

would

not

aid

the

decisional process. AFFIRMED

4