US v. Alvin Fair

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:03-cr-00051-RLV-DCK-1. Copies to all parties and the district court. [999580718]. [14-4714]

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UNPUBLISHED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Affirmed in part, vacated in part and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.

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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

a

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. App’x 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

year’s

qualify

as

felonies

imprisonment
under

18

U.S.C.

§ 922(g) or “felony drug offenses” under 21 U.S.C. § 841.
2

and

The

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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.

a

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

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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 Fair’s 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.

a

The

court, however, reaffirmed Fair’s original sentence, including
the terms of supervised release “in all [other] respects.”
We

review

deferential
States,

552

Fair’s

sentence

for

abuse-of-discretion
U.S.

38,

41,

reasonableness

standard.”

51

(2007).

Gall

This

“under
v.

review

a

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 Fair’s 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

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2010)

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(“[W]e

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may

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and

on

do

treat

appeal

a

district

court’s

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

a

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

court’s

“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, Fair’s counsel conceded that a sentencing
manipulation

argument

has

not

been

fully

recognized

by

this

court but nonetheless argued for a downward variance on this
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basis.

He

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now

asserts

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that

the

district

court

erred

in

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

While

a

district

court’s

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 Fair’s 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 government’s
prosecution, yet outrageous enough to offend due process to an
extent

warranting

a

downward

defendant’s sentencing.”).

departure

with

respect

to

a

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
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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

7

exposed

Fair

to

a

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

Fair’s

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).

7

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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 Fair’s 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

8