UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4259
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TERRANCE LEROY FISHER,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 03-10819)
Submitted: September 23, 2005 Decided: March 3, 2006
Before WIDENER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Remanded by unpublished per curiam opinion.
Geoffrey W. Hosford, HOSFORD & HOSFORD, P.L.L.C., Wilmington, North
Carolina, for Appellant. Frank D. Whitney, United States Attorney,
Anne M. Hayes, Christine Witcover Dean, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Terrance Leroy Fisher was convicted, by a jury, of five
counts of distribution of cocaine base, in violation of 18 U.S.C.
§ 841(a) (2000). We affirmed his conviction and sentence. See
United States v. Fisher, No. 03-4259 (4th Cir. Mar. 1, 2004)
(unpublished).
Fisher filed a petition for writ of certiorari in the
Supreme Court of the United States. His petition was granted, and
this court’s judgment was vacated, in light of the decision in
United States v. Booker, 125 S. Ct. 738 (2005). Fisher’s case has
been remanded to this court for further proceedings. Id.
Fisher’s sentence was imposed prior to the decision in
Booker and its predecessor, Blakely v. Washington, 542 U.S. 296
(2004), and he did not raise objections to his sentence based on
the mandatory nature of the Sentencing Guidelines or the district
court’s application of sentencing enhancements based on facts not
admitted by Fisher or found by the jury beyond a reasonable doubt.
Therefore, we review his sentence for plain error. See United
States v. Hughes, 401 F.3d 540, 546-60 (4th Cir. 2005). Fisher’s
indictment stated an unspecified amount of crack cocaine. Without
any enhancement, Fisher started at a base offense level of twelve,
which corresponds to the lowest amount of cocaine base listed in
the guidelines. See USSG § 2D1.1(c). The district court enhanced
Fisher’s sentence based solely on the statement of one informant,
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resulting in a base offense level of thirty-four, for an offense
that involved 220.7 grams of cocaine base. This enhancement was
neither found by the jury nor admitted by the defendant,1 and it
resulted in a guideline range of 188 to 235 months’ imprisonment.
The district court imposed a term of imprisonment of 235 months for
counts three through seven, to be served concurrent to one another.
If not for the amount of crack cocaine, a fact found by the
district court (and disputed by Fisher at sentencing), his offense
level would be set at a level of twelve, resulting in a guidelines
range of fifteen to twenty-one months on each count. USSG Ch. 5,
Pt. A (Sentencing Table). Fisher’s 235-month sentence on each
count thus meets the standard for plain error that must be
recognized under the reasoning set forth in Hughes.2
1
The district court also adopted the criminal history
calculation prepared by the probation officer, which listed four
points for criminal convictions, to which it added two points
pursuant to USSG § 4A1.1(e), based on the instant offense being
committed less than two years following Fisher’s release from the
North Carolina Department of Correction, for a total of six
criminal history points and an attendant criminal history category
of III. We find that this addition to Fisher’s criminal history
calculation is not error under this court’s reasoning in United
States v. Thompson, 421 F.3d 278, 282, 283-86 (4th Cir. 2005),
petition for cert. filed, ___ U.S.L.W. ___ (U.S. Oct. 25, 2005)
(No. 05-7266)(finding that facts “of” prior conviction, including
those “normally found in conclusive judicial records”, as compared
to facts “about” prior conviction, properly may be determined by
the court by preponderance of the evidence).
2
Just as we noted in Hughes, 401 F.3d at 545 n.4, “w[e] of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Fisher’s sentencing.
See generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating that an error is “plain” if “the law at the time of trial
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Thus, we remand this case for resentencing. Upon
resentencing, the district court will calculate a sentencing range
in accordance with the guidelines, although that range will be
advisory rather than mandatory. See Booker, 125 S. Ct. at 767
(noting that the sentencing court must still “consult [the]
Guidelines and take them into account when sentencing”). We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
REMANDED
was settled and clearly contrary to the law at the time of
appeal”).
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