United States v. Fair

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-4310

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

FREDERICK O’NEAL FAIR,

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:05-cr-00316-WLO)

Submitted: December 14, 2006 Decided: December 19, 2006

Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen III, Federal Public Defender, John A. Dusenbury,
Jr., Greensboro, North Carolina, for Appellant. Kearns Davis,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Frederick O’Neal Fair appeals from his conviction and

228-month sentence imposed pursuant to his guilty plea to

possession with intent to distribute four grams of crack cocaine

and possession of a firearm during a drug trafficking crime. On

appeal, his attorney has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), finding no meritorious issues for

appeal but questioning whether the standard of proof utilized at

sentencing violated Fair’s right to due process. Fair was informed

of his right to file a pro se supplemental brief, but he has not

done so.* After full consideration of the record, we affirm.

At sentencing, the drug quantity attributed to Fair was

calculated on the amount to which he pled guilty, plus the amount

to which he admitted in a signed statement to the police. His

written statement resulted in a ten-level increase to his offense

level. While due process is generally satisfied by using a

preponderance of the evidence standard to prove sentencing factors,

see McMillan v. Pennsylvania, 477 U.S. 79, 91-92 (1986), Fair

*
However, in Fair’s pro se notice of appeal, he raised the
following claims: (1) he was improperly charged with crack cocaine
when he was only in possession of cocaine base; (2) he did not
intend to distribute the cocaine he was charged with possessing;
and (3) he should have been sentenced for only the drugs that were
found in his possession. The first two claims are foreclosed by
Fair’s guilty plea, and the third claim ignores the Sentencing
Guidelines, which provide for sentencing based, not only on the
charged crimes, but also relevant conduct. U.S. Sentencing
Guidelines Manual § 1B1.3 (2005).

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contends that a heightened standard of proof is required when facts

have a significant or unfair impact on the sentence. See United

States v. Jordan, 256 F.3d 922, 927-29 (9th Cir. 2001) (requiring

clear and convincing evidence to prove disputed sentence

enhancements that resulted in nine-level increase in offense

level).

Since it is raised for the first time on appeal, we

review Fair’s claim for plain error. See United States v. Olano,

507 U.S. 725, 732 (1993). Assuming Fair’s claim was not waived by

his failure to object to the presentence report (“PSR”), see United

States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990) (noting that, in

the absence of any objection, the court is free to adopt the PSR’s

findings without more specific inquiry or explanation), and

recognizing that we have not adopted the holding in Jordan, Fair’s

sworn testimony at his plea hearing and the factual basis adopted

therein sufficiently corroborate his out-of-court admission. See

Wong Sun v. United States, 371 U.S. 471, 489 (1963) (holding that,

where extrinsic evidence corroborates trustworthiness of a

confession, the confession is sufficient to establish the elements

of the crime). Thus, the court did not commit plain error in

relying on the admission.

Pursuant to Anders, we have reviewed the record in this

case and found no reversible error. Accordingly, we affirm Fair’s

convictions and sentence. This court requires that counsel inform

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his client, in writing of his right to petition the Supreme Court

of the United States for further review. If the client requests

that a petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this court for leave

to withdraw from representation. Counsel’s motion must state that

a copy thereof was served on the client. 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.

AFFIRMED

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