UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4116
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
VERN ODELL CRAWFORD, a/k/a Odell V. Crawford, a/k/a O’Dell
Crawford,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson,
District Judge. (5:07-cr-00058-sgw-1)
Argued: October 29, 2010 Decided: January 10, 2011
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed in part and vacated in part by unpublished opinion.
Judge Shedd wrote the opinion, in which Judge Motz and Judge
Gregory joined.
ARGUED: Seth Allen Neyhart, Chapel Hill, North Carolina, for
Appellant. Jean Barrett Hudson, OFFICE OF THE UNITED STATES
ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF:
Timothy J. Heaphy, United States Attorney, Roanoke, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
SHEDD, Circuit Judge:
Vern Odell Crawford appeals from his criminal conviction
and sentence. For the reasons below, we affirm in part and
vacate in part.
I.
A jury convicted Crawford on twelve counts of
methamphetamine distribution, two counts of cocaine
hydrochloride distribution, and one count of amphetamine
distribution. However, the jury acquitted Crawford on charges
that he had been involved in a conspiracy to distribute drugs.
The district court imposed a $1,000,000.00 fine as part of his
sentence but did not make any specific findings regarding
Crawford’s ability to pay the fine. Crawford raises seven
issues on appeal. After a thorough review of all seven issues,
we address only two, and we find only one to have merit.
Crawford did not raise either of these two issues below.
Therefore, our review is for plain error. See Fed. R. Crim. P.
52(b). Four conditions must be met before we will recognize
plain error: (1) there is error; (2) the error is plain under
current law; (3) the error affects the defendant’s substantial
rights; and (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings. United
States v. Olano, 507 U.S. 725, 733-737 (1993).
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II.
Crawford argues that the court improperly calculated his
sentence in violation of his Fifth and Sixth Amendment rights.
The jury convicted Crawford on 15 various drug distribution
charges, supported by witness testimony as to 94.22 grams of
methamphetamines but acquitted Crawford on the conspiracy
charges. However, at sentencing, the court adopted a drug
weight of 5-15 kilograms of methamphetamines, as calculated in
the Pre-Sentence Report (“PSR”), based upon judicial findings of
relevant conduct, including the alleged conspiracy. Crawford
challenges the court’s consideration of this drug weight at
sentencing as unreasonable and a violation of his constitutional
rights because the jury did not convict him of the conduct
related to this additional drug weight.
“It has long been established that sentencing courts may
consider acquitted conduct in establishing drug amounts for the
purpose of sentencing, so long as the amounts are established by
a preponderance of the evidence.” United States v. Perry, 560
F.3d 246, 258 (4th Cir. 2009). Because the court found by a
preponderance of the evidence that the 5-15 kilogram drug weight
was attributable to Crawford, the court did not commit error by
considering it as relevant conduct for the purpose of
establishing Crawford’s sentence, despite the fact that the drug
weight stemmed from acquitted conduct.
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III.
Crawford also argues that the issue of his fine should be
remanded for the purpose of making appropriate findings as to
his ability to pay such a fine. Before a district court can
impose a fine, it must consider the impact of the fine on a
defendant, including a defendant’s income, earning capacity, and
financial resources. See 18 U.S.C. § 3572. As we have
explained, “the district court must make factual findings with
respect to applicable section 3572 factors, so that there can be
a basis from which to review whether the district court abused
its discretion in assessing a fine.” United States v. Walker,
39 F.3d 489, 492 (4th Cir. 1994).
The PSR states that Crawford does not have the ability to
pay a fine because “[a]ll known assets have been attached by the
government for forfeiture.” J.A. 147. However, without making
the specific findings required by § 3572, the court concluded
that Crawford should pay a $1,000,000.00 fine. Without the
specific factual findings required by § 3572, there is no basis
for effective appellate review of the fine imposed. See United
States v. Chorman, 910 F.2d 102 (4th Cir. 1990).
IV.
Based on the foregoing, we affirm Crawford’s conviction.
We also affirm his sentence, except for the imposition of the
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fine. Accordingly, we vacate the district court’s imposition of
a fine and remand that portion of the case to the district court
with instructions to make the findings required by 18 U.S.C.
§ 3572.
AFFIRMED IN PART
AND VACATED IN PART
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