UNPUBLISHED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Affirmed in part, vacated in part and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.
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. We affirmed
on appeal. 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 by more than one year’s imprisonment and
therefore they did not qualify as felonies under 18 U.S.C.
§ 922(g) or “felony drug offenses” under 21 U.S.C. § 841. The
2
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 the revised statutory mandatory
minimums and maximums. Based on a total offense level of 30 and
a criminal history 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. As relevant to this
appeal, he argued that a variance was warranted because the
police officers allegedly engaged in impermissible sentence
manipulation. In making this claim, Fair asserted that the
police set up two additional drug transactions with him (with
increasing drug amounts) instead of arresting him after the
first transaction. Had he been arrested after the first
3
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 and sentenced him at the low end of the
Guidelines range to 135 months’ imprisonment followed by a
consecutive mandatory minimum 5-year sentence on Count 9. The
court, however, reaffirmed Fair’s original sentence, including
the terms of supervised release “in all [other] respects.”
We review Fair’s sentence for reasonableness “under a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41, 51 (2007). This review entails
appellate consideration of both the procedural and substantive
reasonableness of the sentence. Id. at 51. In determining
procedural reasonableness, we consider whether 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. United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). 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
2010) (“[W]e may and do treat on 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 decision to correct 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
5
basis. He now asserts 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 departure with respect to a
defendant’s sentencing.”). 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
6
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 judgment. The error was plain and it
affected Fair’s substantial rights. See United States v.
Maxwell, 285 F.3d 336, 342 (4th Cir. 2002) (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
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 argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED IN PART;
VACATED IN PART
AND REMANDED
8