United States v. Fair , 205 F. App'x 186 ( 2006 )


Menu:
  •                             UNPUBLISHED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    Affirmed by unpublished per curiam opinion.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    Unpublished opinions are not binding precedent in this circuit.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).
    - 2 -
    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
    - 3 -
    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
    - 4 -
    

Document Info

Docket Number: 06-4310

Citation Numbers: 205 F. App'x 186

Judges: Michael, Gregory, Shedd

Filed Date: 12/19/2006

Precedential Status: Non-Precedential

Modified Date: 11/5/2024