United States v. Fisher

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4596
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KINTE LADRELL FISHER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-03-5)
Argued: October 29, 2004 Decided: January 4, 2005
Before NIEMEYER and LUTTIG, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Geoffrey Wuensch Hosford, HOSFORD & HOSFORD, Wilmington,
North Carolina, for Appellant. Anne Margaret Hayes, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee. ON BRIEF: Frank D. Whitney,
United States Attorney, Christine Witcover Dean, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant Kinte Ladrell Fisher pled guilty to two counts of
possessing cocaine with intent to distribute and one count of
possessing cocaine base with intent to distribute. J.A. 9-10, 12-
32. At sentencing, the district court rejected Fisher’s claims
that the Presentence Investigation Report (“PSR”) had improperly
assigned criminal history points for his April 26, 2001 conviction
for resisting a public officer, J.A. 95-96, and that the PSR had
miscalculated the drug quantities that he was “accountable for.”
Id. at 108, 95-96. We affirm.
I.
On April 26, 2001, prior to the commission of the drug
offenses at issue in this appeal, Fisher was convicted in North
Carolina state court of resisting a public officer. J.A. 110.
Fisher appealed pursuant to North Carolina Statute section 15A-
1431(b), which entitled Fisher to a de novo jury trial in the
superior court. Fisher was awaiting his jury trial at the time he
was sentenced.
The PSR assigned Fisher three criminal history points based on
the sentence that the state court imposed for Fisher’s conviction
for resisting a public officer. J.A. 110. The three criminal
history points were allocated as follows: one point, pursuant to
USSG § 4A1.1(c), for the “prior sentence” attendant to Fisher’s
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conviction of resisting a public officer, and two points, pursuant
to section 4A1.1(d), for commission of the instant drug offenses
while Fisher was “under the 12 month probation term” that the state
district court imposed for his resisting a public official
conviction. J.A. 110. Fisher objected, claiming that since his
conviction was subject to a de novo jury trial in state superior
court and, according to Fisher, that his sentence was suspended
pending the outcome of that proceeding, his sentence could not be
counted as a “prior sentence” under section 4A1.1. J.A. 119. The
Probation Officer’s response, apparently adopted by the district
court, was that Fisher’s objection was foreclosed by
section 4A1.2(l), which provides that “[i]n the case of a prior
sentence, the execution of which has been stayed pending appeal,
§ 4A1.1(a), (b), (c), (d), and (f) shall apply as if the execution
of such sentence had not been stayed.” J.A. 119.
The probation officer’s interpretation of section 4A1.2(l) in
the context of an “appeal” from a North Carolina district court to
superior court, however, was foreclosed by recent circuit
precedent. In United States v. Martin, 378 F.3d 353 (4th Cir.
2004), we held that such “appeals” are not “appeals” within the
meaning of section 4A1.1(l) because “in ‘appealing’ from the North
Carolina district court to superior court, Martin did not seek (and
indeed could not seek) review of the district court proceeding or
disposition; rather she requested (and was only entitled to
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request), a trial de novo irrespective of the proceedings or
disposition in the inferior court.” Id. at 357-58.
Despite the PSR’s faulty analysis, the parties agreed at oral
argument that Martin dictated that Fisher was correctly assigned
one criminal history point pursuant to section 4A1.1(c). This
agreement was apparently based upon Martin’s determination that,
because the sentence imposed by the North Carolina district court
in that case had been “totally stayed” when Martin appealed to the
superior court, id. at 358, Martin’s sentence fell under
section 4A1.2(a)(3), which provides that “a conviction for which
the imposition or execution of sentence was totally suspended or
stayed shall be counted as a prior sentence under § 4A1.1(c).”
(emphasis added). Prior sentences considered under
section 4A1.1(c) receive a single criminal history point and,
indeed, the PSR appears to have relied upon that section for its
recommendation of a single criminal history point for Fisher’s
resisting a public official conviction. J.A. 110.
While we ultimately hold that Fisher was correctly assigned
one criminal history point pursuant to section 4A1.1(c), we cannot
do so based on the parties’ proposed reading of Martin. Simply
put, Fisher’s sentence was not totally stayed when he appealed to
the superior court, and thus section 4A1.2(a)(3) is inapplicable.
As we did in Martin, we consult North Carolina law to “determine[]
the effect of the state court’s sentence.” Martin, 378 F.3d at
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358. The relevant state statutory provision provides as follows:
Appeal pursuant to this section stays the execution of
portions of the judgment relating to fines and costs.
Appeal stays portions of the judgment relating to
confinement when the defendant has complied with
conditions of pretrial release . . . .
N.C. Gen. Stat. § 15A-1431(f) (emphasis added). Contrary to
appellant’s representation, and as the emphasized portions of the
statute make clear, an appeal from the district court to the
superior court only stays the “portions” of the sentence relating
to fines, costs, and confinement. Because Martin’s sentence had
only one element, namely “sixty days imprisonment,” Martin, 378
F.3d at 354, her sentence was totally stayed under the statute.
Here, however, Fisher’s sentence included -- in addition to costs
and confinement -- twelve months of probation, J.A. 110, which was
not stayed when he appealed. See State v. Smith, 598 S.E.2d 408,
411 (N.C. Ct. App. 2004) (“This statute [N.C. Gen. Stat. § 15A-
1431(f)] provides that the only portions of a district court
sentence stayed by an appeal are fines, costs, and terms of
imprisonment if the defendant has complied with pretrial conditions
of release. ‘If ordinary probation is involved, the defendant
begins serving the probation despite the appeal.’”) (quoting
Stevens H. Clarke, Law of Sentencing, Probation, and Parole in
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North Carolina, p. 124 (Institute of Gov’t 2ded. 1997)) (emphasis
added).1
Fisher’s sentence is therefore a “prior sentence” under
section 4A1.2(a)(1) because it is a “sentence previously imposed
upon adjudication of guilt” and was correctly assigned one criminal
history point under section 4A1.1(c) because it was not countable
under either section 4A1.1(a) or section 4A1.1(b). See USSG
§ 4A1.1(c) (“Add 1 point for each prior sentence not counted in (a)
or (b).”).
Appellant also contests the applicability of the criminal
history points he was assigned pursuant to section 4A1.1(d), which
provides for the addition of two criminal history points if “the
defendant committed the instant offense while under any criminal
justice sentence, including probation, parole, supervised release,
imprisonment, work release, or escape status” (emphasis added).
Appellant contends that section “4A1.1(d) does not apply because
Mr. Fisher had not committed any part of the instant offense while
under the criminal justice sentence [for his resisting a public
officer conviction]” because “the district court’s judgment ceased
to exist . . . when Kinte Fisher filed his notice of his intention
1
The North Carolina Supreme Court has granted the State’s
request for discretionary review of Smith, State v. Smith,
S.E.2d , No. 407PA04, 2004 WL 2471339 (N.C. Oct. 6, 2004), and
has temporarily stayed the Court of Appeal’s decision. State v.
Smith, 603 S.E.2d 128 (N.C. 2004). We are satisfied, however, that
the North Carolina Court of Appeals in Smith correctly interpreted
N.C. Gen. Stat. § 15A-1431(f).
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to exercise his right to trial by jury.” Appellant’s Br. at 12.
But as the foregoing analysis makes clear, Fisher was “serving” the
probation portion of his sentence despite his appeal, see Smith,
598 S.E.2d at 411, and thus the district court properly added two
criminal history points pursuant to section 4A1.1(d).
II.
At sentencing, Fisher also objected to the PSR’s determination
of the quantity of drugs relevant to his base offense level. This
determination was based upon statements that investigators obtained
from one of Fisher’s drug suppliers, John Bines, and two of
Fisher’s customers, Carl Bell and Oscar Brown. J.A. 50. The
district court heard live testimony from these three individuals,
and even though some of the testimony differed from the statements
obtained by investigators, the district court adopted the findings
of the PSR and sentenced Fisher accordingly. J.A. 95-96.2
“The Government bears the burden of proving by a preponderance
of the evidence the quantity of drugs for which a defendant should
be held accountable at sentencing.” United States v. Gilliam, 987
F.2d 1009, 1013 (4th Cir. 1993). When objecting to drug quantities
as set forth in the PSR, the defendant has an affirmative duty to
2
Fisher filed a supplemental brief further objecting to the
determination of his relevant conduct under Blakely v. Washington,
124 S. Ct. 2531 (2004). But Blakely challenges are foreclosed in
this circuit by United States v. Hammoud, 381 F.3d 316 (4th Cir.
2004) (en banc).
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show that the information contained therein is inaccurate or
unreliable. United States v. Carter, 300 F.3d 415, 425 (4th Cir.
2002). In resolving drug quantity disputes, district courts “must
make an independent resolution of the factual issue at sentencing,”
Gilliam, 987 F.2d at 1013, and may do so by expressly adopting the
drug quantity findings contained in the PSR. United States v.
Williams, 152 F.3d 294, 301 (4th Cir. 1998). And, by statute, “the
court of appeals shall . . . accept the findings of fact of the
district court unless they are clearly erroneous.” 18 U.S.C.
§ 3742(e).
The district court’s decision to adopt the drug quantity
amounts set forth in the PSR was not clearly erroneous. The PSR
recounted that John Bines, Fisher’s supplier, told DEA and ATF
agents that he sold Fisher 10 ounces of cocaine base (crack) and
250 grams of cocaine powder. J.A. 107-08. At the sentencing
hearing, Bines testified that he sold Fisher, “four and a half
ounces of crack . . . nine ounces [250 grams] of cocaine . . .
[and] 28 grams of cocaine.” J.A. 92-93. Bines further testified
that he sold Fisher “maybe between four and a half to nine ounces
of crack,” and “from nine to eighteen ounces” of cocaine powder.
J.A. 92-93. Bines’ testimony is not materially inconsistent with
the PSR and the district court did not clearly err by so
concluding. And, to the extent there were any relevant
inconsistencies, the district court did not clearly err by
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determining that Bines’ statement to investigators was more
credible than his testimony at the sentencing hearing. See United
States v. Carter, 300 F.3d 415, 425 (4th Cir. 2002) (“Because the
sentencing judge had only to find the relevant drug quantities by
a preponderance of the evidence, the discrepancy [between a
witness’s trial testimony and his out of court statement to
investigators] . . . essentially raises a credibility issue. . . .
The district court’s factual findings regarding the relative
credibility of [the witness’s] two conflicting stories were not
clearly erroneous.”).
Carl Bell, one of Fisher’s customers, told ATF agents that
between 1998 and December 2001 he purchased $100 of marijuana per
week [about the cost of an ounce] and 1 gram of cocaine per month
from Fisher. J.A. 108. Based on this information, the PSR
recommended holding Fisher accountable for 24 grams of cocaine
powder and 152 ounces [3.4 kilograms] of marijuana. Id. Bell’s
testimony regarding his cocaine purchases from Fisher was
consistent with the information in the PSR. See J.A. 85 (“Q. And
you said that you purchased cocaine from Mr. Fisher two times a
week for three or four years? A. Yeah.”). Bell’s testimony with
regard to his marijuana purchases, however, differed markedly. See
Id. (“Q. How much [marijuana] did you purchase? A. Like ten dollars
worth. Q. How many times? A. Probably once.”). But this
inconsistency is irrelevant. Fisher’s base offense level of 34 was
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calculated pursuant to the PSR’s recommendation to hold him
accountable for the “marijuana equivalent of 5,908.41 kilograms.”
J.A. 108 (emphasis added). Under USSG § 2D1.1(b)(1) the marijuana
equivalent of 3000 kilograms will support a base offense level of
34 and thus, even if the district court had entirely discounted
Bell’s purported marijuana purchases, it would not have altered
Fisher’s sentence. Accordingly, the district court did not clearly
err when it adopted the PSR’s drug quantity determination.
Lastly, Fisher’s complaints regarding inconsistencies between
Oscar Brown’s statement to investigators and his testimony are of
no moment because “none of the drug quantities identified in
Brown’s statements have been counted.” J.A. 107.
CONCLUSION
The district court correctly calculated Fisher’s criminal
history points and did not clearly err when it adopted the factual
findings of the PSR. Accordingly, its judgment is affirmed.
AFFIRMED
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