United States v. Blair , 29 F. App'x 821 ( 2002 )

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
1-30-2002
USA v. Blair
Precedential or Non-Precedential:
Docket 1-2297
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"USA v. Blair" (2002). 2002 Decisions. Paper 67.
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NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 01-2297
___________
UNITED STATES OF AMERICA
vs.
GROVER BLAIR,
Appellant.
___________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Criminal No. 00-cr-00576)
District Judge: The Honorable Mary Little Cooper
___________
Submitted Under Third Circuit LAR 34.1(a)
January 22, 2002
BEFORE: NYGAARD and STAPLETON, Circuit Judges,
and CAPUTO, District Judge.
(Filed January 30, 2002)
___________
MEMORANDUM OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Appellant, Grover Blair, pleaded guilty to being a convicted
felon in
possession of a firearm that was "in or affecting commerce," in violation
of 18 U.S.C.
922 (g)(1). He was sentenced to 84 months in prison, with the
recommendation to the
Bureau of Prisons that he receive credit for time served. He was also
sentenced to three
years of supervised release, a fine of $500.00, and a special assessment
of $100.00. The
judgment was later amended to include a recommendation to the Bureau of
Prisons that
credit for time served extend back to Blair's initial appearance in
federal court, or
September 22, 2000. Blair appeals, raising the four issues listed in
Section I below. We
will affirm.
I. ISSUES
1. Did the District Court err by finding that Blair's
previous conviction for a
violation of N.J.S.A. 2C:35-6, Employment of a Juvenile in Drug
Distribution, was a controlled substance offense for purposes of
U.S.S.G.
4B1.2(b), thereby enhancing his base offense level by four
levels?
2. Did the District Court err by finding that two of
Blair's prior state
convictions were not part of a single scheme or plan, due to the
fact that
there was an "intervening arrest," even though Blair's first
offense had not
been adjudicated prior to his second arrest?
3. Did the District Court err when it found that it did not
have the authority to
give Blair custodial credit back to his original sentencing date?
4. Did the District Court err by not sua sponte dismissing
the indictment for
lack of any commercial or transactional aspects to Blair's
possession of a
firearm?
II. DISCUSSION
Appellant first argues that the District Court erred by finding
that one of his
prior convictions, "employment of a juvenile in a drug distribution," was
a controlled
substance offense as defined under U.S.S.G. 4B1.2(b). We reject that
argument. First,
appellant stipulated in his plea agreement to that fact. Moreover, the
evidence of record
and the state court documents fully support the District Court's finding
that the appellant
employed a juvenile to distribute cocaine.
Secondly, appellant's claim that his two prior drug trafficking
offenses were
"related" under U.S.S.G. 4A1.2(a)(2) is also meritless. The simple
response to his
argument is that those sentences arose from offenses that were separated
by an
intervening arrest. (See Application Note 3 of 4A1.2)
Appellant's third contention on appeal is the District Court
erred by
concluding it did not have the authority to order the Bureau of Prisons to
grant him credit
from the date of his initial appearance. The date on which a defendant's
sentence is
deemed to commence is controlled by 18 U.S.C. 3585(a), and the decision
is
committed, in the first instance, to the exclusive authority of the Bureau
of Prisons. The
District Court was correct. It simply did not have the authority to
effectively "back date"
a sentence to commence on the date his sentencing was arguably scheduled.
That would
effectively give him credit for presentence custody.
Finally, the appellant argues that the District Court erred by
not sua sponte
dismissing the indictment for lack of any commercial or transactional
aspects to Blair's
possession of a firearm. Inasmuch as this issue was not raised before the
District Court,
to prevail on appeal, he must show that it was plain error. We conclude
that it is not.
Appellant's argument is essentially that 922 was beyond Congress's powers
under
Article I, Section 8, of the United States Constitution. This argument
has no merit. See
United States v. Singletary, 268 F.3d 196 (3d Cir. 2001); United States v.
Gateward, 84
F.3d 670 (3d Cir. 1996); United States v. Rybar, 103 F.3d 273 (3d Cir.
1996).
III. CONCLUSION
In summary and for all the reasons explained above, we will
affirm the
judgment of the District Court.
_________________________
TO THE CLERK:
Please file the foregoing opinion.
/s/ Richard L. Nygaard
Circuit Judge