United States v. Fifer ( 2010 )


Menu:
  •                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 10a0293n.06
    
                                              NO. 07-5633
                                                                                          FILED
                                 UNITED STATES COURT OF APPEALS                        May 12, 2010
                                      FOR THE SIXTH CIRCUIT                      LEONARD GREEN, Clerk
    
    
    UNITED STATES OF AMERICA,                            )
                                                         )
           Plaintiff-Appellee,                           )      ON APPEAL FROM THE UNITED
                                                         )      STATES DISTRICT COURT FOR
    v.                                                   )      THE WESTERN DISTRICT OF
                                                         )      TENNESSEE
    DEMARCUS FIFER,                                      )
                                                         )      AMENDED OPINION
           Defendant-Appellant.                          )
    
    
    
           Before: COOK and McKEAGUE, Circuit Judges; HOOD, Senior District Judge.*
    
           HOOD, Senior District Judge. Defendant/Appellant Demarcus Fifer (“Defendant”) was
    
    sentenced on charges of being a felon in possession of a firearm and being in possession of cocaine
    
    base with the intent to distribute. Defendant appealed his sentence, and this Court remanded the
    
    matter for resentencing. Defendant now appeals the sentence imposed by the district court during
    
    resentencing. For the reasons set forth below, Defendant’s sentence is affirmed.
    
                                            BACKGROUND
    
           On February 6, 2006, a jury in the Western District of Tennessee found Defendant guilty of
    
    being a felon in possession of a firearm, in violation of 21 U.S.C. § 841(a)(1), and of being in
    
    possession of cocaine base with intent to distribute, in violation of 18 U.S.C. § 922(g). On August
    
    19, 2004, the district court determined, based upon the information contained in the Presentence
    
    
            *The Honorable Joseph M. Hood, Senior United States District Judge for the Eastern
    District of Kentucky, sitting by designation.
    Report, that Defendant was a career offender pursuant to § 4B1.1 of the United States Sentencing
    
    Guidelines (the “Guidelines”). Defendant was sentenced to 120 months imprisonment on the firearm
    
    offense and 292 months imprisonment on the drug offense, with the sentences to run concurrently.
    
            Defendant appealed his conviction and sentence. On November 20, 2006, finding no errors
    
    warranting reversal of Defendant’s conviction, but finding that the district court’s reliance on the
    
    presentence report alone was, without more, insufficient to classify Defendant as a career offender,
    
    this Court remanded the case for resentencing. See United States v. Fifer, 206 Fed. Appx. 502 (6th
    
    Cir. 2006).1 Specifically, this Court remanded the case to the district court to determine:
    
             . . . whether Fifer was properly deemed a “career offender” under to [sic] U.S.S.G.
            § 4B1.1. The district court is required to explain the basis for its conclusion that
            Fifer's prior convictions were qualifying offenses, or to sentence Fifer anew in
            accordance with Shepard and Taylor. Finally, we VACATE and REMAND Fifer's
            sentence to be recalculated in accordance with Booker.
    
    Id. at 513.
    
            On May 4, 2007, the district court conducted a resentencing hearing, imposing the same
    
    sentence of 120 and 292 months, to run concurrently. Defendant appeals his new sentence, arguing
    
    that the district court exceeded the scope of the remand by considering additional evidence of his
    
    prior crimes during the resentencing and by failing to apply the November 1, 2007 amendment to
    
    § 4A1.2 of the Guidelines.
    
                                             DISCUSSION
    
            Scope of Mandate
    
            Defendant argues that the district court exceeded the scope of this Court’s mandate when,
    
    
    
            1
              As this Court’s previous Opinion contains a detailed narrative of the facts underlying the
    charges against Defendant, they will not be repeated herein.
    
                                                     2
    at the resentencing hearing, the district court considered additional evidence regarding Defendant’s
    
    prior convictions in order “to either explain the basis for its conclusion that the prior convictions
    
    were qualifying offenses under U.S.S.G. § 4B1.1, or to sentence Fifer anew in accordance with
    
    Shepard and Taylor.” Id. at 513.
    
           This Court has interpreted Shepard v. United States, 
    544 U.S. 13
     (2005) and Taylor v. United
    
    States, 
    495 U.S. 575
     (1990) “to mean that a district court’s determination of whether a defendant is
    
    a career offender under U.S.S.G. § 4B1.1 must be based on information contained in the judicial
    
    record.” Fifer, 206 Fed. Appx. at 512 (citing United States v. Calloway, 189 Fed. Appx. 486, 490-91
    
    (6th Cir. 2006)). At the resentencing hearing, the district court followed this Court’s directive and
    
    received additional evidence into the record in order to determine if Defendant’s prior crimes were
    
    crimes of violence. Specifically, the district court considered the charging documents and judgments
    
    from the Criminal Court of Shelby County, the place of Defendant’s prior convictions, which were
    
    attached to the Third Addendum to the Presentence Report. Upon review of the charging documents
    
    and judgments from the Criminal Court of Shelby County, the district court concluded that
    
    Defendant’s prior crimes were crimes of violence, thus classifying him as a career offender pursuant
    
    to § 4B1.1 of the Guidelines.
    
           Defendant has provided no persuasive authority in light of our decision in United States v.
    
    Stout, 
    599 F.3d 549
    , 557 (6th Cir. 2010) to support his argument that the district court was not
    
    entitled to accept additional evidence in order to comply with this Court’s mandate to explain the
    
    basis for its conclusion that the prior convictions were qualifying offenses under U.S.S.G. § 4B1.1
    
    or to sentence Defendant anew consistent with Shepard and Taylor. At Defendant’s resentencing
    
    hearing, the district court recognized the very purpose of the remand when it stated that “what I have
    
    
                                                      3
    to do is determine whether the defendant is a career offender, or look anew at that issue.” In order
    
    to look anew at that issue, it was necessary for the district court to consider the documents attached
    
    to the Third Addendum to the Presentence Report. After considering the charging documents and
    
    judgments from the Criminal Court of Shelby County, the district court concluded that the judicial
    
    record provided a basis for concluding that Defendant is a career offender, pursuant to § 4B1.1 of
    
    the Guidelines.
    
           This Court finds no error in the district court’s consideration of additional information at the
    
    resentencing hearing and will affirm Defendant’s sentence.
    
           Sentencing Guidelines Amendment
    
           Defendant was resentenced on May 4, 2007, and the district court properly applied the 2003
    
    version of the Guidelines which were in effect at that time. Defendant now argues that his case
    
    should be remanded to the district court to consider the November 1, 2007 amendment to § 4A1.2
    
    of the Guidelines, as the application of the 2007 Guidelines would not result in his classification as
    
    a career offender. Contrary to Defendant’s argument, regardless of which version of the Guidelines
    
    is used to calculate Defendant’s sentence, he is characterized as a career offender because the record
    
    reflects an intervening arrest which requires that his previous sentences be counted separately.
    
           Section 4A1.2(a) of the Guidelines is used to determine whether a defendant is classified as
    
    a career offender pursuant to § 4B1.1, which provides that:
    
           a) A defendant is a career offender if (1) the defendant was at least eighteen years old
           at the time the defendant committed the instant offense of conviction; (2) the instant
           offense of conviction is a felony that is either a crime of violence or a controlled
           substance offense; and (3) the defendant has at least two prior felony convictions of
           either a crime of violence or a controlled substance offense.
    
    To determine how to count prior convictions, one looks to § 4A1.2(a)(2). Section 4A1.2(a)(2) of
    
    
                                                      4
    the 2003 version of the Guidelines contained the following language regarding how to treat prior
    
    sentences imposed in related and unrelated cases:
    
           (2) Prior sentences imposed in unrelated cases are to be counted separately. Prior
           sentences imposed in related cases are to be treated as one sentence for purposes of
           4A1.1(a), (b) and (c). Use the longest sentence of imprisonment if concurrent
           sentences were imposed and the aggregate sentence of imprisonment imposed in the
           case of consecutive sentences.
    
    U.S.S.G. § 4A1.2(a)(2) (2003). Effective November 1, 2007, that provision was amended to state
    
    the following:
    
           (2) If the defendant has multiple prior sentences, determine whether those sentences
           are counted separately or as a single sentence. Prior sentences always are counted
           separately if the sentences were imposed for offenses that were separated by an
           intervening arrest (i.e., the defendant is arrested for the first offense prior to
           committing the second offense). If there is no intervening arrest, prior sentences are
           counted separately unless (A) the sentences resulted from offenses contained in the
           same charging instrument; or (B) the sentences were imposed on the same day.
           Count any prior sentence covered by (A) or (B) as a single sentence.
    
    U.S.S.G. § 4A1.2(a)(2) (2007).
    
           The record indicates that Defendant was arrested on November 27, 1997 for aggravated
    
    assault involving a firearm, a felony. Defendant was also arrested for felony aggravated assault on
    
    June 14, 1998; however, this assault involved the use of a bottle. Although he was sentenced for the
    
    aggravated assaults on the same day, January 20, 1999, as explained in the 2007 version of the
    
    Guidelines, Defendant’s prior sentences are counted separately because they were separated by an
    
    intervening arrest. Regardless of which version of the Guidelines applies, Defendant has two
    
    convictions for felony crimes of violence, qualifying him as a career offender under § 4B1.1.
    
    Because application of the 2007 amendment to § 4A1.2(a)(2) would not alter the calculation of
    
    Defendant’s criminal history, the Court need not address the issue of whether the amendment is
    
    subject to retroactive application. Defendant’s request that the 2007 amendment to the Guidelines
    
                                                     5
    be applied retroactively would be fruitless.
    
                                             CONCLUSION
    
           For the foregoing reasons, Defendant’s sentence is AFFIRMED.
    
    
    
    
                                                   6
    

Document Info

DocketNumber: 07-5633

Filed Date: 5/12/2010

Precedential Status: Non-Precedential

Modified Date: 9/22/2015