United States v. Joseph Fair

Ninth Circuit

United States v. Joseph Fair

448 F. App'x 674

CourtCourt of Appeals for the Ninth Circuit

DecidedAugust 18, 2011

Docket10-30183

StatusUnpublished

This text of 448 F. App'x 674 (United States v. Joseph Fair) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Joseph Fair, 448 F. App'x 674 (9th Cir. 2011).

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Opinion

MEMORANDUM **

Joseph Damon Fair appeals from the 60-month sentence imposed following his guilty-plea conviction for distribution of a controlled substance, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and (b)(1)(C). We have jurisdiction under 28 U.S.C. § 1291, and we affirm, but remand with instructions.

Fair contends that the Fair Sentencing Act applies retroactively to preclude the mandatory minimum sentence imposed by the district court for his crack cocaine conviction. This argument is foreclosed as Fair’s offense conduct and sentencing took place before the law’s enactment. See United States v. Baptist, No. 09-50315, 2011 WL 2150993 at *2-3 (9th Cir. June 2, 2011) (per curiam).

Fair also contends that the district court failed to comply with Fed.R.Crim.P. 32(i)(3) by not properly ruling on his objection to the inclusion of an alias attributed to him in the presentence investigation report (“PSR”). This argument lacks merit as the record reflects that the district court considered Fair’s objection, and resolved the disputed fact against him. See Fed.R.Crim.P. 32(i)(3)(B). In any case, the district court’s decision did not affect the temporal term of the sentence that it imposed. See United States v. Saeteurn, 504 F.3d 1175, 1179-80 (9th Cir.2007).

Finally, Fair contends that the district court violated Fed.R.Crim.P. 32(i)(3) by not providing a written record with respect to its determination of the foregoing issue. Because this court requires strict compliance with Rule 32, we remand to the district court with instructions to forward to the Bureau of Prisons a new PSR with the required findings attached. See Doganiere v. United States, 914 F.2d 165, 169 (9th Cir.1990) (district court should attach to PSR portions of sentencing transcript, or written findings or determinations required by Fed.R.Crim.P. 32, and forward the document to the Bureau of Prisons).

AFFIRMED and REMANDED with instructions.

**

This disposition is not appropriate for publication and is not precedent except as provid *676 ed by 9 th Cir. R. 36-3.

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MEMORANDUM **

Joseph Damon Fair appeals from the 60-month sentence imposed following his guilty-plea conviction for distribution of a controlled substance, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and (b)(1)(C). We have jurisdiction under 28 U.S.C. § 1291, and we affirm, but remand with instructions.

Fair contends that the Fair Sentencing Act applies retroactively to preclude the mandatory minimum sentence imposed by the district court for his crack cocaine conviction. This argument is foreclosed as Fair’s offense conduct and sentencing took place before the law’s enactment. See United States v. Baptist, No. 09-50315, 2011 WL 2150993 at *2-3 (9th Cir. June 2, 2011) (per curiam).

Fair also contends that the district court failed to comply with Fed.R.Crim.P. 32(i)(3) by not properly ruling on his objection to the inclusion of an alias attributed to him in the presentence investigation report (“PSR”). This argument lacks merit as the record reflects that the district court considered Fair’s objection, and resolved the disputed fact against him. See Fed.R.Crim.P. 32(i)(3)(B). In any case, the district court’s decision did not affect the temporal term of the sentence that it imposed. See United States v. Saeteurn, 504 F.3d 1175, 1179-80 (9th Cir.2007).

Finally, Fair contends that the district court violated Fed.R.Crim.P. 32(i)(3) by not providing a written record with respect to its determination of the foregoing issue. Because this court requires strict compliance with Rule 32, we remand to the district court with instructions to forward to the Bureau of Prisons a new PSR with the required findings attached. See Doganiere v. United States, 914 F.2d 165, 169 (9th Cir.1990) (district court should attach to PSR portions of sentencing transcript, or written findings or determinations required by Fed.R.Crim.P. 32, and forward the document to the Bureau of Prisons).

AFFIRMED and REMANDED with instructions.

**

This disposition is not appropriate for publication and is not precedent except as provid *676 ed by 9 th Cir. R. 36-3.

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