UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4116

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

VERN ODELL CRAWFORD, a/k/a Odell V. Crawford, a/k/a O’Dell 

Crawford,

Defendant – Appellant.

Appeal from the United States District Court for the Western 

District of Virginia, at Harrisonburg. Samuel G. Wilson, 

District Judge. (5:07-cr-00058-sgw-1)

Argued: October 29, 2010 Decided: January 10, 2011

Before MOTZ, GREGORY, and SHEDD, Circuit Judges.

Affirmed in part and vacated in part by unpublished opinion. 

Judge Shedd wrote the opinion, in which Judge Motz and Judge 

Gregory joined.

ARGUED: Seth Allen Neyhart, Chapel Hill, North Carolina, for 

Appellant. Jean Barrett Hudson, OFFICE OF THE UNITED STATES 

ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF:

Timothy J. Heaphy, United States Attorney, Roanoke, Virginia, 

for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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SHEDD, Circuit Judge:

Vern Odell Crawford appeals from his criminal conviction

and sentence. For the reasons below, we affirm in part and 

vacate in part.

I.

A jury convicted Crawford on twelve counts of 

methamphetamine distribution, two counts of cocaine 

hydrochloride distribution, and one count of amphetamine 

distribution. However, the jury acquitted Crawford on charges 

that he had been involved in a conspiracy to distribute drugs. 

The district court imposed a $1,000,000.00 fine as part of his 

sentence but did not make any specific findings regarding 

Crawford’s ability to pay the fine. Crawford raises seven 

issues on appeal. After a thorough review of all seven issues, 

we address only two, and we find only one to have merit. 

Crawford did not raise either of these two issues below. 

Therefore, our review is for plain error. See Fed. R. Crim. P. 

52(b). Four conditions must be met before we will recognize 

plain error: (1) there is error; (2) the error is plain under 

current law; (3) the error affects the defendant’s substantial 

rights; and (4) the error seriously affects the fairness, 

integrity, or public reputation of judicial proceedings. United 

States v. Olano, 507 U.S. 725, 733-737 (1993). 
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II.

Crawford argues that the court improperly calculated his

sentence in violation of his Fifth and Sixth Amendment rights.

The jury convicted Crawford on 15 various drug distribution 

charges, supported by witness testimony as to 94.22 grams of 

methamphetamines but acquitted Crawford on the conspiracy 

charges. However, at sentencing, the court adopted a drug 

weight of 5-15 kilograms of methamphetamines, as calculated in 

the Pre-Sentence Report (“PSR”), based upon judicial findings of 

relevant conduct, including the alleged conspiracy. Crawford 

challenges the court’s consideration of this drug weight at 

sentencing as unreasonable and a violation of his constitutional 

rights because the jury did not convict him of the conduct 

related to this additional drug weight.

“It has long been established that sentencing courts may 

consider acquitted conduct in establishing drug amounts for the 

purpose of sentencing, so long as the amounts are established by 

a preponderance of the evidence.” United States v. Perry, 560 

F.3d 246, 258 (4th Cir. 2009). Because the court found by a 

preponderance of the evidence that the 5-15 kilogram drug weight 

was attributable to Crawford, the court did not commit error by 

considering it as relevant conduct for the purpose of 

establishing Crawford’s sentence, despite the fact that the drug 

weight stemmed from acquitted conduct.
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III.

Crawford also argues that the issue of his fine should be 

remanded for the purpose of making appropriate findings as to 

his ability to pay such a fine. Before a district court can 

impose a fine, it must consider the impact of the fine on a 

defendant, including a defendant’s income, earning capacity, and 

financial resources. See 18 U.S.C. § 3572. As we have 

explained, “the district court must make factual findings with 

respect to applicable section 3572 factors, so that there can be 

a basis from which to review whether the district court abused 

its discretion in assessing a fine.” United States v. Walker, 

39 F.3d 489, 492 (4th Cir. 1994).

The PSR states that Crawford does not have the ability to 

pay a fine because “[a]ll known assets have been attached by the 

government for forfeiture.” J.A. 147. However, without making 

the specific findings required by § 3572, the court concluded 

that Crawford should pay a $1,000,000.00 fine. Without the 

specific factual findings required by § 3572, there is no basis 

for effective appellate review of the fine imposed. See United 

States v. Chorman, 910 F.2d 102 (4th Cir. 1990).

IV.

Based on the foregoing, we affirm Crawford’s conviction. 

We also affirm his sentence, except for the imposition of the 
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fine. Accordingly, we vacate the district court’s imposition of 

a fine and remand that portion of the case to the district court 

with instructions to make the findings required by 18 U.S.C. 

§ 3572.

AFFIRMED IN PART

AND VACATED IN PART