UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4714

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ALVIN DWIGHT FAIR,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Statesville. Richard L. 

Voorhees, District Judge. (5:03-cr-00051-RLV-DCK-1)

Submitted: April 28, 2015 Decided: May 11, 2015

Before WILKINSON, KING, and DUNCAN, Circuit Judges.

Affirmed in part, vacated in part and remanded by unpublished 

per curiam opinion.

Ross Richardson, Executive Director, Ann L. Hester, FEDERAL 

DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North 

Carolina, for Appellant. Anne M. Tompkins, United States 

Attorney, Anthony J. Enright, Assistant United States Attorney, 

Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

A jury convicted Alvin Dwight Fair of conspiracy to possess 

with intent to distribute 50 grams or more of cocaine base, 21 

U.S.C. § 846 (2012) (Count 1); possession with intent to 

distribute cocaine base, 21 U.S.C. § 841 (2012) (Counts 7, 8, 

and 11); use and carry of a firearm during and in relation to a 

drug trafficking crime, 18 U.S.C. § 924(c)(1) (2012) (Count 9); 

and possession of a firearm by a convicted felon, 18 U.S.C. 

§ 922(g)(1) (2012) (Count 10). The Government filed a 21 

U.S.C. § 851 (2012) notice seeking enhanced penalties and, in 

2006, the district court sentenced Fair to a total of 300 months 

of imprisonment. As to the terms of supervised release, the 

district court sentenced Fair to a 10-year term on Count 1; an 

8-year term on each of Counts 7, 8, and 11; a 3-year term on 

Count 10, and a consecutive 5-year term on Count 9. We affirmed 

on appeal. United States v. Fair, 246 F. App’x 238 (4th Cir. 

2007) (No. 06-5043). 

In November 2012, Fair filed a 28 U.S.C. § 2255 (2012) 

motion to vacate his § 922(g) conviction and sentence in light 

of United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en 

banc), arguing that his prior North Carolina convictions were 

not punishable by more than one year’s imprisonment and 

therefore they did not qualify as felonies under 18 U.S.C. 

§ 922(g) or “felony drug offenses” under 21 U.S.C. § 841. The 
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district court granted relief, vacated the § 922(g) conviction,

and ordered that Fair be resentenced.

The probation officer filed a supplement to the presentence 

report (“PSR”) outlining the revised statutory mandatory 

minimums and maximums. Based on a total offense level of 30 and 

a criminal history category of IV, the probation officer 

calculated an advisory Guidelines range of 135 to 168 months’ 

imprisonment and a mandatory consecutive sentence of not less 

than 5 years on Count 9. In pertinent part, the supplement also 

called for mandatory minimum supervised release terms that were 

lower than what Fair had faced at his original sentencing. 

Specifically, on Counts 1, 8, and 11, the district court was 

required to impose a mandatory minimum term of 4 years on each 

count, 21 U.S.C. § 841(b)(1)(B); a mandatory minimum of 3 years 

on Count 7, 21 U.S.C. § 841(B)(1)(C); and a maximum a term of 

five years on Count 9, 18 U.S.C. § 3583(b)(1) (2012). 

At resentencing, Fair moved for a downward variance based 

on the 18 U.S.C. § 3353(a) (2012) factors. As relevant to this 

appeal, he argued that a variance was warranted because the 

police officers allegedly engaged in impermissible sentence 

manipulation. In making this claim, Fair asserted that the 

police set up two additional drug transactions with him (with 

increasing drug amounts) instead of arresting him after the 

first transaction. Had he been arrested after the first 
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transaction, Fair argued, his Guidelines range would have been

63 to 78 months instead of the 135 to 168 months he faced. 

The district court ultimately rejected Fair’s motion for a 

downward variance and sentenced him at the low end of the 

Guidelines range to 135 months’ imprisonment followed by a 

consecutive mandatory minimum 5-year sentence on Count 9. The 

court, however, reaffirmed Fair’s original sentence, including 

the terms of supervised release “in all [other] respects.” 

We review Fair’s sentence for reasonableness “under a 

deferential abuse-of-discretion standard.” Gall v. United 

States, 552 U.S. 38, 41, 51 (2007). This review entails 

appellate consideration of both the procedural and substantive 

reasonableness of the sentence. Id. at 51. In determining 

procedural reasonableness, we consider whether the district 

court properly calculated Fair’s advisory Guidelines range, gave 

the parties an opportunity to argue for an appropriate sentence, 

considered the 18 U.S.C. § 3553(a) (2012) factors, selected a 

sentence not based on clearly erroneous facts, and sufficiently 

explained the selected sentence. Id. at 49-51. If, and only 

if, we find the sentence procedurally reasonable can we consider 

the substantive reasonableness of the sentence imposed. United 

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). We presume 

that a sentence within the Guidelines range is reasonable. See

United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 
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2010) (“[W]e may and do treat on appeal a district court’s 

decision to impose a sentence within the Guidelines range as 

presumptively reasonable.”). 

On appeal, Fair raises two claims regarding his sentence. 

First, he argues that the district court erred when it refused

to consider his sentencing manipulation argument based on a 

mistaken view that such argument was unavailable in the Fourth 

Circuit. Second, he asserts that the district court erred in 

reimposing the original terms of supervised release. Because 

Fair did not object to any aspect of the sentencing calculus, 

our review is limited to plain error. See United States v. 

Hamilton, 701 F.3d 404, 410 (4th Cir. 2012). “To establish 

plain error, the appealing party must show that an error (1) was 

made, (2) is plain (i.e., clear or obvious), and (3) affects 

substantial rights.” United States v. Lynn, 592 F.3d 572, 577 

(4th Cir. 2010). Even if Fair establishes these three elements, 

the decision to correct the error lies within this court’s 

“remedial discretion,” and this court exercises that discretion 

only if “the error seriously affects the fairness, integrity or 

public reputation of judicial proceedings.” Henderson v. United 

States, 133 S. Ct. 1121, 1126-27 (2013). 

At resentencing, Fair’s counsel conceded that a sentencing 

manipulation argument has not been fully recognized by this 

court but nonetheless argued for a downward variance on this 
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basis. He now asserts that the district court erred in 

concluding it did not have the authority to consider it on the 

merits. While a district court’s failure to recognize its 

discretion to vary downward may constitute procedural error, see

e.g., United States v. Herder, 594 F.3d 352, 362-63 (4th Cir. 

2010), we have reviewed the transcript and conclude that the 

district court did not fail to recognize its discretion to vary, 

but that it rejected on the merits Fair’s argument that he was 

entitled to a variant sentence on this ground. In any event, as 

Fair concedes, although we have not decided whether the theory 

of sentencing manipulation has any basis in law, we have looked 

with skepticism on claims of sentence manipulation. See United 

States v. Jones, 18 F.3d 1145, 1154 (4th Cir. 1994) (“We . . . 

note our skepticism as to whether the government could ever 

engage in conduct not outrageous enough so as to violate due 

process to an extent warranting dismissal of the government’s 

prosecution, yet outrageous enough to offend due process to an 

extent warranting a downward departure with respect to a 

defendant’s sentencing.”). As in Jones, the facts of this case 

do not disclose outrageous conduct and therefore the argument 

was inapplicable. Id. at 1154-55. 

Next, Fair argues that the district court erred in imposing 

the same supervised release terms as imposed in the original 

judgment. At resentencing, Counts 1, 8, and 11 exposed Fair to 
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a mandatory minimum of 4 years and a maximum of term of 5 years,

see United States v. Good, 25 F.3d 218 (4th Cir. 1994) (holding 

that a violation § 841(b)(l)(B), which requires a supervised 

release term of at least 4 years, carries a maximum term of 5

years under § 3583(b)(l)), and Count 7 exposed Fair to a 

mandatory minimum supervised release term of 3 years, with no 

maximum term. The Government concedes that the district court 

erred by reimposing supervised release terms that exceeded the 

statutory maximum terms for Counts 1, 8, and 11. Although the 

term imposed on Count 7 did not exceed any statutory maximum, 

the Government also concedes that the district court erred in 

this regard based on a mistaken understanding that Count 7 was 

subject to an 8-year mandatory minimum term of supervised 

release.*

 

We agree that the court erred at resentencing in reimposing 

the same terms of supervised release for Counts 1, 7, 8, and 11 

as in the original judgment. The error was plain and it 

affected Fair’s substantial rights. See United States v. 

Maxwell, 285 F.3d 336, 342 (4th Cir. 2002) (holding that 

sentencing defendant to term of supervised release that exceeded 

the statutory maximum by 11 months, did, in fact, seriously 

 * The minimum and maximum supervised release terms for Count 

9 were unaffected by the Simmons error. 18 U.S.C. § 3583(b)(1).
8

affect “the fairness, integrity or public reputation of judicial 

proceedings.”)

Accordingly, we vacate the amended judgment imposing 

supervised release on Counts 1, 7, 8, and 11, and remand to the 

district court for proceedings consistent with this opinion. We 

affirm Fair’s sentence in all other respects. We dispense with 

oral argument because the facts and legal contentions are 

adequately presented in the materials before this court and 

argument would not aid the decisional process.

AFFIRMED IN PART;

VACATED IN PART

AND REMANDED