                              UNPUBLISHED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Affirmed in part, vacated in part and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.
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

                                           2
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

                                                3
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.

                                            4
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

                                           5
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

                                                  6
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).



                                               7
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




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