                             UNPUBLISHED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Affirmed in part and vacated in part by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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




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