                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 03-4596


UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,


           versus

KINTE LADRELL FISHER,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-03-5)


Argued:   October 29, 2004                 Decided:   January 4, 2005


Before NIEMEYER and LUTTIG, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


ARGUED: Geoffrey Wuensch Hosford, HOSFORD & HOSFORD, Wilmington,
North Carolina, for Appellant.     Anne Margaret Hayes, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee. ON BRIEF: Frank D. Whitney,
United States Attorney, Christine Witcover Dean, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

      Appellant Kinte Ladrell Fisher pled guilty to two counts of

possessing cocaine with intent to distribute and one count of

possessing cocaine base with intent to distribute.      J.A. 9-10, 12-

32.   At sentencing, the district court rejected Fisher’s claims

that the Presentence Investigation Report (“PSR”) had improperly

assigned criminal history points for his April 26, 2001 conviction

for resisting a public officer, J.A. 95-96, and that the PSR had

miscalculated the drug quantities that he was “accountable for.”

Id. at 108, 95-96.   We affirm.



                                  I.

      On April 26, 2001, prior to the commission of the drug

offenses at issue in this appeal, Fisher was convicted in North

Carolina state court of resisting a public officer.         J.A. 110.

Fisher appealed pursuant to North Carolina Statute section 15A-

1431(b), which entitled Fisher to a de novo jury trial in the

superior court.   Fisher was awaiting his jury trial at the time he

was sentenced.

      The PSR assigned Fisher three criminal history points based on

the sentence that the state court imposed for Fisher’s conviction

for resisting a public officer.         J.A. 110.   The three criminal

history points were allocated as follows: one point, pursuant to

USSG § 4A1.1(c), for the “prior sentence” attendant to Fisher’s


                                  -2-
conviction of resisting a public officer, and two points, pursuant

to section 4A1.1(d), for commission of the instant drug offenses

while Fisher was “under the 12 month probation term” that the state

district    court     imposed    for   his    resisting      a    public    official

conviction.      J.A. 110.      Fisher objected, claiming that since his

conviction was subject to a de novo jury trial in state superior

court and, according to Fisher, that his sentence was suspended

pending the outcome of that proceeding, his sentence could not be

counted as a “prior sentence” under section 4A1.1.                  J.A. 119.      The

Probation Officer’s response, apparently adopted by the district

court,     was     that    Fisher’s      objection        was      foreclosed       by

section 4A1.2(l), which provides that “[i]n the case of a prior

sentence, the execution of which has been stayed pending appeal,

§ 4A1.1(a), (b), (c), (d), and (f) shall apply as if the execution

of such sentence had not been stayed.”             J.A. 119.

     The probation officer’s interpretation of section 4A1.2(l) in

the context of an “appeal” from a North Carolina district court to

superior     court,    however,    was       foreclosed    by      recent   circuit

precedent.       In United States v. Martin, 378 F.3d 353 (4th Cir.

2004), we held that such “appeals” are not “appeals” within the

meaning of section 4A1.1(l) because “in ‘appealing’ from the North

Carolina district court to superior court, Martin did not seek (and

indeed could not seek) review of the district court proceeding or

disposition;      rather   she   requested      (and   was       only   entitled    to


                                       -3-
request), a trial de novo irrespective of the proceedings or

disposition in the inferior court.”             Id. at 357-58.

     Despite the PSR’s faulty analysis, the parties agreed at oral

argument that Martin dictated that Fisher was correctly assigned

one criminal history point pursuant to section 4A1.1(c).                     This

agreement was apparently based upon Martin’s determination that,

because the sentence imposed by the North Carolina district court

in that case had been “totally stayed” when Martin appealed to the

superior    court,   id.   at    358,     Martin’s        sentence   fell   under

section 4A1.2(a)(3), which provides that “a conviction for which

the imposition or execution of sentence was totally suspended or

stayed shall be counted as a prior sentence under § 4A1.1(c).”

(emphasis     added).           Prior         sentences     considered      under

section 4A1.1(c) receive a single criminal history point and,

indeed, the PSR appears to have relied upon that section for its

recommendation of a single criminal history point for Fisher’s

resisting a public official conviction.             J.A. 110.

     While we ultimately hold that Fisher was correctly assigned

one criminal history point pursuant to section 4A1.1(c), we cannot

do so based on the parties’ proposed reading of Martin.                     Simply

put, Fisher’s sentence was not totally stayed when he appealed to

the superior court, and thus section 4A1.2(a)(3) is inapplicable.

As we did in Martin, we consult North Carolina law to “determine[]

the effect of the state court’s sentence.”                 Martin, 378 F.3d at


                                        -4-
358.   The relevant state statutory provision provides as follows:

       Appeal pursuant to this section stays the execution of
       portions of the judgment relating to fines and costs.
       Appeal stays portions of the judgment relating to
       confinement when the defendant has complied with
       conditions of pretrial release . . . .

N.C. Gen. Stat. § 15A-1431(f) (emphasis added).              Contrary to

appellant’s representation, and as the emphasized portions of the

statute make clear, an appeal from the district court to the

superior court only stays the “portions” of the sentence relating

to fines, costs, and confinement.          Because Martin’s sentence had

only one element, namely “sixty days imprisonment,” Martin, 378

F.3d at 354, her sentence was totally stayed under the statute.

Here, however, Fisher’s sentence included -- in addition to costs

and confinement -- twelve months of probation, J.A. 110, which was

not stayed when he appealed.     See State v. Smith, 598 S.E.2d 408,

411 (N.C. Ct. App. 2004) (“This statute [N.C. Gen. Stat. § 15A-

1431(f)] provides that the only portions of a district court

sentence stayed by an appeal are fines, costs, and terms of

imprisonment if the defendant has complied with pretrial conditions

of release.    ‘If ordinary probation is involved, the defendant

begins   serving   the   probation   despite   the   appeal.’”)   (quoting

Stevens H. Clarke, Law of Sentencing, Probation, and Parole in




                                     -5-
North Carolina, p. 124 (Institute of Gov’t 2ded. 1997)) (emphasis

added).1

     Fisher’s   sentence   is   therefore   a   “prior   sentence”   under

section 4A1.2(a)(1) because it is a “sentence previously imposed

upon adjudication of guilt” and was correctly assigned one criminal

history point under section 4A1.1(c) because it was not countable

under either section 4A1.1(a) or section 4A1.1(b).              See USSG

§ 4A1.1(c) (“Add 1 point for each prior sentence not counted in (a)

or (b).”).

     Appellant also contests the applicability of the criminal

history points he was assigned pursuant to section 4A1.1(d), which

provides for the addition of two criminal history points if “the

defendant committed the instant offense while under any criminal

justice sentence, including probation, parole, supervised release,

imprisonment, work release, or escape status” (emphasis added).

Appellant contends that section “4A1.1(d) does not apply because

Mr. Fisher had not committed any part of the instant offense while

under the criminal justice sentence [for his resisting a public

officer conviction]” because “the district court’s judgment ceased

to exist . . . when Kinte Fisher filed his notice of his intention


     1
       The North Carolina Supreme Court has granted the State’s
request for discretionary review of Smith, State v. Smith,
S.E.2d   , No. 407PA04, 2004 WL 2471339 (N.C. Oct. 6, 2004), and
has temporarily stayed the Court of Appeal’s decision. State v.
Smith, 603 S.E.2d 128 (N.C. 2004). We are satisfied, however, that
the North Carolina Court of Appeals in Smith correctly interpreted
N.C. Gen. Stat. § 15A-1431(f).
                                  -6-
to exercise his right to trial by jury.”    Appellant’s Br. at 12.

But as the foregoing analysis makes clear, Fisher was “serving” the

probation portion of his sentence despite his appeal, see Smith,

598 S.E.2d at 411, and thus the district court properly added two

criminal history points pursuant to section 4A1.1(d).



                               II.

     At sentencing, Fisher also objected to the PSR’s determination

of the quantity of drugs relevant to his base offense level.   This

determination was based upon statements that investigators obtained

from one of Fisher’s drug suppliers, John Bines, and two of

Fisher’s customers, Carl Bell and Oscar Brown.      J.A. 50.    The

district court heard live testimony from these three individuals,

and even though some of the testimony differed from the statements

obtained by investigators, the district court adopted the findings

of the PSR and sentenced Fisher accordingly.   J.A. 95-96.2

     “The Government bears the burden of proving by a preponderance

of the evidence the quantity of drugs for which a defendant should

be held accountable at sentencing.”   United States v. Gilliam, 987

F.2d 1009, 1013 (4th Cir. 1993). When objecting to drug quantities

as set forth in the PSR, the defendant has an affirmative duty to


     2
       Fisher filed a supplemental brief further objecting to the
determination of his relevant conduct under Blakely v. Washington,
124 S. Ct. 2531 (2004). But Blakely challenges are foreclosed in
this circuit by United States v. Hammoud, 381 F.3d 316 (4th Cir.
2004) (en banc).
                               -7-
show that the information contained therein is inaccurate or

unreliable.       United States v. Carter, 300 F.3d 415, 425 (4th Cir.

2002).   In resolving drug quantity disputes, district courts “must

make an independent resolution of the factual issue at sentencing,”

Gilliam, 987 F.2d at 1013, and may do so by expressly adopting the

drug quantity findings contained in the PSR.                         United States v.

Williams, 152 F.3d 294, 301 (4th Cir. 1998).                   And, by statute, “the

court of appeals shall . . . accept the findings of fact of the

district court unless they are clearly erroneous.”                            18 U.S.C.

§ 3742(e).

      The district court’s decision to adopt the drug quantity

amounts set forth in the PSR was not clearly erroneous.                         The PSR

recounted that John Bines, Fisher’s supplier, told DEA and ATF

agents that he sold Fisher 10 ounces of cocaine base (crack) and

250 grams of cocaine powder.                 J.A. 107-08.        At the sentencing

hearing, Bines testified that he sold Fisher, “four and a half

ounces of crack . . . nine ounces [250 grams] of cocaine . . .

[and] 28 grams of cocaine.”               J.A. 92-93.     Bines further testified

that he sold Fisher “maybe between four and a half to nine ounces

of crack,” and “from nine to eighteen ounces” of cocaine powder.

J.A. 92-93.       Bines’ testimony is not materially inconsistent with

the   PSR   and    the     district       court   did    not    clearly   err    by   so

concluding.         And,       to   the    extent    there      were    any    relevant

inconsistencies,         the    district     court      did    not   clearly    err   by


                                            -8-
determining      that    Bines’     statement        to   investigators        was   more

credible than his testimony at the sentencing hearing.                      See United

States v. Carter, 300 F.3d 415, 425 (4th Cir. 2002) (“Because the

sentencing judge had only to find the relevant drug quantities by

a   preponderance       of   the    evidence,       the   discrepancy      [between     a

witness’s     trial     testimony     and    his    out   of    court     statement    to

investigators] . . . essentially raises a credibility issue. . . .

The   district    court’s     factual       findings      regarding      the     relative

credibility of [the witness’s] two conflicting stories were not

clearly erroneous.”).

      Carl Bell, one of Fisher’s customers, told ATF agents that

between 1998 and December 2001 he purchased $100 of marijuana per

week [about the cost of an ounce] and 1 gram of cocaine per month

from Fisher.         J.A. 108.        Based on this information, the PSR

recommended holding Fisher accountable for 24 grams of cocaine

powder and 152 ounces [3.4 kilograms] of marijuana.                        Id.    Bell’s

testimony     regarding       his    cocaine        purchases     from     Fisher     was

consistent with the information in the PSR.                    See J.A. 85 (“Q. And

you said that you purchased cocaine from Mr. Fisher two times a

week for three or four years? A. Yeah.”).                    Bell’s testimony with

regard to his marijuana purchases, however, differed markedly. See

Id. (“Q. How much [marijuana] did you purchase? A. Like ten dollars

worth.   Q.    How    many    times?    A.        Probably     once.”).        But   this

inconsistency is irrelevant. Fisher’s base offense level of 34 was


                                            -9-
calculated   pursuant   to   the   PSR’s   recommendation   to   hold   him

accountable for the “marijuana equivalent of 5,908.41 kilograms.”

J.A. 108 (emphasis added).     Under USSG § 2D1.1(b)(1) the marijuana

equivalent of 3000 kilograms will support a base offense level of

34 and thus, even if the district court had entirely discounted

Bell’s purported marijuana purchases, it would not have altered

Fisher’s sentence. Accordingly, the district court did not clearly

err when it adopted the PSR’s drug quantity determination.

     Lastly, Fisher’s complaints regarding inconsistencies between

Oscar Brown’s statement to investigators and his testimony are of

no moment because “none of the drug quantities identified in

Brown’s statements have been counted.”        J.A. 107.



                               CONCLUSION

     The district court correctly calculated Fisher’s criminal

history points and did not clearly err when it adopted the factual

findings of the PSR.    Accordingly, its judgment is affirmed.



                                                                 AFFIRMED




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