                                                               NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                        No. 10-4454
                                       _____________

                           UNITED STATES OF AMERICA

                                            v.

                           DERRICK STEVEN CLEMONS,
                                             Appellant
                                 _____________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                             (D.C. No 2-10-cr-00028-001)
                     District Judge: Honorable Arthur J. Schwab

                              Argued on January 12, 2012

       Before: McKEE, Chief Judge, FUENTES, and JORDAN, Circuit Judges

                              (Filed: September 26, 2012)

Elisa A. Long
Lisa B. Freeland     [ARGUED]
Office of Federal Public Defender
1001 Liberty Avenue - #1500
Pittsburgh, PA 15222
      Counsel for Appellant

Rebecca R. Haywood [ARGUED]
David J. Hickton
Laura S. Irwin
Office of the United States Attorney
700 Grant Street - #4000
Pittsburgh, PA 15129

                                             1
      Counsel for Appellee

                                    _______________

                               OPINION OF THE COURT
                                   _______________

McKEE, Chief Judge.

       Derrick Clemons appeals his criminal conviction for possession with the intent to

distribute five grams or more of crack cocaine. He argues that the district court erred in

denying his motion to suppress physical evidence, and in refusing to retroactively apply

the provisions of the Fair Sentencing Act of 2010 (“FSA”), and that the court erred in

denying counsel’s motion that the court disqualify itself from hearing his case. For the

reasons expressed below, we will affirm the denial of the motion to suppress and reverse

the ruling on the FSA claim. We need not consider the claim that the district judge

abused his discretion in refusing to disqualify himself from the proceedings.

                                     I. Background

       Because we write primarily for the benefit of the parties, we assume familiarity

with the facts and procedural history. We note only that prior to sentencing, Clemons

asked the district court to retroactively apply the provisions of the FSA. The court

refused and sentenced Clemons to a sixty-month term of imprisonment followed by a

five-year term of supervised release. This appeal followed.

                                      II. Discussion

       A. Motion to Suppress




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       Clemons challenges the district court’s denial of his motion to suppress the

evidence that was obtained through a strip search while he was in custody. After he was

arrested and taken into custody pursuant to an outstanding warrant, police observed a

large bulge under his pants and they then conducted a visual inspection of his anal and

genital areas. They had information that, approximately five years earlier, Clemons had

concealed controlled substances near his genitals. The visual inspection revealed packets

of suspected controlled substances between his penis and scrotum. He now argues this

was a strip search that was impermissible under the circumstances.

       However, we need not reach the question of whether the police officers properly

conducted a “strip search” under the Fourth Amendment. Even if we assume arguendo

that the search was unconstitutional, the evidence is admissible under the doctrine of

inevitable discovery. See United States v. Stabile, 633 F.3d 219, 245 (3d Cir. 2011). The

inevitable discovery doctrine “considers what would have happened in the absence of the

initial search.” United States v. Herrold, 962 F.2d 1131, 1140 (3d Cir. 1992). Here, the

large plastic baggie containing drugs secured to Clemons’ genital area would have been

found during the routine intake process that is conducted before anyone is admitted to a

detention facility.

       As we noted at the outset, Clemons was arrested on an outstanding arrest warrant.

He was clearly going to be placed in a detention facility of some kind pending a bail

determination, and he does not argue otherwise. It cannot seriously be argued that, under

those circumstances, he would not have been placed in routine intake procedures that

would have revealed that a baggie was secured between his penis and scrotum. Common

                                             3
sense suggests that that would have aroused his jailers’ curiosity and that they would

have thought that just a wee bit peculiar—thus prompting further inquiry. That inquiry

would have certainly disclosed the drugs. We therefore conclude that the district court

did not err in admitting the drugs.



       B. Sentencing

       To its credit, and in the finest tradition of representing the Government, the

Assistant United States Attorney here has conceded that the district court erred by failing

to conclude that the FSA was applicable in this case. See Appellee Br. at 39. Following

the implementation of the FSA, the threshold for a mandatory sentence increased to 28

grams of crack cocaine. See 21 U.S.C. § 841(b)(1)(B)(iii). Because Clemons possessed

8.5 grams of crack cocaine, the mandatory minimum no longer applied to him.

       The only dispute as to the FSA claim is whether this Court should remand for

resentencing. A sentence calculated using an erroneous Guidelines range generally

requires reversal, unless the miscalculation is harmless. United States v. Langford, 516

F.3d 205, 215 (3d Cir. 2008). The Government contends that no remand is necessary

because the failure to apply the FSA constituted harmless error. We cannot agree.

       Unless we can conclude that the district court would have imposed the same

sentence using the correct Guidelines range, we must remand for resentencing. Id. at

215-16. The 60-month sentence imposed here falls within both the incorrect Guidelines

range calculated using the mandatory minimum and the correct Guidelines range of 51 to

63 months. Thus, we cannot be sure that the district court would have imposed the same

                                             4
sentence had it concluded that the FSA did apply. Where, as here, a sentence falls within

both an incorrectly calculated range, and a correctly calculated range, we have no way of

knowing if the trial court would have imposed the same number of months if it had

started with the correct Guideline calculation. Accordingly, we will remand the case for

resentencing.

                                     III. Conclusion

       For the reasons expressed above we will affirm the denial of the motion to

suppress and vacate the sentence imposed. The case is remanded for resentencing limited

to one sentencing issue addressed herein. See United States v. Salinas-Cortez, 660 F.3d

695, 698 (3d Cir. 2001). Inasmuch as the district court has agreed to allow a different

judge to resentence if we ordered a remand, see United States v. Cunningham, No. 07-

0298 (W.D. Pa. Jul. 31, 2012) (order continuing disqualification), the case will be

reassigned to a different judge for resentencing.




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