                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0248n.06

                                           No. 07-5633
                                                                                       FILED
                             UNITED STATES COURT OF APPEALS                        Apr 22, 2010
                                  FOR THE SIXTH CIRCUIT                       LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )      ON APPEAL FROM THE UNITED
                                                     )      STATES DISTRICT COURT FOR
v.                                                   )      THE WESTERN DISTRICT OF
                                                     )      TENNESSEE
DEMARCUS FIFER,                                      )
                                                     )
       Defendant-Appellant.                          )



       Before: COOK and McKEAGUE, Circuit Judges; HOOD, Senior District Judge.*

       HOOD, Senior District Judge. Defendant/Appellant Demarcus Fifer (“Defendant”) was

sentenced on charges of being a felon in possession of a firearm and being in possession of cocaine

base with the intent to distribute. Defendant appealed his sentence, and this Court remanded the

matter for resentencing. Defendant now appeals the sentence imposed by the district court during

resentencing. For the reasons set forth below, Defendant’s sentence is affirmed.

                                        BACKGROUND

       On February 6, 2006, a jury in the Western District of Tennessee found Defendant guilty of

being a felon in possession of a firearm, in violation of 21 U.S.C. § 841(a)(1), and of being in

possession of cocaine base with intent to distribute, in violation of 18 U.S.C. § 922(g). On August

19, 2004, the district court determined, based upon the information contained in the Presentence


        *The Honorable Joseph M. Hood, Senior United States District Judge for the Eastern
District of Kentucky, sitting by designation.
No. 07-5633
United States v. Fifer

Report, that Defendant was a career offender pursuant to § 4B1.1 of the United States Sentencing

Guidelines (the “Guidelines”). Defendant was sentenced to 120 months imprisonment on the firearm

offense and 292 months imprisonment on the drug offense, with the sentences to run concurrently.

        Defendant appealed his conviction and sentence. On November 20, 2006, finding no errors

warranting reversal of Defendant’s conviction, but finding that the district court’s reliance on the

presentence report alone was, without more, insufficient to classify Defendant as a career offender,

this Court remanded the case for resentencing. See United States v. Fifer, 206 Fed. Appx. 502 (6th

Cir. 2006).1 Specifically, this Court remanded the case to the district court to determine:

         . . . whether Fifer was properly deemed a “career offender” under to [sic] U.S.S.G.
        § 4B1.1. The district court is required to explain the basis for its conclusion that
        Fifer's prior convictions were qualifying offenses, or to sentence Fifer anew in
        accordance with Shepard and Taylor. Finally, we VACATE and REMAND Fifer's
        sentence to be recalculated in accordance with Booker.

Id. at 513.

        On May 4, 2007, the district court conducted a resentencing hearing, imposing the same

sentence of 120 and 292 months, to run concurrently. Defendant appeals his new sentence, arguing

that the district court exceeded the scope of the remand by considering additional evidence of his

prior crimes during the resentencing and by failing to apply the November 1, 2007 amendment to

§ 4A1.2 of the Guidelines.

                                         DISCUSSION

        Scope of Mandate


        1
          As this Court’s previous Opinion contains a detailed narrative of the facts underlying the
charges against Defendant, they will not be repeated herein.

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United States v. Fifer

       Defendant argues that the district court exceeded the scope of this Court’s mandate when,

at the resentencing hearing, the district court considered additional evidence regarding Defendant’s

prior convictions in order “to either explain the basis for its conclusion that the prior convictions

were qualifying offenses under U.S.S.G. § 4B1.1, or to sentence Fifer anew in accordance with

Shepard and Taylor.” Id. at 513.

       This Court has interpreted Shepard v. United States, 544 U.S. 13 (2005) and Taylor v. United

States, 495 U.S. 575 (1990) “to mean that a district court’s determination of whether a defendant is

a career offender under U.S.S.G. § 4B1.1 must be based on information contained in the judicial

record.” Fifer, 206 Fed. Appx. at 512 (citing United States v. Calloway, 189 Fed. Appx. 486, 490-91

(6th Cir. 2006)). At the resentencing hearing, the district court followed this Court’s directive and

received additional evidence into the record in order to determine if Defendant’s prior crimes were

crimes of violence. Specifically, the district court considered the charging documents and judgments

from the Criminal Court of Shelby County, the place of Defendant’s prior convictions, which were

attached to the Third Addendum to the Presentence Report. Upon review of the charging documents

and judgments from the Criminal Court of Shelby County, the district court concluded that

Defendant’s prior crimes were crimes of violence, thus classifying him as a career offender pursuant

to § 4B1.1 of the Guidelines.

       Defendant has provided no authority to support his argument that the district court was not

entitled to accept additional evidence in order to comply with this Court’s mandate to explain the

basis for its conclusion that the prior convictions were qualifying offenses under U.S.S.G. § 4B1.1

or to sentence Defendant anew consistent with Shepard and Taylor. At Defendant’s resentencing

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United States v. Fifer

hearing, the district court recognized the very purpose of the remand when it stated that “what I have

to do is determine whether the defendant is a career offender, or look anew at that issue.” In order

to look anew at that issue, it was necessary for the district court to consider the documents attached

to the Third Addendum to the Presentence Report. After considering the charging documents and

judgments from the Criminal Court of Shelby County, the district court concluded that the judicial

record provided a basis for concluding that Defendant is a career offender, pursuant to § 4B1.1 of

the Guidelines.

       This Court finds no error in the district court’s consideration of additional information at the

resentencing hearing and will affirm Defendant’s sentence.

       Sentencing Guidelines Amendment

       Defendant was resentenced on May 4, 2007, and the district court properly applied the 2003

version of the Guidelines which were in effect at that time. Defendant now argues that his case

should be remanded to the district court to consider the November 1, 2007 amendment to § 4A1.2

of the Guidelines, as the application of the 2007 Guidelines would not result in his classification as

a career offender. Contrary to Defendant’s argument, regardless of which version of the Guidelines

is used to calculate Defendant’s sentence, he is characterized as a career offender because the record

reflects an intervening arrest which requires that his previous sentences be counted separately.

       Section 4A1.2(a) of the Guidelines is used to determine whether a defendant is classified as

a career offender pursuant to § 4B1.1, which provides that:

       a) A defendant is a career offender if (1) the defendant was at least eighteen years old
       at the time the defendant committed the instant offense of conviction; (2) the instant
       offense of conviction is a felony that is either a crime of violence or a controlled

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United States v. Fifer

       substance offense; and (3) the defendant has at least two prior felony convictions of
       either a crime of violence or a controlled substance offense.

To determine how to count prior convictions, one looks to § 4A1.2(a)(2). Section 4A1.2(a)(2) of

the 2003 version of the Guidelines contained the following language regarding how to treat prior

sentences imposed in related and unrelated cases:

       (2) Prior sentences imposed in unrelated cases are to be counted separately. Prior
       sentences imposed in related cases are to be treated as one sentence for purposes of
       4A1.1(a), (b) and (c). Use the longest sentence of imprisonment if concurrent
       sentences were imposed and the aggregate sentence of imprisonment imposed in the
       case of consecutive sentences.

U.S.S.G. § 4A1.2(a)(2) (2003). Effective November 1, 2007, that provision was amended to state

the following:

       (2) If the defendant has multiple prior sentences, determine whether those sentences
       are counted separately or as a single sentence. Prior sentences always are counted
       separately if the sentences were imposed for offenses that were separated by an
       intervening arrest (i.e., the defendant is arrested for the first offense prior to
       committing the second offense). If there is no intervening arrest, prior sentences are
       counted separately unless (A) the sentences resulted from offenses contained in the
       same charging instrument; or (B) the sentences were imposed on the same day.
       Count any prior sentence covered by (A) or (B) as a single sentence.

U.S.S.G. § 4A1.2(a)(2) (2007).

       The record indicates that Defendant was arrested on November 27, 1997 for aggravated

assault involving a firearm, a felony. Defendant was also arrested for felony aggravated assault on

June 14, 1998; however, this assault involved the use of a bottle. Although he was sentenced for the

aggravated assaults on the same day, January 20, 1999, as explained in the 2007 version of the

Guidelines, Defendant’s prior sentences are counted separately because they were separated by an

intervening arrest. Regardless of which version of the Guidelines applies, Defendant has two

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United States v. Fifer

convictions for felony crimes of violence, qualifying him as a career offender under § 4B1.1.

Because application of the 2007 amendment to § 4A1.2(a)(2) would not alter the calculation of

Defendant’s criminal history, the Court need not address the issue of whether the amendment is

subject to retroactive application. Defendant’s request that the 2007 amendment to the Guidelines

be applied retroactively would be fruitless.

                                         CONCLUSION

       For the foregoing reasons, Defendant’s sentence is AFFIRMED.




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