U.S. v. Truesdale, 95-5086

• Decision Date: 06 March 1996
• Docket Number: No. 95-5086,95-5086
• Parties: NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Alvin B. TRUESDALE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 580

78 F.3d 580

NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Alvin B. TRUESDALE, Defendant-Appellant.

No. 95-5086.

United States Court of Appeals, Fourth Circuit.

Submitted Feb. 13, 1996.

Decided March 6, 1996.

Kenneth P. Andresen, Charlotte, North Carolina, for Appellant. Mark T. Calloway, United States Attorney, Kenneth D. Bell, First Assistant United States Attorney, Charlotte, North Carolina, for Appellee.

Before HAMILTON and WILLIAMS, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

OPINION

PER CURIAM:

Appellant, Alvin Truesdale, was convicted for violating 21 U.S.C.A. §§ 841, 846, 848 (West Supp.1995), and 18 U.S.C.A. §§ 924(c), 1956 (West Supp.1995), in the course of his involvement and orchestration of a major cocaine network. On a prior appeal, this court affirmed his conviction, but remanded the case to the district court with instructions to make further factual findings and for resentencing. The district court held a resentencing hearing and entered the same sentence as originally imposed. Truesdale's attorney has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), arguing that the district court made inadequate findings on remand as to the amount of cocaine properly attributable to Truesdale and asserting that there are no meritorious issues for appeal. Truesdale filed an additional brief arguing that the district court made inadequate findings as to the amount of cocaine and whether two prior offenses were properly included in his criminal history. Truesdale asserts that the court was biased and improperly imposed a fine on resentencing. Finding no error, we affirm.

On Truesdale's first appeal, this court affirmed his convictions and remanded to the district court with instructions to vacate Truesdale's conspiracy conviction because it was based on the same events as the continuing criminal enterprise conviction. United States v. McManus, 23 F.3d 878, 888 (4th Cir.1994). This court also instructed the district court to make specific findings with regard to Truesdale's objections to the presentence investigation report concerning the amount of cocaine attributable to him and whether two criminal convictions were properly included in the determination of his criminal history category. Id.

At resentencing, the district court dismissed the conspiracy conviction and "adopt[ed] the presentence report plus its own memory of the extensive amount of cocaine involved in this case, and [found] between 50 and 150 kilograms of cocaine to be involved." The court found that the two prior convictions were properly included in determining Truesdale's criminal history category. The court then imposed sentence upon Truesdale identical to the sentence originally imposed. Although at the sentencing hearing the court stated that it would impose a $5000 fine, in entering the judgment and commitment order, the district court struck the imposition of the fine because no fine was imposed at the original sentencing.

When a defendant alleges a factual inaccuracy in the presentence report, the district court must make a finding as to that fact or determine that a finding is not necessary because the challenged fact will not affect sentencing. Fed.R.Crim.P. 32. If the court's finding coincides with the presentence report, adoption of the facts presented in the presentence report satisfies Rule 32. United States v. Morgan, 942 F.2d 243, 245 (4th Cir.1991).

Truesdale argued that the trial testimony did not support the conclusion that the amount of drugs involved in Truesdale's drug organization was between 50 and 150 kilograms. He argued that the total involved amounted to less than 12 kilograms. However, the district court, relying on its recollection of the amount of cocaine involved, adopted the amount determined in the presentence report and found that between 50 and 150 kilograms were properly attributable and foreseeable to Truesdale.

We find that the district court made adequate factual findings as required by Fed.R.Crim.P. 32 and as directed by our order of remand. Further, the district court's conclusion that 50 to 150 kilograms was properly attributable to Truesdale was not clearly erroneous. See United States v. Hicks, 948 F.2d 877, 881 (4th Cir.1991). One member of the organization testified that he transported cocaine from Florida to Charlotte every other week between 1987 and 1989 and delivered between two and three kilograms of cocaine per trip to Alvin Truesdale. The district court found that approximately 35 trips were made and that between 70 and 105 kilograms of cocaine were brought into Truesdale's organization. Also, on our...