United States v. Joseph Fair

MEMORANDUM

Joseph Damon Fair appeals from the 60-month sentence imposed following his guilty-plea conviction for distribution of a controlled substance, in violation of 21 U.S.C. § 841 (a)(1), (b)(1)(B), and (b)(1)(C). We have jurisdiction under 28 U.S.C. § 1291 , and we affirm, but remand with instructions.

Fair contends that the Fair Sentencing Act applies retroactively to preclude the mandatory minimum sentence imposed by the district court for his crack cocaine conviction. This argument is foreclosed as Fair’s offense conduct and sentencing took place before the law’s enactment. See United States v. Baptist, No. 09-50315, 2011 WL 2150993 at *2-3 (9th Cir. June 2, 2011) (per curiam).

Fair also contends that the district court failed to comply with Fed.R.Crim.P. 32(i)(3) by not properly ruling on his objection to the inclusion of an alias attributed to him in the presentence investigation report (“PSR”). This argument lacks merit as the record reflects that the district court considered Fair’s objection, and resolved the disputed fact against him. See Fed.R.Crim.P. 32(i)(3)(B). In any case, the district court’s decision did not affect the temporal term of the sentence that it…