Third Circuit disposition — 012297mo-pdf

NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 01-2297
___________
UNITED STATES OF AMERICA
vs.
GROVER BLAIR,
Appellant.
___________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Criminal No. 00-cr-00576)
District Judge: The Honorable Mary Little Cooper
___________
Submitted Under Third Circuit LAR 34.1(a)
January 22, 2002
BEFORE: NYGAARD and STAPLETON, Circuit Judges,
and CAPUTO, District Judge.
(Filed January 30, 2002)
___________
MEMORANDUM OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Appellant, Grover Blair, pleaded guilty to being a convicted felon in
possession of a firearm that was "in or affecting commerce," in violation of 18 U.S.C.
922 (g)(1). He was sentenced to 84 months in prison, with the recommendation to the
Bureau of Prisons that he receive credit for time served. He was also sentenced to three
years of supervised release, a fine of $500.00, and a special assessment of $100.00. The
judgment was later amended to include a recommendation to the Bureau of Prisons that
credit for time served extend back to Blair’s initial appearance in federal court, or
September 22, 2000. Blair appeals, raising the four issues listed in Section I below. We
will affirm.
I. ISSUES
1. Did the District Court err by finding that Blair’s previous conviction for a

-- 1 of 2 --

violation of N.J.S.A. 2C:35-6, Employment of a Juvenile in Drug
Distribution, was a controlled substance offense for purposes of U.S.S.G.
4B1.2(b), thereby enhancing his base offense level by four levels?
2. Did the District Court err by finding that two of Blair’s prior state
convictions were not part of a single scheme or plan, due to the fact that
there was an "intervening arrest," even though Blair’s first offense had not
been adjudicated prior to his second arrest?
3. Did the District Court err when it found that it did not have the authority
give Blair custodial credit back to his original sentencing date?
4. Did the District Court err by not sua sponte dismissing the indictment for
lack of any commercial or transactional aspects to Blair’s possession of a
firearm?
II. DISCUSSION
Appellant first argues that the District Court erred by finding that one of his
prior convictions, "employment of a juvenile in a drug distribution," was a controlled
substance offense as defined under U.S.S.G. 4B1.2(b). We reject that argument. First,
appellant stipulated in his plea agreement to that fact. Moreover, the evidence of record
and the state court documents fully support the District Court’s finding that the appellant
employed a juvenile to distribute cocaine.
Secondly, appellant’s claim that his two prior drug trafficking offenses were
"related" under U.S.S.G. 4A1.2(a)(2) is also meritless. The simple response to his
argument is that those sentences arose from offenses that were separated by an
intervening arrest. (See Application Note 3 of 4A1.2)
Appellant’s third contention on appeal is the District Court erred by
concluding it did not have the authority to order the Bureau of Prisons to grant him credit
from the date of his initial appearance. The date on which a defendant’s sentence is
deemed to commence is controlled by 18 U.S.C. 3585(a), and the decision is
committed, in the first instance, to the exclusive authority of the Bureau of Prisons. The
District Court was correct. It simply did not have the authority to effectively "back date"
a sentence to commence on the date his sentencing was arguably scheduled. That would
effectively give him credit for presentence custody.
Finally, the appellant argues that the District Court erred by not sua sponte
dismissing the indictment for lack of any commercial or transactional aspects to Blair’s
possession of a firearm. Inasmuch as this issue was not raised before the District Court,
to prevail on appeal, he must show that it was plain error. We conclude that it is not.
Appellant’s argument is essentially that 922 was beyond Congress’s powers under
Article I, Section 8, of the United States Constitution. This argument has no merit. See
United States v. Singletary, 268 F.3d 196 (3d Cir. 2001); United States v. Gateward, 84
F.3d 670 (3d Cir. 1996); United States v. Rybar, 103 F.3d 273 (3d Cir. 1996).
III. CONCLUSION
In summary and for all the reasons explained above, we will affirm the
judgment of the District Court.
_________________________
TO THE CLERK:
Please file the foregoing opinion.
/s/ Richard L. Nygaard
Circuit Judge

-- 2 of 2 --