United States of America v. Russell Floyd Freshour

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4681
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RUSSELL FLOYD FRESHOUR,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:05-cr-00235-LHT-DLH-1)
Submitted: September 29, 2009 Decided: October 15, 2009
Before NIEMEYER, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David G. Belser, BELSER & PARKE, Asheville, North Carolina, for
Appellant. Gretchen C. F. Shappert, United States Attorney,
Charlotte, North Carolina, Amy E. Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Russell Floyd Freshour was found guilty of
manufacturing and possessing with intent to distribute fifty
grams or more of methamphetamine and was sentenced to 210 months
of imprisonment in 2006. This court affirmed Freshour’s
conviction on appeal but remanded for resentencing. See United
States v. Freshour, 235 F. App’x 193 (4th Cir. 2007). On
remand, the court found Freshour responsible for forty grams of
actual methamphetamine, recalculated his Sentencing Guidelines
range as 168-210 months of imprisonment, and imposed a within-
Guidelines range sentence of 180 months.
Freshour again appeals, raising the following issues:
(1) whether evidence was sufficient to establish by a
preponderance of the evidence that he manufactured or possessed
with intent to distribute at least forty grams of actual
methamphetamine for purposes of sentencing, and (2) whether the
district court violated his Sixth Amendment rights by increasing
his sentence by facts and an enhancement found only by the
judge, which were not pled in the indictment or found by the
jury beyond a reasonable doubt. For the reasons that follow, we
affirm.
First, we find no clear error in the district court’s
conclusion that Freshour was responsible for forty grams of
actual methamphetamine. See United States v. McDonald, 61 F.3d
2

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248, 255 (4th Cir. 1995) (providing review standard for quantity
of drugs attributable to a defendant for sentencing). The
record reveals Freshour’s extensive manufacturing and
distributing of the drug over an extended period of time, which
supports the court’s factual findings on the matter.
Second, the district court’s calculation of Freshour’s
advisory sentencing range and imposition of a sentence within
the statutory maximum does not offend the Sixth Amendment, as he
was sentenced below the statutory maximum for the offense with
no drug weight. See 21 U.S.C.A. § 841(b)(1)(C) (West Supp.
2009) (twenty-year maximum punishment for an unspecified amount
of methamphetamine); Rita v. United States, 551 U.S. 338, 347
(2007) (holding that “a court of appeals may apply a presumption
of reasonableness to a district court sentence that reflects a
proper application of the Sentencing Guidelines”); United States
v. Booker, 543 U.S. 220, 244-45 (2005) (noting that Sixth
Amendment error occurs where the district court imposes a
sentence greater than the maximum permitted based on facts found
by a jury or admitted by the defendant).
Accordingly, both of Freshour’s claims fail on appeal
and we affirm his sentence. We dispense with oral argument as
the facts and legal contentions are adequately presented in the
3

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4
materials before the court and argument would not aid the
decisional process.
AFFIRMED

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