United States of America, Plaintiff-appellee, v. John Bert Fisher, Defendant-appellant, 914 F.2d 1492 (4th Cir. 1990)

John Bert Fisher appeals from the sentence imposed under the Sentencing Guidelines for his conviction pursuant to his guilty plea on one count of distribution of morphine, in violation of 18 U.S.C. §§ 841(a) and 2. Finding no error, we affirm.

* On June 2, 1989, Fisher was arrested and later charged in a single count information with the distribution of morphine. This offense occurred while Fisher was serving a ten-year state sentence at a work release center operated by the West Virginia Department of Corrections. From the time of his arrest for the federal drug law violation through September 25, 1989, the date of sentencing by the district court, Fisher remained in continuous federal custody.

The presentence report determined that Fisher's Guidelines range was 210-262 months,¹  and neither party to this appeal disputes this figure. Fisher, however, argued that he should receive a downward departure for a variety of reasons: he was never guilty of actual violence with regard to his prior crimes; he had a number of ill relatives for whom he cared; he was 60 years old and had his own health problems; and he procured the morphine for a cancer-stricken friend. The court agreed that Fisher's age constituted grounds for a downward departure²  and initially announced a sentence of 150 months imprisonment, to be served consecutively to the unexpired ten-year state sentence which Fisher was serving when he was arrested on the federal charge.

After announcing this sentence from the bench, the district court judge inquired of counsel regarding Fisher's current custodial status. Defense counsel responded that Fisher had been in federal custody since his arrest some months earlier, and, further, that the state Department of Corrections had done nothing to regain custody. The Assistant United States Attorney added that the court was correct in its belief that " [n]obody knows what the state is going to do...." The district judge then responded that "I suspect they [the West Virginia Department of Corrections] will do nothing [about regaining custody]." Concerned that the state authorities would fail to require Fisher to serve the remainder of his state sentence, the court decreased the extent of the departure and changed the sentence to one of 160 months; this sentence was also to be served consecutively to the state sentence. Fisher appeals.

II

Fisher's sole contention on appeal is that the decrease in the extent of the originally announced departure was unjustified under the Guidelines because it was based on speculation. Specifically, Fisher argues that, once the decision to depart has been made and a definite sentence is announced from the bench, the court may not "increase" this sentence without more reliable evidence of what the state authorities might or might not do with regard to the unfinished portion of the state sentence. We are of the opinion, however, that the sentencing court committed no error in considering the state's probable intention and in changing the sentence as it did.

Fisher concedes that the state's intention was a relevant factor which could have been properly considered.³  His objection goes only to the reliability of the evidence of this practice. As a factual question, we review the issue under a "clearly erroneous" standard. United States v. Vinson, 886 F.2d 740, 742 (4th Cir. 1989), cert. denied, 110 S. Ct. 878 (1990).

The Commentary to U.S.S.G. Sec. 6A1.3 states that a sentencing court may consider "any information ... so long as it has 'sufficient indicia of reliability to support its probable accuracy.' " (Citations omitted.) Here the sentencing court was presented with the undisputed facts that a state inmate was arrested by federal authorities and that no effort was made by the state authorities over an almost four-month period to insure his return.⁴  Moreover, Fisher failed to voice any protest whatsoever during the sentencing hearing. In any event, the essence of Fisher's complaint is that he merely disagrees with the inference drawn by the court on the basis of the information before the court. This does not rise to the level of clear error, and we affirm.

AFFIRMED