United States v. Holman , 354 F. App'x 791 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4830
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KELVIN JEROD HOLMAN, a/k/a J-Five,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. Margaret B. Seymour, District
Judge. (5:04-cr-00964-MBS-2)
Submitted: October 22, 2009 Decided: November 13, 2009
Before MICHAEL, MOTZ, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Russell W. Mace, III, THE MACE FIRM, Myrtle Beach, South
Carolina, for Appellant. W. Walter Wilkins, United States
Attorney, Stacey D. Haynes, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kelvin Jerod Holman timely appeals from the 360-month
sentence imposed after pleading guilty to one count of
conspiracy to distribute five kilograms or more of cocaine and
fifty grams or more of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), 846 (2006). On appeal, Holman argues
that the district court erred in applying the two-level sentence
enhancement, pursuant to U.S. Sentencing Guidelines Manual
(“USSG”) § 3B1.1(c) (2007), and that his sentence is
unreasonable. We affirm Holman’s conviction, but vacate his
sentence and remand for resentencing.
Holman first asserts that the district court erred in
applying the two-level sentence enhancement, pursuant to USSG
§ 3B1.1(c), for his role in the conspiracy. Holman urges us to
review the district court’s imposition of the sentence
enhancement for clear error. Generally, “[a] district court’s
findings regarding sentence enhancement are factual in nature
and are reviewed only for clear error.” United States v.
Carter, 300 F.3d 415, 426 (4th Cir. 2002). However, where the
defendant failed to object to the enhancement in the district
court, this court reviews for plain error. United States v.
Wells, 163 F.3d 889, 900 (4th Cir. 1998). Upon review of the
sentencing hearing transcript, it appears that Holman did not
object to the USSG § 3B1.1(c) sentence enhancement; his only
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objections were to the amount of drugs attributed to him in the
Presentence Investigation Report (“PSR”). Thus, we review for
plain error.
To demonstrate plain error, a defendant must show
that: (1) there was an error; (2) the error was plain; and
(3) the error affected his “substantial rights.” United
States v. Olano, 507 U.S. 725, 732 (1993). We are not required
to correct a plain error unless “a miscarriage of justice would
otherwise result,” meaning that “the error seriously affects the
fairness, integrity, or public reputation of judicial
proceedings.” Id. at 736 (internal quotation marks, alteration,
and citations omitted).
Pursuant to USSG § 3B1.1(c), a two-level increase to
the defendant’s base offense level is warranted “[i]f the
defendant was an organizer, leader, manager, or supervisor” in
the charged offense and the offense involved less than five
participants. The adjustment applies if the defendant
organized, led, managed, or supervised one or more participants.
USSG § 3B1.1, cmt. n.2. The Guidelines identify the following
factors courts should use to distinguish between leaders,
organizers, managers, supervisors and other participants:
the exercise of decision making authority, the nature
of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense,
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the nature and scope of the illegal activity, and the
degree of control and authority exercised over others.
USSG § 3B1.1, cmt. n.4.
Holman contends that the district court erroneously
relied on disputed facts in the PSR in assessing the
enhancement. Federal Rule of Criminal Procedure 32(i)(3)(B)
requires the district court to “make a finding with respect to
each objection a defendant raises to facts contained in a
presentence report before it may rely on the disputed fact in
sentencing.” United States v. Morgan, 942 F.2d 243, 245 (4th
Cir. 1991). However, in doing so, the district court is
permitted to “expressly adopt the recommended findings contained
in the presentence report.” Id. When the district court takes
this approach, “it must make clear on the record that it has
made an independent finding and that its finding coincides with
the recommended finding in the presentence report.” Id.Here, the district court stated that “we have an
adjustment for role, which is a plus two” and later adopted the
findings of fact in the PSR as the reasons for the sentence. In
the PSR, the probation officer relied on paragraphs 17, 19, and
54 in applying the USSG § 3B1.1(c) enhancement. While there is
no mention of an objection to paragraph 54, Holman asserts that
he objected to paragraphs 17 and 19. Our review of the
sentencing transcript reveals that Holman only objected to
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paragraph 19, and only to the extent that he disagreed with the
drug amounts attributed to him. The district court resolved
that objection, stating that “the court will not use . . . the
testimony . . . with regard to counting the drug weights.”
Because Holman failed to object to any information in the PSR
with respect to the sentence enhancement, the district court
properly adopted the undisputed findings in the PSR, as
permitted by Morgan, and could rely on those findings in
assessing the enhancement.
Holman, however, relying on our decision in United
States v. Chambers, 985 F.2d 1263, 1269 (4th Cir. 1993), also
contends that the district court failed to apply the factors in
USSG § 3B1.1, cmt. n.4 or provide specific reasons for applying
the enhancement. In Chambers, we vacated the district court’s
sentence and remanded for further proceedings because, “without
specific factual findings showing that the district court
evaluated the defendant’s role in the offense in light of the
factors in [USSG § 3B1.1] application note 3[ 1 ], we cannot
conduct meaningful appellate review of this issue.” Id. We
instructed the district court to apply the above factors to
determine whether the defendant’s role in the conspiracy
1
Now application note 4.
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warranted a sentence enhancement, and if so, note which factors
justified the decision. Id.
We find that, while the district court properly
adopted the findings of fact in the PSR, it erred by failing to
specifically apply the USSG § 3B1.1, cmt. n.4 factors to those
findings to determine whether Holman’s role warranted the two-
level enhancement. Because the sentence imposed was greater
than that to which Holman would have been subject absent the
error, we further conclude that the error affected Holman’s
substantial rights. See United States v. Hughes, 401 F.3d 540,
548 (4th Cir. 2005). Therefore, we vacate Holman’s sentence and
remand for the district court to consider the above factors to
determine whether the sentence enhancement is justified. 2
Accordingly, we affirm Holman’s conviction, but vacate
his sentence and remand for resentencing. We dispense with oral
argument because the facts and legal conclusions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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Because we conclude that the district court erred in
failing to address the USSG § 3B1.1, cmt. n.4 factors and remand
for further proceedings on that issue, we need not consider
Holman’s alternative challenge to the procedural and substantive
reasonableness of his sentence.
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