United States v. Charles Nathan Holland , 454 F. App'x 803 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-12101 ELEVENTH CIRCUIT
Non-Argument Calendar DECEMBER 29, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 5:96-cr-00208-SLB-PWG-2
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff–Appellee,
versus
CHARLES NATHAN HOLLAND,
llllllllllllllllllllllllllllllllllllllll Defendant–Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(December 29, 2011)
Before CARNES, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Charles Nathan Holland appeals the revocation of his supervised release for
two reasons. First, he contends that the district judge sua sponte should have
recused herself from deciding whether his supervised release should be revoked.
Second, he argues that the district court improperly sentenced him under a statute
not in effect at the time of his offense. For the reasons that follow, we affirm.
I.
Holland was charged in 1997 with murder in furtherance of a continuing
criminal enterprise and while engaged in a conspiracy to possess with intent to
distribute more than 1,000 kilograms of marijuana and more than 5 kilograms of
cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A), 848(e)(1)(A). In 1998, he
entered into a plea agreement under which he admitted to an intentional killing but
avoided the possibility of the death penalty. The district court sentenced Holland
to 180 months’ imprisonment followed by 5 years of supervised release.
In March 2011, after his supervised release began, Holland twice tested
positive for amphetamine and methamphetamine. He admitted to his probation
officer that he had been using methamphetamine, which violated the terms of his
supervised release. Based on the probation officer’s report, the district court held
a hearing on whether Holland’s supervised release should be revoked, at which
Holland stipulated that he had used amphetamine and methamphetamine.
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At Holland’s revocation hearing, the district judge recalled that she had
sentenced Holland in 1998. “It was a death penalty case where Mr. Holland was
facing the death penalty for his involvement in a murder. He pled guilty and got
15 years, but it was a very violent crime, and he participated in it.” Ultimately, the
court sentenced Holland to 24-months’ imprisonment and, “[i]n accordance with
18 U.S. Code, 3585(h) and Sentencing Commission policies 7B1.3(g)(2),” a new
term of 3 years’ supervised release.
II.
Ordinarily, we review for abuse of discretion a district judge’s decision not
to recuse herself under 28 U.S.C. § 455(a). United States v. Bailey, 175 F.3d 966,
968 (11th Cir. 1999). But, because Holland did not seek recusal in the
proceedings before the district court, we review his contention that the district
judge should have recused sua sponte only for plain error. United States v.
Berger, 375 F.3d 1223, 1227 (11th Cir. 2004). “To find reversible error under the
plain error standard, we must conclude that: (1) an error occurred, (2) the error
was plain, (3) the error affected substantial rights in that it was prejudicial and not
harmless, and (4) the error seriously affected the fairness, integrity, or public
reputation of a judicial proceeding.” United States v. Perez, 661 F.3d 568, 583
(11th Cir. 2011).
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A district judge has an affirmative obligation to recuse whenever proper
grounds exist. United States v. Kelly, 888 F.2d 732, 744 (11th Cir. 1989). When a
district judge’s decision not to recuse is challenged, we ask whether “an objective,
disinterested, lay observer fully informed of the facts underlying the grounds on
which recusal was sought would entertain a significant doubt about the judge’s
impartiality.” United States v. Patt, 337 F.3d 1317, 1321 (11th Cir. 2003)
(internal quotation marks omitted).
Here, there was no error, plain or otherwise. The district judge simply (and
accurately) stated the penalties outlined in the United States Code for the crime
with which Holland was originally indicted. Because she presided over the initial
criminal proceedings against Holland, the district judge would naturally have been
familiar with that law. True, Holland avoided the possibility of the death penalty
by his plea agreement, but that renders the district judge’s statement that he was
charged with a capital offense no less true. Thus, the sole basis for Holland’s
argument that the judge who sentenced him should have recused herself is that she
should not have said aloud what she was duty-bound to know. But no reasonable
observer would question the district judge’s impartiality because of her knowledge
of the law that applied in the original case or her accurate statement of it at the
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revocation hearing. Thus, the district judge did not err in presiding over Holland’s
revocation proceedings.
III.
Holland also did not argue before the district court that the application of 18
U.S.C. § 3583(h) in imposing his sentence after revocation was erroneous. As
stated previously, we will not reverse based upon an error that is asserted for the
first time on appeal unless the error was plain. Berger, 375 F.3d at 1227.
As the government concedes, § 3583(h) did not exist at the time of
Holland’s offense conduct and the Supreme Court has expressly held that it is not
retroactively applicable. Johnson v. United States, 529 U.S. 694, 702 (2000).
Thus, the district court plainly erred in basing its sentencing decision on
§ 3583(h).
Plain error alone, however, does not dictate reversal; Holland must also
demonstrate that the error affected his substantial rights. That means, as a general
rule, that “[i]t must have affected the outcome of the district court proceedings.”
United States v. Olano, 507 U.S. 725, 734 (1993). A defendant can not establish
that an error affected his substantial rights where its effect is indeterminate or
uncertain. United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005).
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Holland has not carried his burden to demonstrate that the district court’s
erroneous reliance upon 18 U.S.C. § 3583(h) in fashioning his sentence was
prejudicial because he cannot show any probability that the district court would
have imposed a different sentence. See United States v. Dacus, 408 F.3d 686, 689
(11th Cir.2005) (holding that plain error review usually requires us to conclude
that there is a reasonable probability of a different result). In the same case in
which the Supreme Court held that § 3583(h) was not retroactively applicable, it
also held that the provision § 3583(h) replaced, § 3583(e)(3) (1991), gave district
courts the authority upon revocation of a defendant’s supervised release to impose
re-imprisonment followed by a further period of supervised release. United States
v. Gresham, 325 F.3d 1262, 1265 (11th Cir. 2003) (citing Johnson, 529 U.S. at
713). In other words, the provision that Holland contends the district court should
have applied permitted the district court to impose the same sentence it actually
imposed. And he has mounted no argument that it would not have exercised that
identical authority in the same way if it had relied upon the correct statutory
provision. The error was harmless.
AFFIRMED.
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