United States v. Holmes , 395 F. App'x 24 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4663
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
PAUL ANTHONY HOLMES, a/k/a Pauly,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:08-cr-00604-CMC-1)
Submitted: August 5, 2010 Decided: September 9, 2010
Before SHEDD, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Marcia G. Shein, LAW OFFICES OF MARCIA G. SHEIN, P.C., Decatur,
Georgia, for Appellant. Kevin F. McDonald, Acting United States
Attorney, Jeffrey Mikell Johnson, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Paul Anthony Holmes appeals his sentence following a
guilty plea to conspiracy to distribute one kilogram or more of
heroin, in violation of 21 U.S.C. § 846 (2006). Holmes
challenges the district court’s decision to give him a
four-level role adjustment pursuant to USSG § 3B1.1(a), and a
two-level obstruction of justice increase pursuant to USSG
§ 3C1.1.
I. Role in the Offense
This court reviews sentencing adjustments based on a
defendant’s role in the offense for clear error. United
States v. Sayles, 296 F.3d 219, 224 (2002). We may affirm a
sentence enhancement for any reason appearing in the record.
United States v. Garnett, 243 F.3d 824, 830 (4th Cir. 2001).
A defendant’s offense level is to be increased by four
levels “[i]f the defendant was an organizer or leader of a
criminal activity that involved five or more participants.”
USSG § 3B1.1(a). A “participant” is someone who can be held
“criminally responsible” for the commission of the offense. See
USSG § 3B1.1 cmt. 4. The following factors should be considered
in determining whether a role adjustment is warranted:
(1) the exercise of decision making authority, (2) the
nature of participation in the commission of the
offense, (3) the recruitment of accomplices, (4) the
2
claimed right to a larger share of the fruits of the
crime, (5) the degree of participation in planning or
organizing the offense, (6) the nature and scope of
the illegal activity, and (7) the degree of control
and authority exercised over others.
See United States v. Kellam, 568 F.3d 125, 148 (4th Cir. 2009)
(citing USSG § 3B1.1 cmt. 4).
However, a defendant need only exercise control over
one other participant in order to be deemed a leader or
organizer. See USSG § 3B1.1 cmt. 2. This is “not a
particularly onerous showing,” requiring “only a conclusion that
[the defendant] supervised at least one . . . participant,” and
it “does not require the court to identify specific examples.”
See United States v. Hamilton, 587 F.3d 1199, 1222 (10th Cir.
2009) (citations omitted). Moreover, once the court has
determined that the defendant exercised some control over at
least one participant, it need look no further into whether or
not the defendant exercised control over others. Id. at 1223.
Taking the record as a whole, there is ample evidence
to support the district court’s determination that Holmes was a
leader or organizer of a criminal enterprise consisting of five
or more people. First, the Government’s unopposed summary of
the evidence at Holmes’ plea colloquy establishes that he was a
part of a criminal conspiracy comprised of at least five
individuals, and that his co-defendant, Shaheed Chaplin, was his
“right hand person.” While Holmes’s acquiescence to these facts
3
is arguably enough to establish not only the minimum threshold
size of his organization, but also that he exercised control
over Chaplin, thereby ending this Court’s inquiry, the testimony
offered at sentencing largely substantiates the Government’s
claims. Cf. United States v. Reid, 523 F.3d 310, 317 (4th Cir.
2008) (“buy-sell transaction[s]” and “continuing relationships,”
coupled with a large quantity of drugs, support an inference
that the parties were co-conspirators) (citations omitted).
Onza Lynch, a cooperating co-conspirator, whom the
district court credited, made clear that there were at least
eight individuals working for Holmes. Moreover, the number of
co-conspirators included in the organization would no doubt
increase dramatically if the court were to include the various
other lower-level dealers that the testimony established Holmes
supplied. Cf. United States v. Fells, 920 F.2d 1179, 1182-83
(4th Cir. 1990) (counting lower-level drug dealers, but not end
users, in computation of organizational size). Accordingly, the
district court did not clearly err with regard to its
calculations of the size of Holmes’ criminal enterprise.
As for the level of control Holmes had over his
cohorts, the testimony elicited at sentencing, as credited by
the district court, clearly established that Holmes was a leader
and/or organizer of his group. In addition to being the primary
supplier to several street level dealers and personally
4
trafficking large quantities of drugs, Holmes retained decision-
making authority over his drugs and the people working under
him. He set his own prices and negotiated arrangements with
lower-level dealers as needed. Moreover, it is clear that
Holmes possessed the initial knowledge necessary to package and
distribute the drugs, which he passed on to his co-conspirators.
Holmes also decided who could work for him. He
screened new dealers to determine if they were suitable
candidates, and “laid down the law” to recruits as to how
financial obligations were to be handled. He provided other
dealers with samples of his wares, made initial arrangements,
and then passed them off to his underlings for day-to-day
servicing, no doubt in an effort to lower his profile and/or
reduce his criminal exposure.
Holmes also clearly claimed a right to a larger share
of the proceeds of his drug sales than his co-conspirators. The
testimony of multiple witnesses indicated that Holmes would set
his price and then “front” drugs to his dealers, essentially on
credit, to sell for him; the dealers would make a profit only if
they were able to sell the drugs for more than Holmes claimed as
his own share. Invariably, the testimony indicated that Holmes
made more off each transaction than his lower-level dealers did,
and more importantly, it showed that Holmes took priority when
it was time to “settle up.”
5
Holmes argues that the district court erred by giving
him a four-level role adjustment because, he contends, the
evidence does not establish that he is anything more than a mere
seller of drugs. Holmes argues that because his relationships
with Chaplin, Lynch, and the various other downstream dealers he
supplied were informal and non-exclusive, and because he sold
drugs on a consignment basis, he is somehow less of an organizer
or leader. Holmes has failed to cite to any case or authority
that would tend to indicate that either of these factors has any
direct bearing on whether or not he is a leader or organizer of
the conspiracy to which he plead guilty.
This court has never held that a criminal enterprise
must have a rigid structure or be the only criminal enterprise
its members are a part of before conspiratorial criminal
liability can attach. Cf. United States v. Burgos, 94 F.3d 849,
858 (4th Cir. 1996) (en banc) ("while many conspiracies are
executed with precision, the fact that a conspiracy is
loosely-knit, haphazard, or ill-conceived does not render it any
less a conspiracy — or any less unlawful"). Thus, it would seem
counterintuitive to allow an organizer of such a conspiracy to
escape liability simply by virtue of the “loose-knit” or
“haphazard” nature of his plans. As stated above, under
§ 3B1.1, the Government need only establish that a defendant
6
exercised control over one of his co-conspirators, not that he
exercised rigid or exclusive control over any of them.
Moreover, the selling of drugs on consignment does not
create a wall between a seller and his downstream
co-conspirators in the way that Holmes seems to contend. A
dealer who consigns or “fronts” drugs to a lower-level dealer
with the expectation that the drugs will be sold and he will be
repaid from the proceeds of those retail sales “overstep[s] a
mere seller’s role,” and assumes a control position. See United
States v. Pena, 67 F.3d 153, 156 (8th Cir. 1995); United
States v. Atkinson, 85 F.3d 376, 378 (8th Cir. 1996).
Thus, Holmes cannot hide behind the structure of his
arrangements with his underlings to insulate himself from
leadership liability in this conspiracy. Contrary to what
Holmes argues, the nature of his arrangements only supports the
conclusion that he retained control, not that he relinquished
it. Accordingly, we find that the district court did not
clearly err in giving Holmes a four-level adjustment for his
role in the conspiracy. *
*
Holmes has also argued that the district court erred by
not explicitly considering a lesser enhancement under USSG
§§ 3B1.1(b) or (c); however, Holmes has failed to cite to any
authority to support this argument and we are not aware of any.
Under these circumstances, we think a lesser enhancement under
either subsection (b) or (c) would have been inappropriate.
7
II. Obstruction of Justice
Holmes has also challenged the district court’s
two-level enhancement for obstruction of justice under § 3C1.1.
The enhancement was based on the court’s findings that while
Holmes and a co-conspirator, Lynch, were incarcerated at the
same facility, Holmes threatened to expose Lynch as a government
snitch if Lynch testified against him, and that Holmes had
arranged for a $25,000 bounty for Lynch’s murder if Lynch
continued to cooperate with the authorities. Holmes maintains
the court failed to give him adequate notice that it would
consider the enhancement, and that the uncorroborated testimony
of Lynch was an insufficient basis to find that he qualified for
the enhancement. Both arguments lack merit.
Holmes’ arguments concerning the sufficiency of the
evidence are reviewed for clear error. United States v. Hughes,
401 F.3d 540, 560 (4th Cir. 2005). We believe there is ample
evidence in the record to support Holmes’ two-level enhancement
for threatening Lynch.
The main thrust of Holmes’ argument is to contest
Lynch’s credibility and to insist that he not be believed in the
absence of corroborative evidence. However, there is, of
course, no requirement that the Government provide corroboration
for Lynch’s testimony, and this Court will not substitute its
8
credibility determinations for that of the district court. Cf.
United States v. Murray, 65 F.3d 1161, 1165 (4th Cir. 1995).
Even without Lynch’s testimony that Holmes put a
$25,000 bounty on his head, Holmes’ own words more than
adequately establish that he threatened Lynch with the intent to
intimidate him or prevent him from testifying. In a letter to
the district court, Holmes admitted calling Lynch a “snitch” and
a “rat,” and threatening to expose Lynch as such in the prison
yard. This alone is an adequate ground to support an
obstruction of justice enhancement. See United States v.
Jackson, 974 F.2d 104, 105-106 (9th Cir. 1992) (disseminating
information that a cooperating witness is a “snitch” and a “rat”
to others can “potentially chill [the witness’] willingness to
testify”); United States v. Hurst, 228 F.3d 751, 761-62 (6th
Cir. 2000) (inciting other inmates to harm cooperating witness
warranted obstruction enhancement). Accordingly, the district
court did not clearly err by finding that Holmes obstructed
justice.
In support of his alternate argument, that the
district court erred by failing to give him reasonable notice
that it would consider imposing an obstruction enhancement,
Holmes cites to Federal Rule of Criminal Procedure 32(h), which
states that:
9
Before the court may depart from the applicable
sentencing range on a ground not identified for
departure either in the presentence report or in a
party’s prehearing submission, the court must give the
parties reasonable notice that it is contemplating
such a departure. The notice must specify any ground
on which the court is contemplating a departure.
The Government counters by arguing that Rule 32(h)
applies only to “departures,” and that an adjustment under
§ 3C1.1 is not a “departure,” but instead an inherent part of a
defendant’s guideline sentence, and that no notice was required.
We need not address the Government’s claim at this time, as
Holmes has failed to show a reversible error in any event.
Because Holmes failed to object to the district
court’s allegedly inadequate notice below, this Court must
review for plain error. See United States v. McClung, 483 F.3d
273, 276 (4th Cir. 2007). To establish plain error, Holmes must
show that an error (1) was made, (2) is plain (i.e., clear or
obvious), and (3) affects his substantial rights. United
States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009).
Even if Holmes makes this three-part showing, this Court may
exercise its discretion to correct the error only if it
“seriously affects the fairness, integrity or public reputation
of judicial proceedings.” Id. at 343 (internal quotation marks
omitted).
Even assuming that the district court was required to
provide notice to Holmes and that its notice was inadequate,
10
Holmes has still not shown that the court’s alleged failing
affected his substantial rights. Holmes does not substantively
address the fact that his own letter sealed his fate just as
much as the testimony of Lynch did, except to say in completely
conclusory fashion that had he received notice, “it very likely
would have affected the outcome of the sentencing proceeding.”
At no point does Holmes ever explain how receiving notice,
assuming he was entitled to receive it, would have changed the
fact that he admitted to behavior justifying the enhancement.
Therefore, Holmes has failed to carry his burden of establishing
that the district court committed plain error by failing to
notify him that it might enhance his sentence for obstructing
justice.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
11