United States v. Holmes , 380 F. App'x 367 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4869
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THESSALONIAS ANRE HOLMES,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(1:07-cr-00317-MBS-1)
Submitted: May 5, 2010 Decided: May 28, 2010
Before MOTZ, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John C. Neiman, Jr., BRADLEY ARANT BOULT CUMMINGS LLP,
Birmingham, Alabama, for Appellant. John David Rowell,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thessalonias A. Holmes appeals his conviction and
sentence of 121 months, imposed after he pled guilty to
possession with intent to distribute cocaine, in violation of 21
U.S.C. § 841(a)(1) (2006). Appellate counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967),
questioning whether the United States breached its plea
agreement in failing to move to reduce Holmes’s sentence under
Rule 35(b) of the Federal Rules of Criminal Procedure or 18
U.S.C. § 3553(e) (2006), but concluding there are no meritorious
grounds for appeal. Holmes filed a pro se supplemental brief,
raising the same issue. The Government elected not to file a
brief. We previously placed this case in abeyance pending the
outcome of United States v. Peake, No. 08-5132. As our mandate
has now issued in Peake, this case has been removed from
abeyance, and is ripe for review.
When a claim of breach of a plea agreement has been
preserved, we review the district court’s factual findings for
clear error and its “application of principles of contract
interpretation de novo.” United States v. Bowe, 257 F.3d 336,
342 (4th Cir. 2001). However, because Holmes did not claim in
the district court that the Government had breached the plea
agreement, appellate review in this case is for plain error.
Puckett v. United States, 129 S. Ct. 1423, 1428 (2009).
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Plea agreements are grounded in contract law, and both
parties should receive the benefit of their bargain. Bowe, 257
F.3d at 345. The government breaches the plea agreement when a
promise it made to induce the plea goes unfulfilled.
Santobello v. New York, 404 U.S. 257, 262 (1971). Because of
constitutional and supervisory concerns, the government is held
to a greater degree of responsibility for imprecision or
ambiguities in plea agreements. United States v. Harvey, 791
F.2d 294, 300-01 (4th Cir. 1986). Where an agreement is
ambiguous in its terms, the terms must be construed against the
government. Id. at 300, 303. However, “[w]hile the
[g]overnment must be held to the promises it made, it will not
be bound to those it did not make.” United States v. Fentress,
792 F.2d 461, 464-65 (4th Cir. 1986). After reviewing the
record, we find that the Government’s failure to move for a
downward departure or reduction in sentence was not in breach of
the plea agreement. Accordingly, this issue is without merit.
In reviewing the remainder of the record, we note that
Holmes’s sentence appears procedurally unreasonable, as the
district court failed to provide any explanation for imposing
the sentence it did. We recently held, in United States v.
Carter, 564 F.3d 325 (4th Cir. 2009), that a district court must
conduct an “individualized assessment” of the particular facts
of every sentence, on the record, whether the court imposes a
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sentence above, below, or within the guidelines range. Id. at
330. Here, the district court summarized its reasons for
Holmes’s sentence as follows:
Mr. Holmes, having calculated and considered the
advisory sentencing guidelines and having also
considered the relevant statutory sentencing factors
that are contained in Title 18, United States Code
Section 3553(a), it is the judgment of the court that
the Defendant, Thessalonias Anre Holmes, is hereby
committed to the custody of the Bureau of Prisons to
be imprisoned for a term of 121 months.
The findings of fact of the presentence report are
adopted as the reasons for the sentence and they are
incorporated by reference.
Except for noting that its sentence was based on the
findings of fact in the presentence report, the district court
failed to provide any reasons why a guidelines sentence was
appropriate for Holmes or why it chose to sentence him at the
low end of the advisory guideline range. Therefore, it is clear
that the district court failed to provide an individualized
assessment as required by Carter.
However, Holmes did not object to the adequacy of the
district court’s explanation in the district court. Where a
defendant does not object to a district court’s failure to
explain an imposed sentence, or otherwise preserve the issue for
review by requesting a sentence shorter than the one he
received, our review is for plain error. See United States v.
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Lynn, 592 F.3d 572, 578-79 (4th Cir. 2010). Under plain error
review,
[A]n appellate court may correct an error not brought
to the attention of the trial court if (1) there is an
error (2) that is plain and (3) that affects
substantial rights. If all three of these conditions
are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if
(4) the error seriously affects the fairness,
integrity, or public reputation of judicial
proceedings.
United States v. Carr, 303 F.3d 539, 543 (4th Cir. 2002)
(internal quotation marks, citations, and alterations omitted).
In the sentencing context, an error affects substantial rights
if the defendant can show that the sentence imposed “was longer
than that to which he would otherwise be subject.” United
States v. Washington, 404 F.3d 834, 849 (4th Cir. 2005)
(internal quotation marks and citation omitted). After
reviewing the proceedings, we conclude any error the district
court may have committed in failing to adequately explain
Holmes’s sentence did not affect Holmes’s substantial rights,
and is therefore not cognizable on appeal.
We have reviewed the entire record in accordance with
Anders and have not identified any meritorious issues for
appeal. Accordingly, we affirm the judgment of the district
court. This court requires counsel to inform Holmes, in
writing, of his right to petition the Supreme Court of the
United States for further review. If the client requests such
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petition be filed, but counsel believes that doing so would be
frivolous, counsel may move this court to withdraw from
representation. Counsel’s motion must state that a copy of the
motion was served on the client. 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
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