United States v. Holman , 407 F. App'x 755 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4540
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: December 6, 2010 Decided: January 12, 2011
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Russell W. Mace, III, THE MACE FIRM, Myrtle Beach, South
Carolina, for Appellant. William N. Nettles, 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Unpublished opinions are not binding precedent in this circuit.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 appeals the 360-month sentence
imposed after we vacated his original sentence and remanded to
the district court with instructions to apply the factors
outlined in U.S. Sentencing Guidelines Manual § 3B1.1 cmt. n.4
(2007), to determine whether his role in the offense warranted
the two-level enhancement to his offense level. United
States v. Holman, 354 F. App’x 791 (4th Cir. 2009)
(unpublished). On appeal, Holman contends that the district
court plainly erred by denying him the opportunity for
allocution at the resentencing hearing. Finding no reversible
error, we affirm.
Because Holman did not object to the denial of
allocution in the district court, we review for plain error.
United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007);
see United States v. Olano, 507 U.S. 725, 732 (1993) (detailing
plain error standard). “Before imposing sentence, the
[district] court must . . . address the defendant personally in
order to permit the defendant to speak or present any
information to mitigate the sentence.” Fed. R. Crim. P.
32(i)(4)(A)(ii). Even when the defendant is permitted to
allocute at his original sentencing hearing, “he ha[s] a renewed
right to allocute at resentencing.” Muhammad, 478 F.3d at 250.
Here, while both counsel had ample opportunity to present
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argument, the district court did not give Holman the opportunity
to allocute during the resentencing hearing; thus, the court
committed plain error. See id. at 249-50.
Our finding of plain error does not, however, end the
inquiry; we must next assess whether the error affected Holman’s
substantial rights. Olano, 507 U.S. at 732. “[A] defendant
[is] not prejudiced by the denial of allocution when there was
no possibility that he could have received a shorter sentence.”
Muhammad, 478 F.3d at 249. If, however, we can identify a
ground on which a lower sentence might have been based, we may
notice the error. See United States v. Cole, 27 F.3d 996, 999
(4th Cir. 1994) (“When . . . the possibility remains that an
exercise of the right of allocution could have led to a sentence
less than that received, . . . fairness and integrity of the
court proceedings would be brought into serious disrepute were
we to allow the sentence to stand.”).
Upon review, we conclude that Holman has failed to
demonstrate that he was prejudiced by the district court’s
failure to permit him the opportunity to allocute at
resentencing. * Accordingly, we affirm the district court’s
*
To the extent Holman asserts that he should have been
allowed to present to the district court evidence of mitigation
unrelated to the role enhancement, the mandate rule precluded
the district court from considering such evidence. See United
States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993).
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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
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