United States v. Carlous Horton , 756 F.3d 569 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-3627
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Carlous S. Horton
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 12-3628
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Christopher M. Holmes
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Western District of Missouri - Springfield
____________
Submitted: November 21, 2013
Filed: March 24, 2014
____________
Before BENTON, BEAM, and SHEPHERD, Circuit Judges.
____________
SHEPHERD, Circuit Judge.
A jury convicted Carlous S. Horton and Christopher M. Holmes of multiple
crimes stemming from their involvement in a cocaine-distribution ring. They each
received a life sentence and each appealed, raising numerous procedural, evidentiary,
and sentencing errors. We reject their arguments and affirm their convictions and
sentences.1
I.
The investigation into Carlous Horton began when Horton was stopped by the
Oklahoma Highway Patrol and found to be transporting a pound of cocaine. After the
stop, DEA agents contacted Horton with the hope that Horton could assist the
Government in its investigation of drug activities in the Springfield-Branson, Missouri
area. Horton refused to cooperate, but, because of the stop, the DEA began to take
interest in Horton’s activities. As time progressed, the DEA continued to gather
intelligence on Horton. Eventually, it learned of a potential informant who claimed
to have been buying cocaine from Horton.
Using its newly found informant, the DEA arranged several controlled cocaine
buys. While monitoring these controlled cocaine purchases, the DEA discovered that
Horton had a partner, Christopher Holmes. The DEA’s confidential informant
arranged purchases from both Horton and Holmes. The DEA used the information
1
The late Honorable Richard E. Dorr, United States District Judge for the
Western District of Missouri.
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from these controlled buys to obtain wiretaps on phone numbers associated with
Horton’s cocaine activities. Over the next year, the DEA gathered extensive evidence
that Horton and Holmes were heavily involved in cocaine distribution. The DEA
recorded thousands of drug-related phone calls and text messages. Finally, on March
11, 2011, the DEA executed search warrants on three residences in Southwestern
Missouri known to be connected with Horton and Holmes’s drug enterprise. In its
search of the residences, the DEA recovered large amounts of cocaine and several
guns.
Horton and Holmes were charged, along with several other defendants, in a 70-
count indictment. Horton was named in 59 of the counts; Holmes was named in 3
counts. Though many of their co-conspirators pled guilty, Horton and Holmes elected
to continue to trial. After a six-day trial, a jury found Horton guilty of: (1) conspiracy
to distribute 5 kilograms or more of cocaine, to manufacture 280 grams or more of
cocaine base, and to distribute 280 grams or more of cocaine base; (2) distribution of
cocaine; (3) possession of cocaine with the intent to manufacture; (4) possession of
a firearm by a convicted felon; (5) money laundering; and (6) wire fraud. Holmes was
found guilty of: (1) conspiracy to distribute 5 kilograms or more of cocaine, to
manufacture 280 grams or more of cocaine base, and to distribute 280 grams or more
of cocaine base; (2) possession of cocaine with the intent to distribute; and (3)
possession of a firearm by a convicted felon.
Because of their prior criminal records, 21 U.S.C. § 841(b)(1)(A) mandated life
sentences, and Horton and Holmes were each sentenced to life in prison. Horton and
Holmes timely appealed their convictions and sentences. We consider Horton and
Holmes’s joint arguments2 in Part II, collectively referring to them as the Appellants,
and we consider Holmes’s separate arguments in Part III.
2
Christopher Holmes has elected to adopt by reference the issues raised in
Carlous Horton’s opening brief. See Fed. R. App. P. 28(i).
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II.
The Appellants raise four arguments on appeal: (1) the Government violated
their Fourth Amendment rights by engaging in extensive pre-arrest surveillance; (2)
the Government violated their due process rights by failing to disclose material,
exculpatory evidence, in violation of Brady,3 and by engaging in outrageous conduct
throughout Horton and Holmes’s investigation and prosecution; (3) the district court
erred by not holding a Remmer4 hearing to investigate a potential juror problem that
arose during trial; and (4) the Western District of Missouri’s juror selection plan
violated their Sixth Amendment rights.5
A.
The Appellants argue that evidence used by the Government at trial should have
been suppressed because it was obtained in violation of their Fourth Amendment
rights. The Appellants argue that the Government should have arrested Horton as
soon as it had sufficient evidence to charge him, and the Government’s recording of
their conversations with the Government’s confidential informant violated their
3
Brady v. Maryland, 373 U.S. 83 (1963).
4
Remmer v. United States, 347 U.S. 227 (1954).
5
The Appellants also allege that the district court impermissibly excluded them
from the courtroom on the first day of the trial during the afternoon voir dire
examination. The minute sheet filed on that day reflects that each defendant was
present at trial with counsel in the morning and afternoon sessions. See Minute Sheet
at 1, No. 6:11-cr-03021-RED (W.D. Mo. Apr. 23, 2012), ECF No. 350. Furthermore,
the district court judge made several references to the defendants’ presence in the
courtroom. Trial Tr. at 91-92 (“Okay. Now I’m going to introduce the parties to you.
The defendants in this case—I’ll ask the defendants each to stand when I call your
name—are Carlous Horton. Okay. Thank you. And Christopher Holmes. Thank
you, sir.”). Given the various references to both Horton and Holmes throughout the
day, and their trial counsels’ failure to raise any objections at the time, we find no
basis in the record to support a potential violation.
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Fourth Amendment rights. Finally, they contend that the Government failed to
comply with the procedural requirements necessary to obtain a wiretap.
The Appellants failed to raise these arguments at the pretrial suppression
hearing and also failed to raise these arguments at trial. Because “[t]hese contentions
were not raised in a pretrial motion to suppress evidence,” they are waived, and we
need not consider them. United States v. Green, 691 F.3d 960, 963-64 (8th Cir. 2012)
(“Because ‘waived claims are unreviewable on appeal,’ the waiver provision of Rule
12 precludes appellate review of arguments to suppress evidence that are not raised
in a pretrial motion to suppress.” (quoting United States v. Booker, 576 F.3d 506, 511
(8th Cir. 2009))); see also United States v. Dunn, 723 F.3d 919, 927 (8th Cir. 2013)
(holding that the defendant’s argument that wiretap evidence should be suppressed
was waived because the defendant “did not raise this issue in his pretrial motion to
suppress”); United States v. Henderson, 613 F.3d 1177, 1182 (8th Cir. 2010) (“By not
raising this suppression argument below, [the defendant] waived the claim, rendering
it unreviewable on appeal.” (internal quotation marks omitted)). We may “grant relief
from the waiver for ‘good cause.’” Green, 691 F.3d at 965 (quoting Fed. R. Crim. P.
12(e)). The Appellants, however, have failed to establish a good cause for granting
such relief in this case because the Government had no obligation to arrest Horton as
soon as it had sufficient evidence to charge him. See United States v. Lovasco, 431
U.S. 783, 791-93 (1977).
B.
The Appellants insist that the Government violated their due process rights by
failing to disclose potentially exculpatory evidence and by engaging in outrageous
conduct throughout the investigation and prosecution.
1.
The Appellants argue that the Government violated its Brady obligation by
failing to disclose material, exculpatory evidence. Because they failed to raise the
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alleged Brady violations at trial, we review for plain error. United States v. Aleman,
548 F.3d 1158, 1164 (8th Cir. 2008). To obtain relief under a plain-error standard of
review, the party seeking relief must show that: (1) there was an error; (2) the error
is clear or obvious under current law; (3) the error affected the party’s substantial
rights; and (4) the error seriously affects the fairness, integrity, or public reputation
of judicial proceedings. United States v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011).
First, the Appellants allege that the Government failed to produce the results of palm
print and fingerprint comparisons. Second, they allege that the Government failed to
provide Horton access to one of his personal computers that contained financial files
Horton needed for his defense. Because the record indicates that Horton was indeed
given access to his computer,6 we need only address the palm prints and fingerprints
claim.
Ten months before trial, the Government requested Horton’s palm prints and
fingerprints so it could determine if Horton’s prints matched those found on two
canisters that were discovered in one of the drug houses. The district court entered an
order compelling Horton to comply with the Government’s request, subject to two
conditions: (1) the print comparisons were to be completed within 30 days of the
order, and (2) the Government was to submit the results to defense counsel. The
record, however, fails to indicate whether the palm print and fingerprint analyses ever
took place. The Government never introduced the print comparisons at trial, and the
Appellants failed to request the comparisons at trial. Now, on appeal, the Appellants
6
The Government contends that it provided Horton an opportunity to access the
computer, but that Horton failed to act on the Government’s offer. In any event, the
Government provided Horton his computer before trial, and Horton was given time
to access his financial files. See Trial Tr. at 19-25. The record indicates that Horton
sought access to financial files in order to help prove his contention that the DEA
stole money from him while conducting its search of his residence, which is dealt with
in more detail below in Part II.B.2.
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speculate that the Government failed to produce the print comparisons because the
evidence was exculpatory.
The Appellants’ Brady claim fails at step one of our plain-error review. Brady
requires the government to disclose evidence that is “both ‘favorable to an accused’
and ‘material either to guilt or punishment.’” United States v. Whitehill, 532 F.3d
746, 753 (8th Cir. 2008) (quoting Brady v. Maryland, 373 U.S. 83, 87 (1963)). The
Appellants note that the Government did not produce the requested print comparisons
at trial. According to the Appellants, the Government’s decision to exclude the print
comparisons at trial must mean that the comparisons were favorable to them. The
Appellants’ argument, which is solely based on conjecture and speculation, cannot
support a Brady violation. As we noted in Aleman, “mere speculation is not sufficient
to sustain a Brady claim.” 548 F.3d at 1164 (alterations omitted) (internal quotation
marks omitted); see also United States v. Gary, 341 F.3d 829, 833-34 (8th Cir. 2003)
(holding that defendants speculation on the results of a fingerprint test could not
establish Brady claim), overruled on other grounds by Chambers v. United States, 555
U.S. 122 (2009); United States v. Sumner, 171 F.3d 636, 637 (8th Cir. 1999) (per
curiam) (holding that no Brady violation occurred when the Government failed to
inform the defendant that a fingerprint analysis performed on an envelope found at the
scene of a crime did not match the defendant). Accordingly, because the Appellants
have failed to show that the Government violated its obligations under Brady, their
claim fails at step one of our plain-error review.
2.
The Appellants also argue that we should set aside their convictions and quash
their indictments because of the Government’s outrageous conduct throughout the
investigation and prosecution. In reviewing a district court’s denial of a motion to
dismiss an indictment for alleged outrageous government misconduct, we review the
district court’s legal conclusions de novo and its factual findings for clear error.
United States v. Nieman, 520 F.3d 834, 838 (8th Cir. 2008). The Appellants allege
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that the Government used a confidential informant known to abuse drugs, intimidated
a witness, and stole money during one of its searches. In order for government
misconduct to warrant dismissal, the conduct “must shock the conscience of the
court.” See United States v. Pardue, 983 F.2d 843, 847 (8th Cir. 1993) (per curiam)
(internal quotation marks omitted). Morever, we are reminded that this “defense is
reserved for conduct that falls ‘within that narrow band of the most intolerable
government conduct.’” See United States v. King, 351 F.3d 859, 867 (8th Cir. 2003)
(quoting Pardue, 983 F.2d 847).
The Appellants have failed to show that the Government’s conduct rises to the
level of outrageousness needed to prove a due process violation because their
allegations are either unsupported by the record or fail to “shock the conscience of the
court.” See Pardue, 983 F.2d at 847.
First, the Government’s use of its confidential informant fails to establish a due
process claim. The Government conceded that, after using the informant for
approximately four months, it discovered that its informant was making unauthorized
drug purchases. At that point, the Government ceased using the informant in a
proactive manner, though the Government did not notify the informant that it was
terminating their relationship for fear that doing so would jeopardize the
Government’s larger investigation. “‘[T]he use of unsavory informants is quite often
the nature of the beast in police investigations,’” and here, because the Government
neither directed or encouraged its informant’s impermissible behavior, the informant’s
misconduct cannot be attributed to the Government. See Nieman, 520 F.3d at 838
(quoting United States v. King, 351 F.3d 859, 868 (8th Cir. 2003)).
Second, the Government did not impermissibly intimidate Horton’s witness to
keep her from testifying. Horton sought to have a witness testify to support his
allegation that the DEA stole money during its search of his home. Before the
witness, who Horton failed to indicate as a potential witness prior to the hearing, took
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the stand, the Government informed the court that the witness was the subject of a
Social Security Administration investigation and that the witness may want to seek
legal counsel before testifying. The witness decided not to testify. Though
“government conduct designed to intimidate potential defense witnesses is improper,”
United States v. Habhab, 132 F.3d 410, 415 (8th Cir. 1997), a prosecutor is not
prohibited from suggesting that a defense witness should speak with an attorney to
prevent self-incrimination. See United States v. Mahasin, 362 F.3d 1071, 1087 (8th
Cir. 2004).
Finally, Horton’s allegation that DEA agents stole approximately $9,000 from
his residence while executing a search warrant is not sufficient to support the
Appellants’ claim of outrageous government conduct that violated their right to due
process. Horton’s allegation may provide a basis for a civil action,7 but, because our
precedent has focused the outrageous-conduct inquiry on situations in which officers
“create crimes in order to lure a defendant into illegal activity ‘[the defendant] was not
otherwise ready and willing to commit,’” the allegation is insufficient to support a due
process claim. See United States v. Boone, 437 F.3d 829, 842 (8th Cir. 2006)
(quoting United States v. Lard, 734 F.2d 1290, 1297 (8th Cir. 1984)); see also King,
351 F.3d at 867-68.
C.
The Appellants maintain that the district court erred in failing to hold a Remmer
hearing to investigate the possibility that a juror may have overheard a conversation
between Holmes’s defense counsel and Holmes’s family during a recess at trial.8
7
A district court dismissed Horton’s civil suit against the DEA in April 2013,
see Order at 1-3, Horton v. Drug Enforcement Agency, No. 6:11-cv-03381-GAF
(W.D. Mo. Apr. 10, 2013), ECF No. 51, and the Eighth Circuit affirmed the dismissal,
see Judgment, Horton, No. 13-2884 (8th Cir. Sept. 5, 2013).
8
A Remmer hearing is a mechanism the district court may utilize to investigate
allegations of intrusions on the jury. See United States v. Tucker, 137 F.3d 1016,
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On day four of the trial, Holmes’s defense counsel informed the district court
that during a recess he noticed a juror standing a few feet away from him while he was
discussing the case with the Holmes’s family members. The district court, the
prosecutor, and defense counsel discussed how they should proceed to remedy the
potential problem. The court determined that it would continue with the trial, draw
as little attention to what occurred as possible, and potentially question the juror when
the court dismissed the alternates. At the close of the trial, the court requested the
juror in interest to stay behind as the jury retired to deliberate. The court asked the
juror if he had overheard the conversation about which Holmes’s counsel was
concerned, and the juror indicated that he had not. The judge then asked defense
counsel if they had any questions for the juror; defense counsel indicated they did not.
With that, the juror was excused and dismissed from the panel, and an alternate juror
took his place.
Because the Appellants failed to object at trial, we review the Appellants’
Remmer claim for plain error. See United States v. Pirani, 406 F.3d 543, 549 (8th Cir.
2005) (en banc). The Appellants contend that the district court had an obligation to
conduct a full hearing to explore the possibility that the juror may have overheard the
discussion between Holmes’s counsel and Holmes’s family. We disagree. Trial
courts are given substantial deference to resolve potential problems with the jury, see
United States v. Melius, 123 F.3d 1134, 1138 (8th Cir. 1997), and with this deference
in mind, we hold that the district court reasonably resolved the possibility that the
juror was exposed to improper information. The district court properly weighed the
“gravity of the alleged misconduct,” which was relatively minor, and the
“substantiality of the [Holmes’s] showing of misconduct.” See Tucker, 137 F.3d at
1031; accord United States v. Mack, 729 F.3d 594, 605-06 (6th Cir. 2013) (holding
that defendant’s Remmer challenge, based on a juror potentially overhearing a
conversation between testifying FBI agents during a lunch break, failed under a plain-
1030-31 (8th Cir. 1998).
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error review because the defendant failed to create a record that could establish the
necessity of a full hearing). The juror informed the court, in the presence of defense
counsel, that the juror did not overhear the conversation, and the court invited defense
counsel to question the juror further, an invitation that was declined. The court relied
on the juror’s statement, see Smith v. Phillips, 455 U.S. 209, 217 & n.7 (1982), to
determine that dismissing the juror would adequately resolve the issue. The
Appellants’ suggestion that the juror was potentially exposed to improper information
was resolved by the district court. Thus, there was no reason for the district court to
take additional measures. The Appellants have failed to show error, the first prong of
our plain-error review.
D.
The Appellants contend that the Western District of Missouri’s juror selection
plan9 violates the fair-cross-section requirement of the Sixth Amendment. To
establish a fair-cross-section claim, the Appellants are required to show:
(1) that the group alleged to be excluded is a “distinctive” group in the
community; (2) that the representation of this group in venires from
which juries are selected is not fair and reasonable in relation to the
number of such persons in the community; and (3) that this
under-representation is due to systematic exclusion of the group in the
jury-selection process.
United States v. Jefferson, 725 F.3d 829, 835 (8th Cir. 2013) (quoting United States
v. Sanchez, 156 F.3d 875, 879 (8th Cir. 1998)).
The Appellants argue that their right to an “impartial jury drawn from a fair
cross section of the community,” Taylor v. Louisiana, 419 U.S. 522, 536 (1975), was
9
The Western District of Missouri’s juror selection plan derives the pool of
potential jurors from merged lists of general election voter registration and licensed
drivers.
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violated because their juror pool did not include any African-American jurors. The
Appellants failed, however, to provide any data on the racial makeup of juror pools
in the Western District of Missouri or any statistical analyses showing under-
representation. Cf. United States v. Rogers, 73 F.3d 774, 776-77 (8th Cir. 1996)
(providing examples of the type of statistical data needed to establish a prima facie
case). The only evidence they provide in support of their argument, aside from their
own observation that the juror pool lacked African-American jurors, is census data
showing the total population of African-Americans in Springfield, Missouri and
Missouri as a whole. We reject the Appellants’ Sixth Amendment fair-cross-section
claim because of their inability to provide any evidence that the jury panel was not
chosen from a fair and impartial cross-section of the community. Jefferson, 725 F.3d
at 835; see also Singleton v. Lockhart, 871 F.2d 1395, 1399 (8th Cir. 1989)
(“Evidence of a discrepancy on a single venire panel cannot demonstrate systematic
exclusion.”).
III.
Separately, Holmes raises three arguments on appeal: (1) the district court erred
when it admitted, pursuant to Federal Rule of Evidence 404(b), evidence of his prior
criminal convictions; (2) the district court erred in sentencing him to a mandatory life
term because his presentence investigation report (PSR) failed to state that a
mandatory life sentence was a possible sentence; and (3) the district court erred by
failing to address his Blakely10 objections to the PSR.
A.
Holmes asserts that the district court erred in admitting, pursuant to Federal
Rule of Evidence 404(b), evidence of Holmes’s prior drug convictions. In the case
currently on appeal, Holmes was charged with (1) conspiracy to distribute cocaine;
(2) possession of cocaine with the intent to distribute; and (3) possession of a firearm
10
Blakely v. Washington, 542 U.S. 296 (2004).
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by a convicted felon. The Government introduced into evidence, over defense
counsel’s objection, three of Holmes’s former convictions: (1) a 2004 conviction for
possession of a controlled substance; (2) a 2006 conviction for possession of a
controlled substance with intent to deliver; and (3) a 2004 conviction for attempted
felony possession of a firearm.
We review a district court’s decision to admit evidence under Rule 404(b) for
abuse of discretion. See United States v. Wilson, 619 F.3d 787, 791-92 (8th Cir.
2010). Rule 404(b) is a rule of inclusion, and, as such, if “evidence [is] offered for
permissible purposes [it] is presumed admissible absent a contrary determination.”
United States v. Johnson, 439 F.3d 947, 952 (8th Cir. 2006). Evidence is admissible
under Rule 404(b) if it is “(1) relevant to a material issue; (2) similar in kind and close
in time to the crime charged; (3) proven by a preponderance of the evidence; and (4)
if the potential prejudice does not substantially outweigh its probative value.” United
States v. Thomas, 398 F.3d 1058, 1062 (8th Cir. 2005). Holmes claims that the first,
second, and fourth considerations of our Rule 404(b) analysis all weigh in favor of
reversal. We disagree and hold that the district court did not abuse its discretion in
admitting evidence of Holmes’s prior convictions.
Beginning with the first 404(b) consideration, Holmes’s prior convictions are
relevant to the material issue of Holmes’s state of mind. “It is settled in this circuit
that ‘a prior conviction for distributing drugs, and even the possession of
user-quantities of a controlled substance, are relevant under Rule 404(b) to show
knowledge and intent to commit a current charge of conspiracy to distribute drugs.’”
United States v. Robinson, 639 F.3d 489, 494 (8th Cir. 2011) (quoting United States
v. Frazier, 280 F.3d 835, 847 (8th Cir. 2002)). Additionally, evidence of prior
possession of drugs is admissible “to show such things as knowledge and intent of a
defendant charged with a crime in which intent to distribute drugs is an element.”
United States v. Hardy, 224 F.3d 752, 757 (8th Cir. 2000) (internal quotation marks
omitted); see also United States v. Tyerman, 701 F.3d 552, 562-63 (8th Cir. 2012)
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(“[Rule] 404(b) evidence may establish motive and intent in felon-in-possession
cases.”).
Next, each of the offenses introduced was similar in kind to Holmes’s current
charges and sufficiently close in time to Holmes’s trial, satisfying the second
consideration. Holmes’s prior drug and gun convictions are virtually identical in kind
to the current charges he faced, and the most remote of Holmes’s prior convictions
was eight years old at the time of trial, a length of time we have found sufficiently
close on several occasions. See, e.g., United States v. Gaddy, 532 F.3d 783, 789 (8th
Cir. 2008) (holding that prior convictions of “four, ten and eleven years old” were not
so remote to be inadmissible). Finally, with regard to the fourth consideration, the
district court’s limiting instruction mitigated any potential prejudicial effect evidence
of Holmes’s prior convictions may have had on the jury. See Robinson, 639 F.3d at
494. Accordingly, we conclude that the district court did not abuse its discretion by
admitting evidence of Holmes’s former convictions.
B.
Holmes argues that his sentence should be vacated because the district court
erred in sentencing him to mandatory life imprisonment when his PSR failed to
provide that the he was facing a mandatory life sentence. Because Holmes admittedly
failed to object to this alleged procedural error before the district court, we review for
plain error. United States v. Burnette, 518 F.3d 942, 945 (8th Cir. 2008) (“Procedural
sentencing errors are forfeited, and therefore may be reviewed only for plain error, if
the defendant fails to object in the district court.”); see also United States v. Poitra,
648 F.3d 884, 887 (8th Cir. 2011) (holding that plain-error standard requires a party
to show that “there was an error, the error is clear or obvious under current law, the
error affected the party’s substantial rights, and the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings”). In the sentencing context, an
error affects a defendant’s “substantial rights” when the error is prejudicial, and “‘an
error is prejudicial only if the defendant proves a reasonable probability that he would
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have received a lighter sentence but for the error.’” United States v. Franklin, 695
F.3d 753, 757 (8th Cir. 2012) (quoting United States v. Molnar, 590 F.3d 912, 914
(8th Cir. 2010)); see also United States v. Pirani, 406 F.3d 543, 551-53 (8th Cir. 2005)
(en banc). Holmes cannot show that the error was prejudicial because he cannot show
that he would have received a lighter sentence but for the alleged misstated sentencing
range in the original PSR. Accordingly, we reject Holmes’s challenge.
Prior to trial, the Government filed with the district court an information
pursuant to 21 U.S.C. § 851, which provided notice of its intent to use Holmes’s prior
criminal convictions for enhancement purposes. Shortly after, at a pretrial hearing,
the Government stated in the presence of Holmes that Holmes would be facing a
mandatory life sentence if convicted but that he could, instead, plead guilty and face
a lesser mandatory minimum. See Tr. Pretrial Conference at 2-3, No. 6:11-cr-03021-
RED (W.D. Mo. Apr. 11, 2012), ECF No. 583. The judge presiding over the pretrial
conference verified that Holmes understood the gravity of the decision he faced:
Court: All right. Mr. Holmes, you understand that the United States has
filed what’s called an enhancement, which would raise, if convicted at
trial, raise the minimum mandatory to life imprisonment. They have
offered as a plea agreement to drop one of those enhancements, which
would change the minimum mandatory from life to 20 years. Do you
understand that?
Holmes: Yes, sir.
Court: All right. So, you need to discuss that with your attorney
promptly and make a decision that’s in your best interest. And with that,
—
Holmes: Yes, sir.
Court: —we’ll be in recess.
See id. at 3. As this exchange indicates, Holmes was aware that he faced the potential
for life in prison if he proceeded to trial. When Holmes’s PSR was drafted, however,
it failed to reflect that Holmes was facing a mandatory life sentence. Instead, the PSR
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provided a sentencing range of 324 to 405 months. Neither side objected to the
sentencing-range error, and the PSR was finalized on September 11, 2012.
At the sentencing hearing in October, the court notified Holmes that, contrary
to the original PSR, he was facing a mandatory life sentence. See Sentencing Tr. at
3, 6, No. 6:11-cr-03021-RED (W.D. Mo. Dec. 17, 2012), ECF No. 553. Though the
minute sheet for the day’s proceedings reflects that the district court corrected the PSR
at the sentencing hearing, see Minute Sheet at 1, No. 6:11-cr-03021-RED (W.D. Mo.
Oct. 26, 2012), ECF No. 520, the transcript does not contain a record of the correction.
In any event, the PSR was later amended to reflect the correction and conform with
the sentence imposed. Sentencing Addendum to the Presentence Report at 1, No.
6:11-cr-03021-RED (W.D. Mo. Oct. 29, 2012), ECF No. 509.
We need not determine whether the misstated sentencing range in the original
PSR satisfies the first two prongs of our plain-error analysis because even if we were
to assume that the misstated sentencing range constituted an error that was clear or
obvious, Holmes fails to show that he would be entitled to a lighter sentence but for
the error. See Franklin, 695 F.3d at 757. The most significant problem with Holmes’s
argument is that he faced a mandatory minimum sentence. Absent a government
motion, “‘the district court is without authority to impose a sentence below a statutory
mandatory minimum sentence.’” United States v. Perez, 526 F.3d 1135, 1138 (8th
Cir. 2008) (quoting United States v. Holbdy, 489 F.3d 910, 912 (8th Cir. 2007)); see
also 18 U.S.C. § 3553(e), (f). Because Holmes’s sentence was mandatory, the error
in the PSR had no affect on the sentence Holmes received. See United States v.
Chacon, 330 F.3d 1065, 1065-66 (8th Cir. 2003) (affirming a defendant’s sentence
when the district court overlooked the statutory minimum, sentenced the defendant to
the wrong term, and later discovered and corrected the error). Accordingly, Holmes
is unable to show a reasonable probability that but for the error in the PSR he would
have received a more favorable sentence. See Pirani, 406 F.3d at 553; cf. United
States v. Crawford, 487 F.3d 1101, 1108 (8th Cir. 2007) (“Because [the defendant’s]
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sentence was driven by mandatory minimum terms of incarceration defined by statute,
there is nothing any attorney could have done to achieve a more favorable result at
sentencing.”). Since the misstated sentencing range did not affect Holmes’s
substantial rights, he has not shown plain error.
C.
Holmes contends that the district court erred by failing to address his Blakely
based objections to the PSR. Holmes objected to the offense conduct portion of the
PSR in its entirety with the following pro-forma objection:
This objection is made pursuant to Blakely v. Washington, 124 S. Ct.
2531 (2004) (sentencing enhancements not admitted to by defendant or
found by the jury beyond a reasonable doubt are unconstitutional) and
pursuant to United States v. Menteer, 408 F.3d 445 (8th Cir. 2005)
(when a defendant does not object to a fact in a presentence report, the
defendant is generally presumed to have admitted the fact for sentencing
purposes). Such admissions are deemed made even for Sixth
Amendment arguments. See United States v. Thorn, 413 F.3d 820 (8th
Cir. 2005).
Holmes also objected to the criminal history portion of his PSR. At sentencing,
Holmes’s counsel informed the court that she had no additional objections to the PSR.
See Sentencing Tr. at 2. The district court overruled Holmes’s objections and
continued with sentencing. Holmes now argues on appeal that the district court
should have conducted a separate hearing to rule on his objections and fully explain
its reasoning.
We disagree with Holmes’s contention and find no error in the district court’s
actions. Holmes failed to notify the Government and the court of any specific facts
he disputed and instead opted to challenge the entire offense conduct section with a
general Blakely objection. This objection was too vague to alert the Government and
the court of any specific, disputed issues. See United States v. Rodriguez, 711 F.3d
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928, 939-40 (8th Cir. 2013); United States v. Davis, 583 F.3d 1081, 1095 (8th Cir.
2009) (“The reason we require specific objections is to put the Government on notice
of the challenged facts which the government will need to prove at the sentencing
hearing.” (internal quotation marks omitted)); cf. United States v. Sorrells, 432 F.3d
836, 837-39 & n.2 (8th Cir. 2005) (holding that defendant’s objections “were
minimally sufficient” because they alerted the court to specific uncharged conduct
relied upon by the sentencing judge). Holmes’s challenge to the criminal history
section was equally vague and therefore fails. See Rodriguez, 711 F.3d at 939-40.10
IV.
Having reviewed the record carefully, and having considered all of the
contentions on appeal, we find no basis for reversal. Accordingly, we affirm Horton
and Holmes’s convictions and sentences.
______________________________
10
We recently recognized that Alleyne v. United States, 133 S. Ct. 2151 (2013),
“left intact the rule that enhancements based on the fact of a prior conviction are an
exception to the general rule that facts increasing the prescribed range of penalties
must be presented to a jury.” See United States v. Abrahamson, 731 F.3d 751, 751-52
(8th Cir. 2013) (per curiam).
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