Filed: Jun. 22, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4519 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANIEL HOLMES, a/k/a Dan, a/k/a Big Dan, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Beaufort. Sol Blatt, Jr., Senior District Judge. (9:04-cr-00429-SB-1) Argued: May 11, 2010 Decided: June 22, 2010 Before TRAXLER, Chief Judge, and NIEMEYER and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinio
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4519 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANIEL HOLMES, a/k/a Dan, a/k/a Big Dan, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Beaufort. Sol Blatt, Jr., Senior District Judge. (9:04-cr-00429-SB-1) Argued: May 11, 2010 Decided: June 22, 2010 Before TRAXLER, Chief Judge, and NIEMEYER and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4519
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL HOLMES, a/k/a Dan, a/k/a Big Dan,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Sol Blatt, Jr., Senior District
Judge. (9:04-cr-00429-SB-1)
Argued: May 11, 2010 Decided: June 22, 2010
Before TRAXLER, Chief Judge, and NIEMEYER and AGEE, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Robert Sneed, ROB SNEED LAW FIRM, LLC, Greenville, South
Carolina, for Appellant. Eric John Klumb, OFFICE OF THE UNITED
STATES ATTORNEY, Charleston, South Carolina, for Appellee. ON
BRIEF: W. Walter Wilkins, United States Attorney, Columbia,
South Carolina, Matthew J. Modica, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant Daniel Holmes challenges his conviction and
sentence for conspiracy to possess with intent to distribute,
and to distribute, 50 grams or more of cocaine base (crack) and
cocaine. See 21 U.S.C.A. §§ 841(a)(1), 841(b)(1), & 846 (West
1999 & Supp. 2010). We affirm.
I.
This case arises out of Holmes’ involvement in a drug
distribution conspiracy in St. Helena Island and nearby areas in
Beaufort County, South Carolina, from 1992 to 2002. To prove
the conspiracy, the government presented the testimony of
numerous witnesses who were involved in the distribution
activities occurring there and who dealt with Holmes, as well as
the testimony of law enforcement officers in South Carolina,
Florida, and Texas, regarding their encounters with Holmes.
The first category of evidence pertains to Holmes’ drug
dealing activities during the years 1992 to 1994. Aldolpheous
Green, Jamie Green, Joveco Scott, Andre Livingston, and Jermaine
Fields all testified that they purchased crack from Holmes
during this time period. Livingston further testified that
Holmes “was fronting [him] the drugs” for sale, J.A. 442, and
Fields testified that he and Scott “moved drugs for [Holmes],”
2
J.A. 482. On one occasion, Scott and Livingston traveled with
Holmes to Savannah, Georgia, with the intent to purchase drugs.
In May 1993, Beaufort County police officers arrested
Holmes on a fugitive warrant. During a search of Holmes’
vehicle, the officers found crack weighing approximately 2.73
grams. In January 1994, law enforcement officers arranged a
controlled purchase of crack at Holmes’ residence. In March
1994, a second controlled purchase was made. A search warrant
was then obtained for Holmes’ residence where officers found
3.47 grams of crack cocaine, 2.12 grams of powder cocaine, and
firearms. Holmes confessed to the officers that he had been
selling crack for some time and that his 16-year-old nephew had
been selling crack for him. However, Holmes would not identify
his nephew by name, his suppliers, or his customers. 1
The second category of evidence consists of testimony
describing Holmes’ drug dealing activities from 1997 to 2002.
Arthur Chaplin testified that he began selling crack in 1996 and
first purchased crack from Holmes in 1997. In 1998, Chaplin
began purchasing powder cocaine from Holmes. He made two nine-
1
On August 17, 1994, Holmes pled guilty in state court to
separate charges of possession with intent to distribute powder
cocaine on March 19, 1994, possession with intent to distribute
crack on March 15, 1994, and distribution of crack on January
20, 1994. He was sentenced to twelve years in prison, suspended
to six years in prison and five years’ probation. He was
paroled on October 16, 1996.
3
ounce purchases from Holmes for $6,500 each, and traveled with
Holmes to Savannah, Georgia, to pick up the drugs for the second
purchase. Chaplin later gave Holmes $13,000 for the purchase of
a kilogram of cocaine powder, which was to be a part of a larger
purchase of 20 kilograms of cocaine by Holmes from a source in
Coco Beach, Florida. Approximately two weeks after Chaplin gave
Holmes the money, Holmes told Chaplin that the expected shipment
of cocaine had not arrived and he asked Chaplin to travel to
Florida with him and a third man to get the drugs.
On August 2, 1999, while en route to Coco Beach, Florida,
Holmes was stopped by Nassau County Sheriff’s detectives working
with a drug interdiction team just outside of Jacksonville,
Florida. A firearm found in the vehicle was claimed by Holmes
and he was arrested and charged with possession of a firearm by
a convicted felon and possession of a firearm with altered
serial numbers. Chaplin and the third man continued the trip to
Coco Beach, where they were to contact Holmes’ nephew about the
expected shipment. Upon arrival, however, Chaplin was told that
the shipment had still not arrived and the men returned to
Beaufort. When Chaplin arrived in Beaufort, he contacted Ivy
Nesbitt, whom Chaplin understood was Holmes’ “partner[] [i]n the
drug game,” and told Nesbitt that Holmes had been arrested on
the trip. J.A. 291.
4
Approximately two weeks later, Holmes returned to Beaufort.
Holmes gave Chaplin ten one-pound bags of marijuana to make up
in part for the $13,000 that Chaplin had paid for the unrealized
cocaine shipment. Shortly thereafter, Chaplin was traveling
with Holmes on Seaside Road in St. Helena Island when Beaufort
County officers initiated a traffic stop. Chaplin, who was
driving, accelerated and Holmes threw four ounces of crack,
which he had just given to Chaplin in further repayment of the
debt, out of the window of the vehicle. Chaplin was charged
with failure to stop for a blue light. Holmes was released and
walked back to retrieve the crack he had thrown from the
vehicle. A few days later, Holmes returned the crack to
Chaplin. In December 1999, Chaplin purchased eighteen ounces of
cocaine from Holmes for $12,000.
Romel Middleton testified that in 1997 or 1998, Holmes
approached him “and asked [him] if [he] would like to make some
money.” J.A. 341-42. Holmes proposed that Middleton “sell[]
crack cocaine with the means of making $100 a half a gram,” and
Middleton agreed. J.A. 342. Middleton testified that he was
“working for Mr. Holmes.” J.A. 342. According to Middleton, “a
guy . . . named Ivy” was sometimes present during his dealings
with Holmes. J.A. 344. Middleton testified that Holmes
sometimes “fronted” him drugs and that he usually “came through
. . . with the money” but “[s]ometimes . . . came up short.”
5
J.A. 342. Eventually, Holmes “got tired of it” and “stopped
dealing with” Middleton. J.A. 344. Middleton then began
dealing with Chaplin. Sheniqua Moultrie also testified that she
would bring crack buyers to Holmes and she would get “[e]xtra
pieces of crack” in payment for her efforts. J.A. 419.
Finally, Roderick Chisholm and Travis Polite testified that they
purchased crack from Holmes in 1999. Aldolpheous Green
testified that he sold crack to Holmes in 1998 and 1999.
In addition to Chaplin’s testimony regarding Nesbitt’s
involvement with Holmes, other witnesses also implicated Nesbitt
as a coconspirator with Holmes. Several witnesses, for example,
testified that they would see the men together and believed them
to be working together. Joseph Ferguson testified that he ran
into Nesbitt at a gas station in the late 1990s and Nesbitt told
Ferguson that they had crack for sale at “low prices,”
specifically 7 grams for $200. J.A. 405. Over the next several
weeks, Ferguson twice visited Holmes’ residence on Seaside Road,
where he purchased the drugs from Holmes at the price quoted by
Nesbitt. Dereck Grant testified that in the summer of 1998, he
went to see Nesbitt, his usual supplier, at the Seaside Road
residence and told Nesbitt that he “needed some work.” J.A.
462. In Grant’s presence, Nesbitt told Holmes “that he [Holmes]
could go ahead and handle that” and Holmes got the drugs for
6
Grant. J.A. 462. Grant testified that he also fronted crack to
Holmes in early 2002.
On September 26, 2000, the Beaufort County Sheriff’s office
made a controlled purchase of crack at Holmes’ residence at
Seaside Road. Several days later, the officers executed a
search warrant at the residence. The officers found Holmes in
his bedroom with crack. Additional crack, Ziploc bags, and
razor blades were found in the bedroom of Holmes’ roommate,
Donald Mitchell, who was not present at the time of the search.
Nesbitt, whose legal residence was in Savannah, Georgia, was at
the residence and a truck registered to him with Georgia tags
was in the yard. Officers found digital scales with cocaine
residue, Ziploc bags, razor blades, and over $2,000 in cash
wrapped around three driver’s licenses in the truck. A total of
5.94 grams of crack was seized during the search of the
residence.
On April 16, 2001, Beaufort County Sheriff’s officers
observed Holmes’ vehicle blocking traffic in a roadway. Holmes
and Chaplin were in the vehicle. When the officers attempted to
initiate a traffic stop, Holmes failed to stop. While in
pursuit, the officers observed Holmes throwing crack out of the
vehicle’s window. The total weight of the crack later retrieved
by law enforcement officers was 1.58 grams. Nesbitt came to the
7
scene of the stop and made eye contact with Holmes but did not
communicate verbally with him.
On June 14, 2001, a narcotics interdiction patrol near
Houston, Texas, a known source city for cocaine, stopped a
vehicle carrying Nesbitt, Holmes, and two others. When the
occupants of the vehicle gave conflicting stories to the
officers and behaved nervously, a drug dog was brought to the
scene and alerted officers to possible drugs in a gym bag in the
vehicle. None of the occupants would claim the gym bag. While
no drugs were found, the bag contained $134,500 in U.S. currency
that was “[p]ackaged like dope money.” J.A. 644.
On July 11, 2003, while Holmes was incarcerated for state
drug convictions, federal law enforcement agents served Holmes
with a Texas warrant for money laundering arising from the June
14, 2001, traffic stop. Holmes told the agents that “he was a
small-time dealer and he dealt basically in Beaufort County to
support his family and that he knew that one day he would be
getting arrested.” J.A. 499. 2
On April 14, 2004, Holmes was charged in a two-count
indictment in South Carolina district court. Count One charged
Holmes with conspiracy to possess with intent to distribute, and
2
According to the Texas officer, Nesbitt was subsequently
convicted and sentenced in Texas for money laundering. It
appears that the charges against Holmes were dismissed.
8
to distribute, 50 grams or more of cocaine base (crack) and
cocaine. Count Two charged Holmes with conspiracy to knowingly
use and carry firearms in relation to drug trafficking offenses.
On June 28, 2006, the government filed an information pursuant
to 21 U.S.C.A. § 851 (West 1999) notifying Holmes that he would
be subject to enhanced penalties due to his prior felony drug
convictions. On May 3, 2007, the jury returned a verdict
convicting Holmes of the drug count but acquitting him of the
firearm count. Because Holmes had at least two prior felony
drug convictions, he was sentenced to life imprisonment pursuant
to the mandatory minimum sentence requirement of 21 U.S.C.A.
§§ 841(b)(1)(A). This appeal, challenging both his conviction
and life sentence, followed.
II.
A.
Holmes first contends that the district court erred in
denying his motion for judgment of acquittal because there was
insufficient evidence that he was involved in a drug
distribution conspiracy. He contends that the evidence merely
established that he was a conspiracy of one, engaged in buying
and selling drugs in the area solely for his own benefit.
We review the district court’s denial of a motion for
judgment of acquittal de novo. See United States v. Smith, 451
9
F.3d 209, 216 (4th Cir. 2006); United States v. Alerre,
430 F.3d
681, 693 (4th Cir. 2005). We view the evidence in the light
most favorable to the government and must affirm if the verdict
is supported by “substantial evidence.” United States v.
Burgos,
94 F.3d 849, 862 (4th Cir. 1996) (en banc) (citing
Glasser v. United States,
315 U.S. 60, 80 (1942)).
“[S]ubstantial evidence is evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.”
Id.
In order to prove the charged conspiracy, the government
must establish beyond a reasonable doubt: (1) the existence of
an agreement between two or more persons to distribute and
possess cocaine with intent to distribute; (2) the defendant’s
knowledge of the conspiracy; and (3) that the defendant was
knowingly and voluntarily a part of the conspiracy. See United
States v. Yearwood,
518 F.3d 220, 225-26 (4th Cir. 2008). “By
its very nature, a conspiracy is clandestine and covert, thereby
frequently resulting in little direct evidence of such an
agreement.”
Burgos, 94 F.3d at 857. Consequently, the
“conspiracy generally is proved by circumstantial evidence and
the context in which the circumstantial evidence is adduced.”
Id. “Circumstantial evidence tending to prove a conspiracy may
consist of a defendant’s relationship with other members of the
10
conspiracy, the length of this association, the defendant’s
attitude and conduct, and the nature of the conspiracy.” Id. at
858 (internal quotation marks and alterations omitted). “[O]ne
may be a member of a conspiracy without knowing its full scope,
or all its members, and without taking part in the full range of
its activities or over the whole period of its existence.”
Id.
(internal quotation marks omitted). It is also not necessary to
prove “a discrete, identifiable organizational structure.”
Id.
(internal quotation marks omitted). Rather “contemporary drug
conspiracies can contemplate only a loosely-knit association of
members linked only by their mutual interest in sustaining the
overall enterprise of catering to the ultimate demands of a
particular drug consumption market.”
Id. (internal quotation
marks and alterations omitted). “[T]he fact that a conspiracy
is loosely-knit, haphazard, or ill-conceived does not render it
any less a conspiracy–or any less unlawful.”
Id. “Under the
applicable principles, trial evidence is sufficient to establish
a single conspiracy where the conspirators are shown to share
the same objectives, the same methods, the same geographic
spread, and the same results.”
Smith, 451 F.3d at 218.
Here, there was substantial evidence to establish that a
conspiracy existed between Holmes and Nesbitt to distribute
crack in the St. Helena Island area of Beaufort County over the
same time period. Witnesses admittedly involved in the drug
11
trade in the area testified that they understood that Holmes and
Nesbitt were working together in the distribution efforts there.
Nesbitt resided in Savannah, Georgia, where Holmes would travel
to obtain drugs for sale. And Nesbitt would travel to Beaufort
County where the two men conducted their drug dealing activities
jointly from the Seaside Road residence. At least two witnesses
were directed by Nesbitt to the Seaside Road residence for the
purchase of drugs, where they dealt with either or both of the
men. Ferguson testified that when he went to the residence at
Seaside Road to buy drugs at the price quoted by Nesbitt, he
obtained drugs from Holmes at the same price. Grant testified
that when he went to see Nesbitt at the residence for “work,”
Nesbitt asked Holmes to “handle” getting Grant the drugs. J.A.
462. Nesbitt and his truck, with drug paraphernalia, were
present at the Seaside Road residence during the September 29,
2000, search. And, of course, Nesbitt and Holmes were together
during the June 2001 trip to Texas with $134,500 “[p]ackaged
like dope money” in a bag that smelled of drugs. J.A. 644.
There was also substantial evidence to establish a
conspiracy between Holmes and other residents of the St. Helena
Island area to distribute crack in the area during this time
period. In the early 1990s, Holmes confessed to law enforcement
officers that his nephew was dealing drugs for him. Livingston
testified that Holmes was fronting him drugs for sale.
12
Middleton testified that he worked for Holmes in the late 1990s,
and that Holmes fronted him drugs for sale as well. Moultrie
testified that she brought buyers to Holmes for payment in
crack. And several additional witnesses testified that Holmes
was supplying drugs to them.
In sum, there is substantial evidence to support the jury’s
determination that Holmes was knowingly and voluntarily a part
of a conspiracy with Nesbitt and others to distribute cocaine
and crack in the St. Helena Island area of Beaufort County,
South Carolina, during the charged time period, and that he and
his coconspirators shared the same objectives, methods and
geographic spread in their distribution activities.
Accordingly, the district court properly denied Holmes’ motion
for judgment of acquittal.
B.
Holmes next contends that the trial court erred in
permitting witnesses Ferguson and Grant to testify regarding the
inculpatory statements made by Nesbitt either to them or in
their presence. Specifically, Holmes challenges the admission
of Ferguson’s testimony that Nesbitt said he and Holmes had
crack for sale at 7 grams for $200, which led to Ferguson
purchasing the drugs from Holmes at the quoted price, and
Grant’s testimony that Nesbitt asked Holmes to get Grant the
drugs he needed to sell when Grant sought out work from Nesbitt.
13
A statement is not hearsay if it is offered against a party
and was made “by a coconspirator of a party during the course
and in furtherance of the conspiracy.” Fed. R. Evid.
801(d)(2)(E). When the government shows by a preponderance of
the evidence that a conspiracy existed of which the defendant
was a member, and that the coconspirator’s statement was made
during the course of and in furtherance of the conspiracy, the
statement is admissible. See United States v. Squillacote, 221
F.3d 542, 563 (4th Cir. 2000); United States v. Neal,
78 F.3d
901, 904-05 (4th Cir. 1996).
We generally review a district court’s decision to admit a
statement under Rule 801(d)(2)(E) for an abuse of discretion.
See Neal, 78 F.3d at 905. Because Holmes did not make this
objection at trial, however, we review for plain error. See
Fed. R. Crim. P. 52(b); United States v. Olano,
507 U.S. 725,
731-32 (1993). We will reverse only if (1) the district court
committed an error, (2) the error is plain, and (3) the error
affects substantial rights of the defendant. See
id. at 732.
Even if these prerequisites are met, however, “Rule 52(b) leaves
the decision to correct the forfeited error within the sound
discretion of the court of appeals, and the court should not
exercise that discretion unless the error seriously affects the
fairness, integrity or public reputation of judicial
14
proceedings.” Id. (internal quotation marks and alteration
omitted).
Here, the district court did not plainly err in allowing
Nesbitt’s statements into evidence. As discussed above,
substantial evidence established Nesbitt to be a coconspirator
of Holmes. Because Nesbitt’s statements were made in the course
and in furtherance of the conspiracy, they were clearly
admissible under Rule 801(d)(2)(E).
C.
Holmes next contends that various comments the prosecutor
made during closing arguments deprived him of a fair trial.
Because there was no contemporaneous objection made to the
statements, we review for plain error. See Olano, 507 U.S. at
731-32.
“[G]reat latitude is accorded counsel in presenting closing
arguments to a jury. In our adversary system, prosecutors are
permitted to try their cases with earnestness and vigor, and the
jury is entrusted within reason to resolve heated clashes of
competing views.” United States v. Johnson, 587 F.3d 625, 632
(4th Cir. 2009) (internal quotation marks, citations and
alteration omitted). This is particularly true during closing
argument – the “time for energy and spontaneity, not merely a
time for recitation of uncontroverted facts.”
Id. (internal
quotation marks omitted). “To be sure, there are some lines
15
that prosecutors may not cross. But to parse through a
prosecutor’s closing statement for minor infelicities loses
sight of the function of our adversary system, which is to
engage opposing views in a vigorous manner.” Id. at 633
(citation omitted); see also Bates v. Lee,
308 F.3d 411, 422
(4th Cir. 2002).
We apply “a two-pronged test for determining whether a
prosecutor’s misconduct in closing argument ‘so infected the
trial with unfairness as to make the resulting conviction a
denial of due process.’” United States v. Wilson, 135 F.3d 291,
297 (4th Cir. 1998) (quoting Darden v. Wainwright,
477 U.S. 168,
181 (1986)). A defendant must demonstrate (1) “that the
prosecutor’s remarks were improper” and (2) “that they
prejudicially affected the defendant’s substantial rights so as
to deprive him of a fair trial.”
Id. (internal quotation marks
and alterations omitted). In evaluating whether the
prosecutor’s remarks prejudiced the defendant, we consider
several factors, including:
(1) the degree to which the prosecutor’s remarks had a
tendency to mislead the jury and to prejudice the
defendant; (2) whether the remarks were isolated or
extensive; (3) absent the remarks, the strength of
competent proof introduced to establish the guilt of
the defendant; [and] (4) whether the comments were
deliberately placed before the jury to divert
attention to extraneous matters . . . .
16
United States v. Scheetz, 293 F.3d 175, 186 (4th Cir. 2002);
United States v. Adam,
70 F.3d 776, 780 (4th Cir. 1995).
In the course of his closing argument, the prosecutor made
several comments that Holmes contends were unsupported or
misleading. First, Holmes objects to the prosecutor’s
arguments: (1) that Holmes admitted to the conspiracy when he
confessed to law enforcement officers in 1994 that his nephew
was selling drugs for him and when he confessed to DEA agents in
2002 to being a drug dealer; (2) that Holmes was involved in the
conspiracy with his nephew, Mitchell, Middleton, and Grant; (3)
that Mitchell admitted to being in a conspiracy with Holmes when
he testified that Holmes fronted him drugs; and (4) that the
$134,500 found in the car in Texas with Nesbitt and Holmes was
drug money. However, we find these arguments to have been
sufficiently supported by the testimony to be considered fair
comments upon the evidence. The evidence was sufficient to
establish that Holmes was involved in a conspiracy to distribute
drugs in Beaufort County with Nesbitt and a number of other
persons, including Holmes’ nephew, Mitchell, Middleton, and
Grant. The prosecutor remained within acceptable bounds in
arguing that the statements Holmes made to law enforcement
officers at the beginning and end of the conspiracy period could
fairly be construed, in conjunction with the other evidence, as
admissions on his part to having worked with others to supply
17
drugs to the area. And it was well within the permissible
limits for the prosecutor to argue that the $134,500, packaged
as drug money in a bag that smelled of drugs, had been near
drugs at some point in the past and was intended to be used to
purchase drugs in the future.
Second, Holmes claims that the prosecutor made three
misstatements regarding the evidence presented at trial. Holmes
asserts that the prosecutor erroneously represented to the jury
that no specific promises had been made to Livingston or Chisolm
in return for their testimony against Holmes. Holmes contends
that the prosecutor erroneously represented that Chisolm and
Scott had testified in a previous trial regarding their dealings
with Holmes. And, Holmes objects to the prosecutor’s statement
that when Chaplin told Nesbitt of Holmes’ arrest in Florida,
Nesbitt told Chaplin not to worry because they would take care
of it and get Holmes out of jail.
As to the prosecutor’s statements regarding the lack of
promises made to the witnesses, we find no error. Chisolm
testified that the government had promised that his cooperation
would be reported to the court and Livingston implied that he
expected some benefit if he cooperated. However, neither
statement or expectation is inconsistent with the prosecutor’s
correct representation that no specific promises had been made
to either man.
18
With regard to the remaining remarks, the prosecutor does
appear to have incorrectly expanded upon the testimony actually
elicited at trial. Although both Scott and Chisolm testified
that they had provided testimony in prior trials, Scott was not
asked whether his prior testimony included information about
Holmes and Chisolm was not asked about the specifics of his
prior testimony about Holmes. However, even if the prosecutor’s
remarks were improper, the comments did not “so infect[] the
trial with unfairness as to make the resulting conviction a
denial of due process.” Wilson, 135 F.3d at 297 (internal
quotation marks omitted). The remarks were brief and isolated,
there is no indication that the prosecutor offered the remarks
with an intention to mislead the jury or that they otherwise
diverted the jury’s attention from the evidence, and the proof
of guilt in the case was significant. In addition, the jury was
instructed that statements made by counsel were not to be
considered evidence in the case. See Bennett v. Angelone,
92
F.3d 1336, 1346-47 (4th Cir. 1996). Accordingly, we find no
reversible error in the prosecutor’s statements, nor can we
conclude that their cumulative effect warrants reversal. See
United States v. Martinez,
277 F.3d 517, 534 (4th Cir. 2002).
19
III.
A.
Holmes next argues that the district court erred in
sentencing him to life imprisonment under 21 U.S.C.A.
§ 841(b)(1)(A), because he did not have the requisite two prior
felony drug convictions.
Prior to trial, the government filed an information under
21 U.S.C.A. § 851, notifying Holmes that he was subject to an
enhanced sentence under § 841(b)(1)(A), based upon prior felony
drug convictions. At sentencing, the government introduced five
such convictions into evidence. The first three convictions
were obtained on August 17, 1994, and consisted of (1) a
conviction for distribution of crack on January 20, 1994, based
upon a controlled purchase made at Holmes’ Peaches Hill Road
residence in St. Helena; (2) a conviction for distribution of
crack on March 15, 1994, based upon a controlled purchase made
at the Peaches Hill Road residence; and (3) a conviction for
possession of cocaine with intent to distribute on March 19,
1994, when Beaufort County officers executed a search warrant at
Holmes’ Peaches Hill Road residence and seized cocaine and
crack. Holmes was sentenced to 12 years’ imprisonment for the
three convictions, suspended upon serving 6 years’ imprisonment
and 5 years’ probation. He was paroled on October 16, 1996, and
granted early termination of his probation on January 11, 1999.
20
The remaining two felony drug convictions were obtained on March
11, 2002, and consisted of (1) a conviction for possession of
crack cocaine on September 29, 2000, arising out of a search
warrant executed at Holmes’ residence at 527 Seaside Road, for
which he was sentenced to two years’ imprisonment, and (2) a
conviction for possession with intent to distribute crack
cocaine on April 16, 2001, arising out of the traffic stop for
which he was sentenced to six years’ imprisonment.
Holmes contends that the district court erred in counting
the 1994 felony convictions as separate offenses for purposes of
§ 841(b)(1)(A), and in relying upon any of the five convictions
as predicate offenses because they occurred during the
conspiracy period and were intrinsic to it. We disagree.
“[F]or purposes of 21 U.S.C. § 841(b) . . . , the term
‘prior convictions’ refers to ‘separate criminal episodes, not
separate convictions arising out of a single transaction.’”
United States v. Ford, 88 F.3d 1350, 1365 (4th Cir. 1996)
(quoting United States v. Blackwood,
913 F.2d 139, 145-46 (4th
Cir. 1990)). When evaluating whether convictions are from
separate and distinct criminal episodes, we consider, among
other things, whether the time between the crimes underlying the
convictions allowed the defendant sufficient time “to make a
conscious and knowing decision to engage in another drug sale.”
United States v. Letterlough,
63 F.3d 332, 337 (4th Cir. 1995)
21
(holding that sales of crack occurring nearly two hours apart
arose out of “separate and distinct criminal episodes”).
Here, the district court did not err in counting the three
1994 convictions as separate offenses. Holmes’ first two
convictions for distribution of crack arose from incidents
occurring nearly two months apart. The third conviction arose
from the execution of a search warrant four days after the
second controlled purchase was made. Clearly, the convictions
arose out of separate and distinct criminal episodes, even
though they may all have occurred “pursuant to a master plan to
sell crack cocaine as a business venture.” Id.
The fact that the prior felony drug offenses occurred
during the period of the conspiracy for which he was convicted
also does not entitle Holmes to relief. “When a defendant is
convicted of a drug conspiracy under 21 U.S.C. § 846, prior
felony drug convictions that fall within the conspiracy period
may be used to enhance the defendant’s sentence if the
conspiracy continued after his earlier convictions were final.”
Smith, 451 F.3d at 224-25. “[B]ecause the ‘purpose of the
mandatory minimum enhancement is to target recidivism, it is
more appropriate to focus on the degree of criminal activity
that occurs after the defendant’s conviction for drug-related
activity is final rather than when the conspiracy began.’”
United States v. Howard,
115 F.3d 1151, 1158 (4th Cir. 1997)
22
(quoting United States v. Hansley, 54 F.3d 709, 717 (11th Cir.
1995)).
Here, the government presented substantial evidence that
Holmes continued to engage in the conspiracy well after his 1994
convictions became final, most notably, evidence of all of the
drug distribution activities he engaged in after he was paroled
in 1996 including, but not limited to, the conduct that served
as the basis for the two 2002 convictions. Holmes’ continued
participation in the conspiracy after his prior drug convictions
became final “is precisely the type of recidivism to which
section 841 is addressed.” Howard, 115 F.3d at 1158.
B.
Holmes also contends that his counsel was ineffective in
failing to object to the use of his prior felony convictions to
impose the enhanced sentence under §§ 841(b)(1)(A) & 851.
However, claims of ineffective assistance of counsel must be
brought in a collateral proceeding under 28 U.S.C.A. § 2255
(West Supp. 2010) unless it conclusively appears from the face
of the record that his counsel was ineffective. See United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). In
light of our resolution of the issue above, Holmes has clearly
failed to make that showing here.
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C.
Holmes’ final contention is that the district court plainly
erred in failing to apply the sentencing guidelines and
sentencing factors under 18 U.S.C.A. § 3553(a), in accordance
with our decision in United States v. Green, 436 F.3d 449, 456
(4th Cir. 2006), thus requiring a remand for resentencing.
Based upon the total offense level and criminal history, as
calculated in his presentence report, Holmes’ guideline range
was 360 months to life imprisonment. However, because he had
two prior felony drug convictions, Holmes’ statutory mandatory
minimum sentence was life imprisonment under § 841(b)(1)(A),
which became his guideline sentence. At the sentencing
proceeding, the district court recognized that the guidelines
range was 360 months to life and that the guidelines and
§ 3553(a) factors would have given the court some discretion in
sentencing. However, the statutory, mandatory minimum sentence
provision based upon the prior felony drug offenses removed any
such discretion, rendering it unnecessary to specifically
address Holmes’ objections to the presentence report or the
§ 3553 factors. Instead, the district court adopted the
presentence report without change and correctly determined that
the mandatory minimum sentence of life imprisonment applied.
Although the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005), made the guidelines advisory, it
24
did not alter the mandatory nature of statutorily required
minimum sentences. See Green, 436 F.3d at 455-56; United States
v. Robinson,
404 F.3d 850, 862 (4th Cir. 2005). “Except upon
motion of the Government on the basis of substantial assistance,
a district court still may not depart below a statutory
minimum.”
Robinson, 404 F.3d at 862. Accordingly, we hold that
the district court did not plainly err in imposing Holmes’
sentence of life imprisonment, and Holmes is not entitled to
resentencing.
IV.
For the foregoing reasons, we affirm Holmes’ convictions
and sentence.
AFFIRMED
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