Case: 20-20146      Document: 00515581046         Page: 1    Date Filed: 09/28/2020




              United States Court of Appeals
                   for the Fifth Circuit                               United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                                                      September 28, 2020
                                  No. 20-20146
                                Summary Calendar                         Lyle W. Cayce
                                                                              Clerk


   United States of America,

                                                             Plaintiff—Appellee,

                                       versus

   Marquis Holmes, also known as Goldie,

                                                          Defendant—Appellant.


                  Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 4:18-CR-311-1


   Before Haynes, Willett, and Ho, Circuit Judges.
   Per Curiam:*
          Marquis Holmes pleaded guilty to a multi-count superseding
   information in connection with his role in a sex trafficking conspiracy and was
   sentenced to 420 months in prison. He now appeals, arguing that his guilty




          *
            Pursuant to 5th Circuit Rule 47.5, the court has determined that this
   opinion should not be published and is not precedent except under the limited
   circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-20146      Document: 00515581046          Page: 2    Date Filed: 09/28/2020




                                    No. 20-20146


   plea was invalid and that the district court improperly found the relevant
   sentencing facts by only a preponderance of the evidence.
          Plain error review applies to Holmes’s unpreserved challenge to the
   validity of his guilty plea. See Puckett v. United States, 

, 135
   (2009). Under this standard, he must show a clear or obvious error that
   affects his substantial rights. See

his burden, this court may
   exercise its discretion to grant relief only if the error seriously affects “the
   fairness, integrity or public reputation of judicial proceedings.”

and citation omitted). Holmes argues he did not waive his
   right to prosecution by indictment and that his guilty plea was therefore
   invalid. However, Holmes implicitly waived indictment by pleading guilty to
   the superseding information after the Government had already obtained a
   valid indictment. See United States v. Gaudet, 

, 590 (5th Cir.
   1996). Accordingly, Holmes has not demonstrated any error, and certainly
   not clear or obvious error. Even if he were able to show a clear or obvious
   error, Holmes has not asserted that he would not have pleaded guilty but for
   the error. As a result, he could not establish that the alleged error affected
   his substantial rights. See United States v. Dominguez Benitez, 

, 83
   (2004).
          Holmes’s argument regarding the applicable standard of proof at
   sentencing is also unavailing. Generally, “the burden of proof at sentencing
   is by a preponderance of the evidence.” United States v. Brooks, 

,
   712 (5th Cir. 2012) (internal quotation marks and citation omitted). Although
   this court has suggested there could be cases where due process requires a
   higher burden of proof, “the Fifth Circuit has never required such a
   heightened burden.”

We need not decide that issue, however, as
   Holmes’s arguments that the heightened standard should apply to his case
   fail to show error in that he wholly fails to address how the outcome would




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                                     No. 20-20146


   have been any different under a different standard of proof, particularly in
   light of his brief’s factual admissions.
          The district court’s judgment is AFFIRMED.




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