US v. Holmes

Filing 920100622

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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, Judges.

Chief

Judge,

and

NIEMEYER

and

AGEE,

Circuit

Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 We affirm.

1999 & Supp. 2010).

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. the conspiracy, the government who were presented in the the To prove of

testimony

numerous

witnesses

involved

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 during all this testified time that they purchased crack from Holmes that

period.

Livingston

further

testified

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 Holmes May on a 1993, Beaufort County police a officers search of arrested Holmes'

fugitive

warrant.

During

vehicle, the officers found crack weighing approximately 2.73 grams. In January 1994, law enforcement officers arranged a In March

controlled purchase of crack at Holmes' residence. 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. began purchasing powder cocaine from Holmes.
1

In 1998, Chaplin He made two nine-

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. the shipment had Upon arrival, however, Chaplin was told that 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 and a traffic stop. four Chaplin, ounces of who was

driving,

accelerated

Holmes

threw

crack,

which he had just given to Chaplin in further repayment of the debt, out of the window of the vehicle. with failure to stop for a blue light. walked back A to retrieve days the crack Holmes he Chaplin was charged

Holmes was released and had thrown the from crack the to

vehicle. Chaplin.

few

later,

returned

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 According to Middleton, "a

"working for Mr. Holmes."

J.A. 342.

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. dealing

Eventually, Holmes "got tired of it" and "stopped Middleton. J.A. 344. Middleton then began

with"

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." 462. J.A.

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 Seaside controlled Road. purchase of crack later, at the Holmes' residence executed at a

Several

days

officers

search warrant at the residence. his bedroom blades with were crack.

The officers found Holmes in crack, of Ziploc Holmes' bags, and roommate,

Additional the

razor

found in

bedroom

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. residue, Ziploc Officers found digital scales with cocaine razor blades, and over $2,000 in cash

bags,

wrapped around three driver's licenses in the truck. 5.94 grams of crack was seized during the

A total of of the

search

residence. On April 16, 2001, Beaufort County Sheriff's officers Holmes

observed Holmes' vehicle blocking traffic in a roadway. and Chaplin were in the vehicle. initiate a traffic stop,

When the officers attempted to failed to stop. While in

Holmes

pursuit, the officers observed Holmes throwing crack out of the vehicle's window. The total weight of the crack later retrieved Nesbitt came to the

by law enforcement officers was 1.58 grams.

7

scene of the stop and made eye contact with Holmes but did not communicate verbally with him. On Houston, vehicle June 14, a 2001, known a narcotics source city and interdiction for two patrol near a

Texas, carrying of

cocaine, others.

stopped When to

Nesbitt, vehicle

Holmes, gave

the the

occupants

the

conflicting

stories

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." On April 14, J.A. 499. 2 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 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.
2

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. 9

See United States v. Smith, 451

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 94 v. by "substantial 849, 862 (4th evidence." Cir. 315 1996) U.S. United (en 60, States v.

Burgos, Glasser

F.3d

banc) 80

(citing (1942)).

United

States,

"[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: an agreement between two or more (1) the existence of to distribute and

persons

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 "By

States v. Yearwood, 518 F.3d 220, 225-26 (4th Cir. 2008).

its very nature, a conspiracy is clandestine and covert, thereby frequently agreement." resulting Burgos, in 94 little F.3d direct at 857. evidence of such an the

Consequently,

"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 Id. at "[O]ne

attitude and conduct, and the nature of the conspiracy." 858 (internal quotation marks and alterations omitted).

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." (internal quotation marks omitted). Id.

It is also not necessary to Id.

prove "a discrete, identifiable organizational structure." (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." marks and alterations omitted).

Id. (internal quotation

"[T]he fact that a conspiracy

is loosely-knit, haphazard, or ill-conceived does not render it any less a conspiracy­or 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. 462. Nesbitt and his truck, with drug paraphernalia, J.A. 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. There was also substantial evidence J.A. 644. 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 Livingston for sale.

officers that his nephew was dealing drugs for him. testified that Holmes was fronting 12 him drugs

Middleton testified that he worked for Holmes in the late 1990s, and that Holmes fronted him drugs for sale as well. testified crack. that she brought buyers to Holmes for Moultrie in

payment

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 spread shared in the same objectives, distribution methods and

geographic

their

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. of Ferguson's for

Specifically, Holmes challenges the admission that Nesbitt for $200, at said he and led Holmes had to Ferguson and

testimony at 7

crack

sale the

grams from

which the

purchasing

drugs

Holmes

quoted

price,

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 See

objection at trial, however, we review for plain error.

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." omitted).

Id.

(internal

quotation

marks

and

alteration

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. and in Because Nesbitt's statements were made in the course of the conspiracy, they were clearly

furtherance

admissible under Rule 801(d)(2)(E). C. Holmes next contends that various comments the prosecutor made during Because closing was arguments no deprived him of a fair made trial. to the

there

contemporaneous

objection

statements, we review for plain error. 731-32.

See Olano, 507 U.S. at

"[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." (4th Cir. 2009) United States v. Johnson, 587 F.3d 625, 632 (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." quotation marks omitted). Id. (internal

"To be sure, there are some lines 15

that

prosecutors

may

not

cross. for

But minor

to

parse

through

a

prosecutor's sight engage of the

closing

statement of in our a

infelicities which Id.

loses is at to 633

function views

adversary vigorous

system,

opposing

manner."

(citation omitted); see also Bates v. Lee, 308 F.3d 411, 422 (4th Cir. 2002). We apply "a two-pronged in as test for determining `so whether a

prosecutor's trial with

misconduct unfairness

closing to make

argument the

infected

the a

resulting

conviction

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 were must demonstrate and (1) "that "that the they

prosecutor's

remarks

improper"

(2)

prejudicially affected the defendant's substantial rights so as to deprive him of a fair trial." and alterations omitted). prejudiced Id. (internal quotation marks In the evaluating defendant, whether we the

prosecutor's

remarks

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 Holmes contends objects were to unsupported or

misleading.

First,

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, Grant. arguing including The that Holmes' nephew, Mitchell, Middleton, bounds and in

prosecutor the

remained

within made

acceptable to law

statements

Holmes

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 Holmes

misstatements regarding the evidence presented at trial.

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. that the prosecutor erroneously represented Holmes contends 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 denial with of unfairness due as to make the 135 resulting F.3d at conviction 297 a

process."

Wilson,

(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. instructed that statements made by In addition, the jury was counsel were not to be

considered evidence in the case.

See Bennett v. Angelone, 92 Accordingly, we find no statements, nor can we See

F.3d 1336, 1346-47 (4th Cir. 1996). reversible error in the prosecutor's

conclude that their cumulative effect warrants reversal. United States v. Martinez, 277 F.3d 517, 534 (4th Cir. 2002).

19

III. A. Holmes sentencing next him argues to life that the district court 21 erred in

imprisonment

under

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 The first three convictions and consisted of (1) a

such convictions into evidence. were obtained on August 17,

1994,

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' crack. Peaches Hill Road residence and seized cocaine and

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 § as 841(b)(1)(A), and in relying upon any of the five convictions 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 United convictions v. arising 88 out F.3d of a single 1365 transaction.'" Cir. 1996)

States

Ford,

1350,

(4th

(quoting United States v. Blackwood, 913 F.2d 139, 145-46 (4th Cir. 1990)). and When evaluating criminal whether convictions we are from among

separate

distinct

episodes,

consider,

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 for as separate offenses. of crack Holmes' arose from first two

convictions

distribution

incidents

occurring nearly two months apart. from the execution of a search

The third conviction arose four days after the

warrant

second controlled purchase was made. arose out of separate and distinct

Clearly, the convictions criminal episodes, even

though they may all have occurred "pursuant to a master plan to sell crack cocaine as a business venture." The fact that the prior felony Id. offenses occurred

drug

during the period of the conspiracy for which he was convicted also does not entitle Holmes to relief. convicted of a drug conspiracy under 21 "When a defendant is 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 In

States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).

light of our resolution of the issue above, Holmes has clearly failed to make that showing here.

23

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 which sentence became his was life imprisonment sentence. under At § 841(b)(1)(A), the sentencing

guideline

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, Holmes' factors. rendering objections Instead, it to unnecessary the to specifically or the the

address § 3553

presentence

report

the

district

court

adopted

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 "Except upon

v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005).

motion of the Government on the basis of substantial assistance, a district court still may not depart below a statutory

minimum." the

Robinson, 404 F.3d at 862. court did not plainly

Accordingly, we hold that err in imposing Holmes'

district

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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