US v. Thessalonias Holmes

Filing 920100528

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4869

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. THESSALONIAS ANRE HOLMES, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Aiken. Margaret B. Seymour, District Judge. (1:07-cr-00317-MBS-1)

Submitted:

May 5, 2010

Decided:

May 28, 2010

Before MOTZ, AGEE, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

John C. Neiman, Jr., BRADLEY ARANT BOULT CUMMINGS LLP, Birmingham, Alabama, for Appellant. John David Rowell, Assistant United States Attorney, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Thessalonias sentence of 121 A. Holmes imposed appeals after his he conviction pled guilty and to

months,

possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) (2006). pursuant to Anders whether v. the Appellate counsel has filed a brief California, United 386 U.S. 738 (1967), plea

questioning

States

breached

its

agreement in failing to move to reduce Holmes's sentence under Rule 35(b) of the Federal Rules of Criminal Procedure or 18 U.S.C. § 3553(e) (2006), but concluding there are no meritorious grounds for appeal. Holmes filed a pro se supplemental brief, The Government elected not to file a

raising the same issue. brief.

We previously placed this case in abeyance pending the As our mandate removed from

outcome of United States v. Peake, No. 08-5132. has now issued in Peake, this case has been

abeyance, and is ripe for review. When a claim of breach of a plea agreement has been preserved, we review the district court's factual findings for clear error and its "application of principles of contract

interpretation de novo." 342 (4th Cir. 2001).

United States v. Bowe, 257 F.3d 336,

However, because Holmes did not claim in

the district court that the Government had breached the plea agreement, appellate review in this case is for plain error. Puckett v. United States, 129 S. Ct. 1423, 1428 (2009). 2

Plea agreements are grounded in contract law, and both parties should receive the benefit of their bargain. F.3d at 345. promise it Bowe, 257

The government breaches the plea agreement when a made to induce the plea goes unfulfilled. Because of

Santobello v. New York, 404 U.S. 257, 262 (1971).

constitutional and supervisory concerns, the government is held to a greater degree of responsibility for imprecision or

ambiguities in plea agreements. F.2d 294, 300-01 (4th Cir.

United States v. Harvey, 791 Where an agreement is

1986).

ambiguous in its terms, the terms must be construed against the government. Id. at 300, 303. However, "[w]hile the

[g]overnment must be held to the promises it made, it will not be bound to those it did not make." 792 F.2d 461, 464-65 (4th Cir. United States v. Fentress, After reviewing the

1986).

record, we find that the Government's failure to move for a downward departure or reduction in sentence was not in breach of the plea agreement. Accordingly, this issue is without merit.

In reviewing the remainder of the record, we note that Holmes's sentence appears procedurally unreasonable, as the

district court failed to provide any explanation for imposing the sentence it did. We recently held, in United States v.

Carter, 564 F.3d 325 (4th Cir. 2009), that a district court must conduct an "individualized assessment" of the particular facts of every sentence, on the record, whether the court imposes a 3

sentence above, below, or within the guidelines range. 330. Here, the district court summarized its

Id. at for

reasons

Holmes's sentence as follows: Mr. Holmes, having calculated and considered the advisory sentencing guidelines and having also considered the relevant statutory sentencing factors that are contained in Title 18, United States Code Section 3553(a), it is the judgment of the court that the Defendant, Thessalonias Anre Holmes, is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a term of 121 months. The findings of fact of the presentence report are adopted as the reasons for the sentence and they are incorporated by reference. Except for noting that its sentence was based on the findings of fact in the presentence report, the district court failed to provide any reasons why a guidelines sentence was

appropriate for Holmes or why it chose to sentence him at the low end of the advisory guideline range. that the district court failed to Therefore, it is clear an individualized

provide

assessment as required by Carter. However, Holmes did not object to the adequacy of the district court's explanation in the district court. defendant does not object to a district court's Where a to

failure

explain an imposed sentence, or otherwise preserve the issue for review by requesting a sentence shorter than the one he

received, our review is for plain error.

See United States v.

4

Lynn, 592 F.3d 572, 578-79 (4th Cir. 2010). review,

Under plain error

[A]n appellate court may correct an error not brought to the attention of the trial court if (1) there is an error (2) that is plain and (3) that affects substantial rights. If all three of these conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Carr, 303 F.3d 539, 543 (4th Cir. 2002)

(internal quotation marks, citations, and alterations omitted). In the sentencing context, an error affects substantial rights if the defendant can show that the sentence imposed "was longer than that v. to which he would 404 otherwise 834, be 849 subject." (4th Cir. United 2005) After

States

Washington, quotation

F.3d and

(internal

marks

citation

omitted).

reviewing the proceedings, we conclude any error the district court may have committed in failing to adequately explain

Holmes's sentence did not affect Holmes's substantial rights, and is therefore not cognizable on appeal. We have reviewed the entire record in accordance with Anders appeal. court. writing, and have not identified any meritorious issues for

Accordingly, we affirm the judgment of the district This of court requires to counsel the to inform Holmes, of in the

his

right

petition

Supreme

Court

United States for further review. 5

If the client requests such

petition be filed, but counsel believes that doing so would be frivolous, counsel may move this court to withdraw from

representation.

Counsel's motion must state that a copy of the We dispense with oral argument

motion was served on the client.

because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED

6