US v. Rahsean Holmes

Filing 920100430

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4946

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. RAHSEAN HOLMES, a/k/a Ox, Defendant ­ Appellant.

No. 09-4313

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. ANTIONE BOYCE, a/k/a Dallas, Defendant ­ Appellant.

Appeals from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (1:07-cr-00383-CCB-1; 1:07-cr-00383-CCB-3)

Submitted:

March 4, 2010

Decided:

April 30, 2010

Before NIEMEYER, KING, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas J. Saunders, LAW OFFICE OF THOMAS J. SAUNDERS, Baltimore, Maryland; Michael Lawlor, LAWLOR & ENGLERT, LLC, Greenbelt, Maryland, for Appellants. Rod J. Rosenstein, United States Attorney, Michael C. Hanlon, Assistant United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM: Rahsean Holmes was convicted after a jury trial of two counts of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. §§ 2, 1951(a) (2006), one count of possession of firearms by a convicted felon, in violation of 18 U.S.C. §§ 2, 922(g)(1) (2006), one count of conspiracy to distribute and

possess with the intent to distribute cocaine, in violation of 21 U.S.C. § 846 (2006), and one count of possession of firearms in furtherance of a crime of violence and a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (2006). The district Antione count of of

court sentenced Holmes to 420 months' imprisonment. Boyce was convicted to commit after Hobbs a jury Act trial of in one

conspiracy

robbery,

violation

18 U.S.C. § 1951(a), one count of possession of firearms by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), one

count of possession of firearms in furtherance of a crime of violence and a drug trafficking crime, in violation of 18 U.S.C. § 924(c), and one count of conspiracy to distribute and possess with the intent to distribute cocaine, in violation of 21 U.S.C. § 846. The district court sentenced Boyce to 210 months'

imprisonment, a prison term that includes a 60-month consecutive sentence on the § 924(c) count. convictions and sentences. Holmes and Boyce appeal their

We affirm.

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Holmes

and

Boyce

first

contend

that

the

§ 1951(a)

counts were constructively amended by the district court's jury instructions, Fifth rendering those convictions because invalid the under the court

Amendment.

Additionally,

district

instructed the jury that it could convict on the § 924(c) counts if it found that Holmes and Boyce possessed firearms to further their § 1951(a) violations, they contend that the district

court's Fifth Amendment error warrants reversal of the § 924(c) counts as well. A These claims are without merit. defendant may only be tried on charges

criminal

alleged in an indictment, and "only the grand jury may broaden or alter the charges in the indictment." United States v.

Randall, 171 F.3d 195, 203 (4th Cir. 1999).

"A constructive

amendment to an indictment occurs when . . . the court (usually through possible its bases instructions for to the beyond jury) . . . broadens those presented by the the

conviction

grand jury," which results in a "fatal variance[] because `the indictment charged, crime is altered that the that to change the is elements actually of the offense of a

such

defendant charged in

convicted

other

than

the

indictment.'"

United

States v. Foster, 507 F.3d 233, 242 (4th Cir. 2007) (quoting Randall, 171 F.3d at 203 (internal quotation marks omitted)). Constructive amendments are "error per se and, given the Fifth Amendment right to be indicted 4 by a grand jury, `must be

corrected on appeal even when not preserved by objection.'"

Id.

(quoting United States v. Floresca, 38 F.3d 706, 714 (4th Cir. 1994) (en banc)). and jury However, not every rises it the is variance to the between level of an a

indictment constructive "when the

instructions Indeed, in

amendment.

well-established [but]

that the

Government

charges

conjunctive,

statute [at issue] is worded in the disjunctive, the district court can instruct the jury in the disjunctive" without

constructively amending the indictment. 560 F.3d 246, 256 (4th Cir.), cert.

United States v. Perry, denied, 130 S. Ct. 177

(2009).

Instructing otherwise would "improperly add elements to United

the crime that are not contained in the statute itself." States v. Montgomery, 262 F.3d 233, 242 (4th Cir. 2001).

Here, although the indictment charged Holmes and Boyce with conspiring to "obstruct, delay, and affect commerce" by robbery, the pertinent statute, 18 U.S.C. § 1951(a), is phrased disjunctively, those counts the and the district the court court's jury instructions on

tracked district

statutory did not

language.

Accordingly, amend the

because

constructively Holmes'

indictment

as

to

the

§ 1951(a)

counts,

and

Boyce's

claims of Fifth Amendment error fail. Next, Holmes contends that the district court erred in denying his pre-trial request to represent himself. Although a

criminal defendant has the right to represent himself at trial, 5

Faretta v. California, 422 U.S. 806, 819-20 & n.15 (1975), his assertion of that right must be "(1) clear and unequivocal; (2) knowing, States intelligent v. Bush, 404 and voluntary; 263, and (3) timely," Cir. United A

F.3d

271

(4th

2005).

deprivation of the right to self-representation is a structural error that requires automatic reversal because the impact of "its denial is not amenable to `harmless error' analysis."

McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984). After review of the record, we conclude that Holmes did not clearly and unequivocally invoke his right to self-

representation.

A little over two weeks prior to the start of

trial, Holmes' mother filed a motion on his behalf, requesting the dismissal of Holmes' court-appointed counsel, the

appointment of new counsel for Holmes, and a delay in the trial start date. At a hearing on the motion, Holmes but when voiced asked

complaints

concerning

counsel's

performance,

directly by the district court whether he wanted to represent himself, Holmes only reiterated his request for new counsel. Holmes also concurred with the district court that self-

representation would be "foolish" and conceded that he was not equipped to represent himself. willingness to represent Although Holmes did voice some he never explicitly and

himself,

unequivocally requested to do so.

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Holmes also claims that the district court erred in denying his motion to suppress evidence seized during a vehicle search (2006). in and in enhancing his sentence under 21 U.S.C. § 851

However, because Holmes fails to support these claims with Fed. R. App. P. 28(a)(9)(A) ("[T]he

accordance

[appellant's] contentions authorities relies."), and and we

argument . . . must the reasons of for

contain . . . appellant's with on See citations the v. to the

them,

parts

the

record

which

appellant City of

deem

them

abandoned.

Edwards

Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999) ("Failure to comply with the with specific respect dictates to a of [Fed. R. App. P.

28(a)(9)(A)]

particular

claim

triggers

abandonment of that claim on appeal."); 11126 Baltimore Blvd., Inc. v. Prince George's County, 58 F.3d 988, 993 n.7

(4th Cir. 1995) (en banc) (involving the predecessor to Fed. R. App. P. 28(a)(9)(A)), abrogated on other grounds by, City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004); see also Rosenberger v. Rector & Visitors of Univ. of Va., 18 F.3d 269, 276 (4th Cir. 1994) (concluding that where the parties fail to support their claims with contentions and citations to the record, such failure precludes this court from considering those claims), rev'd on other grounds, 515 U.S. 819 (1995). Boyce also challenges the district court's enhancement under 21 U.S.C. § 851 of his sentence on the § 846 conspiracy 7

count.

He argues first that the enhancement violates the Fifth because the predicate under § 851 felony were convictions not referenced used in to the

Amendment enhance

his

sentence

indictment.

However, this claim fails under controlling circuit

precedent, see United States v. Thompson, 421 F.3d 278, 284 n.4 (4th Cir. 2005) (holding that an indictment need not reference or list the prior convictions used to enhance a sentence);

United States v. Cheek, 415 F.3d 349, 352-54 (4th Cir. 2005) (holding that prior convictions used as the basis for an armed career criminal sentence need not be charged in indictment or proven beyond a reasonable doubt). Boyce also argues that the § 851 enhancement violates the Sixth Amendment. Court has held that Although Boyce recognizes that the Supreme the Government need not plead a prior

conviction in an indictment or present such evidence to a jury in order to rely on it to enhance a sentence, see

Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 247 (1998), he asserts that the precedential value of AlmendarezTorres is open to question, relying on Apprendi v. New Jersey, 530 U.S. 466, 489 (2000) ("[I]t is arguable that AlmendarezTorres was incorrectly decided."), Shepard v. United States, 544 U.S. 13, 27 (2005) (Thomas, J., concurring) (stating that "a majority of the [Supreme] Court now recognizes that AlmendarezTorres was wrongly decided"), and Blakely v. Washington, 542 8

U.S. 296, 304 (2004) ("When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment, and the judge exceeds his proper authority." (internal quotation

marks and citation omitted)). Almendarez-Torres may no

Though many defendants argue that be good law, Booker clearly

longer

maintained the prior conviction exception, see United States v. Booker, 543 U.S. 220, 244 (2005) ("Any fact (other than a prior conviction) [that] is necessary to support a sentence . . . must be admitted by the defendant or proved to a jury."), and this court has confirmed that Almendarez-Torres was not overruled by either Apprendi or Booker and remains the law. Cheek, 415 F.3d

at 353; United States v. Sterling, 283 F.3d 216, 220 (4th Cir. 2002). Finally, Boyce argues that the district court erred in imposing a consecutive, 60-month mandatory minimum prison term on his § 924(c) conviction. Section 924(c)(1)(A) of Title 18

provides, in relevant part, for a mandatory minimum sentencing schedule, sentence "[e]xcept is to the extent by that a greater or minimum by any

otherwise

provided

this

subsection

other provision of law."

In light of this clause, Boyce argues

that the district court erred in imposing the 60-month sentence because he was already subject to a ten-year mandatory minimum sentence due to his conviction on the § 846 count and his prior 9

drug convictions.

Boyce correctly concedes, however, that the

argument he advances is foreclosed by United States v. Studifin, 240 F.3d 415 (4th Cir. 2001). Although Boyce suggests that

Studifin should be re-examined, "a panel of this court cannot overrule, explicitly or implicitly, the precedent set by a prior panel of this court. Only the Supreme Court or this court Scotts Co. v. United Indus.

sitting en banc can do that."

Corp., 315 F.3d 264, 271 n.2 (4th Cir. 2002) (internal quotation marks omitted). Accordingly, we affirm the district court's judgments and deny Boyce's motion for abeyance. We dispense with oral

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

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