US v. Paul Holmes


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:08-cr-00604-CMC-1 Copies to all parties and the district court/agency. [998421116] [09-4663]

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US v. Paul Holmes Doc. 0 Case: 09-4663 Document: 54 Date Filed: 09/09/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4663 UNITED STATES OF AMERICA, Plaintiff Appellee, v. PAUL ANTHONY HOLMES, a/k/a Pauly, Defendant Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Cameron McGowan Currie, District Judge. (3:08-cr-00604-CMC-1) Submitted: August 5, 2010 Decided: September 9, 2010 Before SHEDD, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Marcia G. Shein, LAW OFFICES OF MARCIA G. SHEIN, P.C., Decatur, Georgia, for Appellant. Kevin F. McDonald, Acting United States Attorney, Jeffrey Mikell Johnson, Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Case: 09-4663 Document: 54 Date Filed: 09/09/2010 Page: 2 PER CURIAM: Paul Anthony Holmes appeals his sentence following a guilty plea to conspiracy to distribute one kilogram or more of heroin, in violation the of 21 U.S.C. 846 (2006). to give Holmes him a challenges district court's decision four-level role adjustment pursuant to USSG 3B1.1(a), and a two-level 3C1.1. obstruction of justice increase pursuant to USSG I. Role in the Offense This court reviews sentencing adjustments based on a defendant's role in the offense for clear error. United States v. Sayles, 296 F.3d 219, 224 (2002). We may affirm a sentence enhancement for any reason appearing in the record. United States v. Garnett, 243 F.3d 824, 830 (4th Cir. 2001). A defendant's offense level is to be increased by four levels "[i]f the defendant that was an organizer or or leader of a criminal activity involved five more participants." USSG 3B1.1(a). A "participant" is someone who can be held See "criminally responsible" for the commission of the offense. USSG 3B1.1 cmt. 4. The following factors should be considered in determining whether a role adjustment is warranted: (1) the exercise of decision making authority, (2) the nature of participation in the commission of the offense, (3) the recruitment of accomplices, (4) the 2 Case: 09-4663 Document: 54 Date Filed: 09/09/2010 Page: 3 claimed right to a larger share of the fruits of the crime, (5) the degree of participation in planning or organizing the offense, (6) the nature and scope of the illegal activity, and (7) the degree of control and authority exercised over others. See United States v. Kellam, 568 F.3d 125, 148 (4th Cir. 2009) (citing USSG 3B1.1 cmt. 4). However, a defendant need only exercise control over one other participant See USSG in order to cmt. be 2. deemed This a leader is "not or a organizer. 3B1.1 particularly onerous showing," requiring "only a conclusion that [the defendant] supervised at least one . . . participant," and it "does not require the court to identify specific examples." See United States v. Hamilton, 587 F.3d 1199, 1222 (10th Cir. 2009) (citations omitted). Moreover, once the court has determined that the defendant exercised some control over at least one participant, it need look no further into whether or not the defendant exercised control over others. Id. at 1223. Taking the record as a whole, there is ample evidence to support the district court's determination that Holmes was a leader or organizer of a criminal enterprise consisting of five or more people. First, the Government's unopposed summary of the evidence at Holmes' plea colloquy establishes that he was a part of a criminal conspiracy comprised of at least five individuals, and that his co-defendant, Shaheed Chaplin, was his "right hand person." While Holmes's acquiescence to these facts 3 Case: 09-4663 Document: 54 Date Filed: 09/09/2010 Page: 4 is arguably enough to establish not only the minimum threshold size of his organization, but also that he exercised control over Chaplin, thereby ending this Court's inquiry, the testimony offered claims. at sentencing largely substantiates the Government's Cf. United States v. Reid, 523 F.3d 310, 317 (4th Cir. 2008) ("buy-sell transaction[s]" and "continuing relationships," coupled with a large quantity of drugs, support an inference that the parties were co-conspirators) (citations omitted). Onza Lynch, a cooperating co-conspirator, whom the district court credited, made clear that there were at least eight individuals working for Holmes. co-conspirators included in the Moreover, the number of would no doubt organization increase dramatically if the court were to include the various other lower-level dealers that the testimony established Holmes supplied. Cf. United States v. Fells, 920 F.2d 1179, 1182-83 (4th Cir. 1990) (counting lower-level drug dealers, but not end users, in computation of organizational size). district court did not clearly err with Accordingly, the regard to its calculations of the size of Holmes' criminal enterprise. As for the level of control Holmes had over his cohorts, the testimony elicited at sentencing, as credited by the district court, clearly established that Holmes was a leader and/or organizer of his group. supplier to several street In addition to being the primary level 4 dealers and personally Case: 09-4663 Document: 54 Date Filed: 09/09/2010 Page: 5 trafficking large quantities of drugs, Holmes retained decisionmaking authority over his drugs and the people working under him. He set his own prices and negotiated arrangements with dealers as needed. Moreover, it is clear that lower-level Holmes possessed the initial knowledge necessary to package and distribute the drugs, which he passed on to his co-conspirators. Holmes screened new also decided to down who could if to work they for were as him. He dealers "laid determine the law" suitable to how candidates, and recruits financial obligations were to be handled. He provided other dealers with samples of his wares, made initial arrangements, and then passed them off to his underlings for day-to-day servicing, no doubt in an effort to lower his profile and/or reduce his criminal exposure. Holmes also clearly claimed a right to a larger share of the proceeds of his drug sales than his co-conspirators. The testimony of multiple witnesses indicated that Holmes would set his price and then "front" drugs to his dealers, essentially on credit, to sell for him; the dealers would make a profit only if they were able to sell the drugs for more than Holmes claimed as his own share. Invariably, the testimony indicated that Holmes made more off each transaction than his lower-level dealers did, and more importantly, it showed that Holmes took priority when it was time to "settle up." 5 Case: 09-4663 Document: 54 Date Filed: 09/09/2010 Page: 6 Holmes argues that the district court erred by giving him a four-level role adjustment because, he contends, the evidence does not establish that he is anything more than a mere seller of drugs. Holmes argues that because his relationships with Chaplin, Lynch, and the various other downstream dealers he supplied were informal and non-exclusive, and because he sold drugs on a consignment basis, he is somehow less of an organizer or leader. Holmes has failed to cite to any case or authority that would tend to indicate that either of these factors has any direct bearing on whether or not he is a leader or organizer of the conspiracy to which he plead guilty. This court has never held that a criminal enterprise must have a rigid structure or be the only criminal enterprise its members are a part of before conspiratorial criminal liability can attach. 858 (4th executed Cir. with 1996) Cf. United States v. Burgos, 94 F.3d 849, (en banc) the ("while fact many a conspiracies conspiracy are is precision, that loosely-knit, haphazard, or ill-conceived does not render it any less a conspiracy -- or any less unlawful"). Thus, it would seem counterintuitive to allow an organizer of such a conspiracy to escape liability nature simply of by virtue plans. of As the "loose-knit" above, or "haphazard" his stated under 3B1.1, the Government need only establish that a defendant 6 Case: 09-4663 Document: 54 Date Filed: 09/09/2010 Page: 7 exercised control over one of his co-conspirators, not that he exercised rigid or exclusive control over any of them. Moreover, the selling of drugs on consignment does not create a wall between a seller and his downstream A co-conspirators in the way that Holmes seems to contend. dealer who consigns or "fronts" drugs to a lower-level dealer with the expectation that the drugs will be sold and he will be repaid from the proceeds of those retail sales "overstep[s] a mere seller's role," and assumes a control position. States v. Pena, 67 F.3d 153, 156 (8th Cir. See United United 1995); States v. Atkinson, 85 F.3d 376, 378 (8th Cir. 1996). Thus, Holmes cannot hide behind the structure of his arrangements leadership with his in underlings this to insulate himself to from what liability conspiracy. Contrary Holmes argues, the nature of his arrangements only supports the conclusion that he retained control, not that he relinquished it. Accordingly, we find that the district court did not clearly err in giving Holmes a four-level adjustment for his role in the conspiracy. * Holmes has also argued that the district court erred by not explicitly considering a lesser enhancement under USSG 3B1.1(b) or (c); however, Holmes has failed to cite to any authority to support this argument and we are not aware of any. Under these circumstances, we think a lesser enhancement under either subsection (b) or (c) would have been inappropriate. 7 * Case: 09-4663 Document: 54 Date Filed: 09/09/2010 Page: 8 II. Holmes has Obstruction of Justice also challenged the district court's two-level enhancement for obstruction of justice under 3C1.1. The enhancement was based on the court's findings that while Holmes and a co-conspirator, Lynch, were incarcerated at the same facility, Holmes threatened to expose Lynch as a government snitch if Lynch for a testified $25,000 against for him, and that Holmes if had arranged bounty Lynch's murder Lynch continued to cooperate with the authorities. the court failed to give him adequate Holmes maintains that it would notice consider the enhancement, and that the uncorroborated testimony of Lynch was an insufficient basis to find that he qualified for the enhancement. Holmes' Both arguments lack merit. arguments concerning the sufficiency of the evidence are reviewed for clear error. 401 F.3d 540, 560 (4th Cir. 2005). United States v. Hughes, We believe there is ample evidence in the record to support Holmes' two-level enhancement for threatening Lynch. The main thrust of Holmes' argument is to contest Lynch's credibility and to insist that he not be believed in the absence of corroborative evidence. However, there is, of course, no requirement that the Government provide corroboration for Lynch's testimony, and this Court will not substitute its 8 Case: 09-4663 Document: 54 Date Filed: 09/09/2010 Page: 9 credibility determinations for that of the district court. United States v. Murray, 65 F.3d 1161, 1165 (4th Cir. 1995). Even $25,000 bounty without on his Lynch's head, testimony Holmes' that Holmes more Cf. put a own words than adequately establish that he threatened Lynch with the intent to intimidate him or prevent him from testifying. In a letter to the district court, Holmes admitted calling Lynch a "snitch" and a "rat," and threatening to expose Lynch as such in the prison yard. This of alone is an adequate ground See to support States an v. obstruction justice enhancement. United Jackson, 974 F.2d 104, 105-106 (9th Cir. 1992) (disseminating information that a cooperating witness is a "snitch" and a "rat" to others can "potentially chill [the witness'] willingness to testify"); United States v. Hurst, 228 F.3d 751, 761-62 (6th Cir. 2000) (inciting other inmates to harm cooperating witness warranted obstruction enhancement). court did not clearly err by Accordingly, the district that Holmes obstructed finding justice. In support of his alternate argument, that the district court erred by failing to give him reasonable notice that it would consider imposing an obstruction enhancement, Holmes cites to Federal Rule of Criminal Procedure 32(h), which states that: 9 Case: 09-4663 Document: 54 Date Filed: 09/09/2010 Page: 10 Before the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party's prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure. The notice must specify any ground on which the court is contemplating a departure. The applies only Government to counters by arguing that an that Rule 32(h) under "departures," and adjustment 3C1.1 is not a "departure," but instead an inherent part of a defendant's guideline sentence, and that no notice was required. We need not address the Government's claim at this time, as Holmes has failed to show a reversible error in any event. Because court's allegedly Holmes failed to object below, to the district must inadequate notice this Court review for plain error. 273, 276 (4th Cir. 2007). See United States v. McClung, 483 F.3d To establish plain error, Holmes must show that an error (1) was made, (2) is plain (i.e., clear or obvious), States v. and (3) affects 564 his F.3d substantial 337, 342-43 rights. (4th Cir. United 2009). Massenburg, Even if Holmes makes this three-part showing, this Court may exercise its discretion to correct the error only if it "seriously affects the fairness, integrity or public reputation of judicial proceedings." omitted). Even assuming that the district court was required to provide notice to Holmes and that its notice was inadequate, 10 Id. at 343 (internal quotation marks Case: 09-4663 Document: 54 Date Filed: 09/09/2010 Page: 11 Holmes has still not shown that the court's alleged failing affected his substantial rights. Holmes does not substantively address the fact that his own letter sealed his fate just as much as the testimony of Lynch did, except to say in completely conclusory fashion that had he received notice, "it very likely would have affected the outcome of the sentencing proceeding." At no point does Holmes ever explain how receiving notice, assuming he was entitled to receive it, would have changed the fact that he admitted to behavior justifying the enhancement. Therefore, Holmes has failed to carry his burden of establishing that the district court committed plain error by failing to notify him that it might enhance his sentence for obstructing justice. Accordingly, we affirm the district court's judgment. 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 11

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