United States v. Timothy Holmes ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4439
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY GARRETT HOLMES, a/k/a Hot Pocket,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Anderson. J. Michelle Childs, District Judge. (8:17-cr-00676-JMC-13)
Submitted: December 18, 2018 Decided: December 20, 2018
Before AGEE, THACKER and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lora Blanchard, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Greenville, South Carolina, for Appellant. Andrew Burke
Moorman, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy Garrett Holmes pled guilty, without a written plea agreement, to
conspiracy to possess with intent to distribute and to distribute 50 grams or more of a
substance containing methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)
(2012), and was sentenced to 120 months’ imprisonment and 8 years’ supervised
release. ∗ On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), stating that there are no meritorious issues for appeal, but questioning
whether Holmes’ sentence is reasonable. Holmes filed a pro se supplemental brief
claiming that he received ineffective assistance of counsel and that the district court did
not sufficiently explain its sentence in light of the 18 U.S.C. § 3553(a) (2012) factors, did
not consider Holmes’ nonfrivolous reasons for a lower sentence, misinterpreted the
Sentencing Guidelines, and attributed the wrong quantity of drugs to Holmes. The
Government declined to file a response brief. We affirm.
“We review the reasonableness of a sentence under 18 U.S.C. § 3553(a) using an
abuse-of-discretion standard, regardless of whether the sentence is inside, just outside, or
significantly outside the Guidelines range.” United States v. Lymas, 781 F.3d 106, 111
(4th Cir. 2015) (citing Gall v. United States, 552 U.S. 38, 41 (2007) (alteration and
internal quotation marks omitted)). This review requires consideration of both the
∗
In a related case, No. 8:17-cr-00097-01, Holmes pled guilty to possession of a
firearm and ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2) (2012), and was sentenced to 120 months’ incarceration and 3 years’
supervised release, to run concurrently with his sentence in the instant case. Holmes did
not appeal that conviction or sentence.
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procedural and substantive reasonableness of the sentence. Id. In determining procedural
reasonableness, we consider whether the district court properly calculated the defendant’s
advisory Guidelines range, gave the parties an opportunity to argue for an appropriate
sentence, considered the 18 U.S.C. § 3553(a) sentencing factors, and sufficiently
explained the selected sentence. Id. at 111-12. After determining that the sentence is
procedurally reasonable, we consider the substantive reasonableness of the sentence,
“tak[ing] into account the totality of the circumstances.” Gall, 552 U.S. at 51.
Our review of the sentencing transcript reveals no significant procedural or
substantive errors. The district court accurately calculated Holmes’ advisory Guidelines
range and gave the parties the opportunity to present argument and Holmes the
opportunity to allocute. The court then sentenced Holmes to 120 months’ imprisonment
and 8 years’ supervised release—the mandatory minimum sentence for which Holmes,
who has a prior felony drug conviction, was eligible. See 21 U.S.C. § 841(a)(1),
(b)(1)(B).
As to Holmes’ claim that he received ineffective assistance of counsel, we do not
consider ineffective assistance claims on direct appeal “[u]nless an attorney’s
ineffectiveness conclusively appears on the face of the record.” United States v. Faulls,
821 F.3d 502, 507-08 (4th Cir. 2016). Indeed, a defense attorney should be given an
opportunity to address the reasons for his or her action or inaction, and the record should
be more fully developed, before addressing this issue. See United States v. DeFusco, 949
F.2d 114, 120-21 (4th Cir. 1991). Our review of the record identified no conclusive
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evidence of ineffective assistance. Holmes’ claim “should be raised, if at all, in a
28 U.S.C. § 2255 motion.” Faulls, 821 F.3d at 508.
In accordance with Anders, we have reviewed the entire record in this case and
have found no meritorious issues for appeal. We therefore affirm the criminal judgment.
This court requires that counsel inform Holmes, in writing, of the right to petition the
Supreme Court of the United States for further review. If Holmes requests that a petition
be filed, but counsel believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Holmes.
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED
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