United States v. Holmes ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4306
ANDRE PRIEST HOLMES,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, Chief District Judge.
(CR-99-42)
Submitted: October 3, 2003
Decided: December 1, 2003
Before WIDENER, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Charles T. Berry, BOWLES, RICE, MCDAVID, GRAFF & LOVE,
P.L.L.C., Morgantown, West Virginia, for Appellant. Thomas E.
Johnston, United States Attorney, Sherry L. Muncy, Assistant United
States Attorney, Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. HOLMES
OPINION
PER CURIAM:
Andre Priest Holmes appeals the district court’s imposition of a
two-level sentence enhancement under United States Sentencing
Guidelines Manual § 2D1.1(b)(1) for possession of a dangerous
weapon in connection with a drug offense. We affirm.
Holmes first argues that his counsel rendered ineffective assistance
by failing to elicit testimony from his girlfriend at his initial sentenc-
ing regarding the propriety of the enhancement. In order to succeed
on a claim of ineffective assistance of counsel, a defendant must show
that: (1) counsel’s performance fell below an objective standard of
reasonableness; and (2) counsel’s deficient performance was prejudi-
cial. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Under
the first prong of Strickland, a defendant must demonstrate that coun-
sel’s performance fell below an objective standard of reasonableness
under prevailing professional norms. Id. at 689. Further, the review-
ing court must evaluate the reasonableness of counsel’s performance
within the context of the circumstances at the time of the alleged
errors, rather than with the benefit of hindsight. Id. at 690. To satisfy
the second prong of Strickland, a defendant must show a reasonable
probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. Id. at 694. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome. Id. A defendant normally raises the issue of ineffective
assistance of counsel by collateral attack. A defendant can raise the
claim of ineffective assistance on direct appeal, but only if it conclu-
sively appears on the face of the record. United States v. DeFusco,
949 F.2d 114, 120 (4th Cir. 1991).
We find that Holmes’s claim of ineffective assistance does not con-
clusively appear on the face of the record. Although Holmes correctly
notes that his girlfriend was not called to testify to rebut the imposi-
tion of the gun enhancement, the district court already had the neces-
sary information before it on which to rule on the USSG § 2D1.1
enhancement.* In particular, Holmes and his counsel proffered evi-
*Although Holmes contends that his girlfriend’s testimony would have
rebutted the propriety of the enhancement, he fails to specify what this
UNITED STATES v. HOLMES 3
dence both by way of written objections and at the initial sentencing
hearing. Nonetheless, the district court ruled against Holmes, impos-
ing the two-level enhancement. Thus, because ineffective assistance
of counsel does not conclusively appear on the face of the record, this
claim is not properly considered on direct appeal.
Holmes’s next argument, that the district court erred by imposing
the USSG § 2D1.1 enhancement, also fails. We review a sentencing
court’s imposition of such an enhancement for clear error. See United
States v. Banks, 10 F.3d 1044, 1057 (4th Cir. 1993). According to
USSG § 2D1.1, a defendant’s base offense level may be increased by
two levels for possession of a dangerous weapon, including a firearm,
in connection with a drug offense. The commentary to that section
provides that "[t]he adjustment should be applied if the weapon was
connected with the offense." USSG § 2D1.1, comment. (n.3); see
United States v. Harris, 128 F.3d 850, 852 (4th Cir. 1997).
We have upheld a district court’s imposition of the enhancement
where drugs and guns were found in a defendant’s home. See United
States v. Nelson, 6 F.3d 1049, 1056 (4th Cir. 1993), overruled on
other grounds by Bailey v. United States, 516 U.S. 137 (1995); see
also Harris, 128 F.3d at 852-53 (upholding enhancement where
unloaded gun was found in defendant’s dresser with drugs); United
States v. Rusher, 966 F.2d 868, 880 (4th Cir. 1992) (upholding
enhancement where firearms and drugs were found in same brief-
case); United States v. White, 875 F.2d 427, 433 (4th Cir. 1989)
(upholding enhancement where gun was found underneath co-
defendant’s car seat). Here, the gun was found approximately six to
eight feet from half a kilogram of cocaine belonging to Holmes, in a
residence where he stayed and dealt drugs when he was in the area.
Thus, we find that the district court’s imposition of the enhancement
was not clearly erroneous.
Holmes next argues that USSG § 2D1.1 contains an improper
burden-shifting and burden of proof scheme, thereby resulting in a
testimony would have entailed or how it would have rebutted the exis-
tence of a connection between the gun and the drug offense for which he
was convicted.
4 UNITED STATES v. HOLMES
violation of his due process rights. He argues that the "clearly improb-
able" language in the commentary to USSG § 2D1.1 improperly shifts
an overly stringent clear and convincing burden to the defendant.
Holmes contends, however, that it should be the Government that
bears the burden of proving a connection between the gun and the
offense by a preponderance of the evidence, and because the Govern-
ment proffered no evidence to support such a connection, the standard
would not have been met. We find that Holmes’s argument is without
merit. Commentary "that interprets or explains a guideline is authori-
tative unless it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of that guideline."
USSG § 1B1.7, comment. (quoting Stinson v. United States, 508 U.S.
36, 38 (1993)). The "clearly improbable" standard does not violate the
Constitution or a federal statute, nor is it inconsistent with USSG
§ 2D1.1. Thus, Holmes’s argument fails.
Lastly, Holmes argues that the district court’s denial of his motion
to elicit testimony at his resentencing hearing violated his due process
rights. Through this motion, Holmes sought to elicit testimony from
his girlfriend regarding the lack of a connection between the gun and
the drug offense. Holmes relies on USSG § 6A1.3(a), which states
that "parties shall be given an adequate opportunity to present infor-
mation to the court" regarding disputed factors that are important to
the sentencing determination. He argues that the district court should
have afforded him the opportunity to "oppose and specifically
address" the evidentiary basis of the sentence enhancement. We find
Holmes’s argument baseless.
Because Holmes raises this argument for the first time on appeal,
we review it for plain error. See United States v. Olano, 507 U.S. 725,
731-32 (1993). To meet the plain error standard (1) there must be an
error; (2) the error must be plain, meaning obvious or clear under cur-
rent law, and; (3) the error must affect substantial rights. See id. at
732-34. If these three elements are met, the Court may exercise its
discretion to notice the error only if the error seriously affects "the
fairness, integrity, or public reputation of judicial proceedings." Id. at
732. The record confirms that the district court accorded Holmes an
ample opportunity to "oppose and specifically address" the evidenti-
ary basis of the sentence enhancement in written objections and at the
UNITED STATES v. HOLMES 5
initial sentencing hearing. We thus find no error in the district court’s
conduct of the resentencing proceeding, plain or otherwise.
For the foregoing reasons, we find that Holmes’s counsel did not
render ineffective assistance, the district court did not clearly err by
imposing a two-level sentence enhancement under USSG § 2D1.1,
the district court did not employ an improper evidentiary standard,
and the district court did not err by denying Holmes’s motion to elicit
testimony at his resentencing hearing. Accordingly, we affirm
Holmes’s sentence. 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