United States v. Alvin Holmes , 339 F. App'x 375 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 14, 2009
No. 08-31124
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ALVIN HOLMES, also known as Pappa
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:06-CR-353-1
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
The opinion issued in this case on 16 July 2009 is withdrawn, and this
revised opinion is issued in its place. In the first full paragraph at page 3, the
word “attempting” has been changed to “threatening”. No other changes have
been made, and our holding remains the same.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-31124
Having pled guilty to distributing 30 grams of heroin, Alvin Holmes
challenges his being sentenced, in October 2008, to 96 months’ imprisonment.
That sentence is above the guideline-sentencing range of 24 to 30 months
provided by the November 2007 Sentencing Guidelines. Had Holmes been
sentenced when originally scheduled, in September 2007, the then-applicable
2006 Sentencing Guidelines (and their rules for counting prior sentences) would
have provided for career-offender sentencing and a guideline-sentencing range
of 151 to 188 months.
Although post-Booker, the Sentencing Guidelines are advisory only, and
an ultimate sentence is reviewed for reasonableness under an abuse-of-
discretion standard, the district court must still properly calculate the guideline-
sentencing range for use in deciding on the sentence to impose. Gall v. United
States, 128 S. Ct. 586, 596 (2007). In that respect, for a guidelines issue
preserved in district court, its application of the guidelines is reviewed de novo;
its factual findings, only for clear error. E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas, 404 F.3d
355, 359 (5th Cir. 2005).
The district court’s imposing the above-the-range sentence was based
primarily on the seriousness of Holmes’ violent criminal history and its being
under-represented. This under-representation resulted from counting Holmes’
purse-snatching, attempted-armed-robbery, and two armed-robbery convictions
as a single sentence. See U.S.S.G. § 4A1.2(a)(2). The number and character of
the past offenses speaks to “the history and characteristics of the defendant”,
and is a factor relevant under 18 U.S.C. § 3553. See 18 U.S.C. § 3553(a)(1)
(providing factors to be considered in imposing a sentence); see also U.S.S.G.
§ 4A1.2 cmt. n.3 (addressing increased sentences for multiple prior sentences
counted as a single sentence); United States v. Mondragon-Santiago, 564 F.3d
357, 363 (5th Cir. 2009). In the light of the district court’s § 3553(a) criminal-
history assessment, its imposing an above-guideline sentence based upon these
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No. 08-31124
prior convictions was not an abuse of discretion. United States v. Lopez-Salas,
513 F.3d 174, 181 (5th Cir. 2008).
The district court also found that Holmes attempted to interfere with a
witness’ participation in another federal prosecution by threatening to stab that
witness. Because the district court’s finding was based on a credibility
determination after a hearing, “we will not substitute our reading of the
evidence for that of the district court”. United States v. Nixon, 881 F.2d 1305,
1310 (5th Cir. 1989). The threat, whether or not carried out, was a
manifestation of Holmes’ character and, obviously, a relevant sentencing factor.
See 18 U.S.C. § 3553(a)(1).
In addition, the district court found that Holmes used questionable
practices to delay sentencing until the more-favorable 2007 Guidelines took
effect. Among other things, Holmes had moved just before the scheduled
September 2007 sentencing for it to be re-set after 1 November in order to obtain
the benefit of the relevant amendment. As another example, on the day before
the 2007 Guidelines took effect, Holmes’ lawyer appeared with Holmes at the
scheduled sentencing hearing and announced that Holmes had fired him a
month prior to the hearing. After questioning Holmes and the lawyer, the
district court concluded that the story “just didn’t smell good”. Again, our court
will not disturb the district court’s credibility determination. See Nixon, 881
F.2d at 1310. Moreover, the district court plainly stated that the manipulation
of the process did not “weigh heavily in [its] decision”.
The district court thoroughly considered the Sentencing Guidelines,
analyzed and applied the § 3553(a) factors, and explained its reasoning, in
accordance with Gall, 128 S. Ct. 586 at 597-98. The extent of the increase was
not substantively unreasonable. See id.; United States v. Smith, 417 F.3d 483,
492 & n.40 (5th Cir. 2005).
In challenging the district court’s reasons for the increase, Holmes
essentially asks our court to substitute his assessment of the evidence and the
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No. 08-31124
§ 3553(a) factors for that of the district court. Needless to say, this approach is
contrary to the deferential, abuse-of-discretion review dictated by Gall. See Gall,
128 S. Ct. at 597-98.
AFFIRMED.
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