United States v. Carlous Horton , 756 F.3d 569 ( 2014 )


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  • United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 12-3627
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    Carlous S. Horton
    lllllllllllllllllllll Defendant - Appellant
    ___________________________
    No. 12-3628
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    Christopher M. Holmes
    lllllllllllllllllllll Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the Western District of Missouri - Springfield
    ____________
    Submitted: November 21, 2013
    Filed: March 24, 2014
    ____________
    Before BENTON, BEAM, and SHEPHERD, Circuit Judges.
    ____________
    SHEPHERD, Circuit Judge.
    A jury convicted Carlous S. Horton and Christopher M. Holmes of multiple
    crimes stemming from their involvement in a cocaine-distribution ring. They each
    received a life sentence and each appealed, raising numerous procedural, evidentiary,
    and sentencing errors. We reject their arguments and affirm their convictions and
    sentences.1
    I.
    The investigation into Carlous Horton began when Horton was stopped by the
    Oklahoma Highway Patrol and found to be transporting a pound of cocaine. After the
    stop, DEA agents contacted Horton with the hope that Horton could assist the
    Government in its investigation of drug activities in the Springfield-Branson, Missouri
    area. Horton refused to cooperate, but, because of the stop, the DEA began to take
    interest in Horton’s activities. As time progressed, the DEA continued to gather
    intelligence on Horton. Eventually, it learned of a potential informant who claimed
    to have been buying cocaine from Horton.
    Using its newly found informant, the DEA arranged several controlled cocaine
    buys. While monitoring these controlled cocaine purchases, the DEA discovered that
    Horton had a partner, Christopher Holmes. The DEA’s confidential informant
    arranged purchases from both Horton and Holmes. The DEA used the information
    1
    The late Honorable Richard E. Dorr, United States District Judge for the
    Western District of Missouri.
    -2-
    from these controlled buys to obtain wiretaps on phone numbers associated with
    Horton’s cocaine activities. Over the next year, the DEA gathered extensive evidence
    that Horton and Holmes were heavily involved in cocaine distribution. The DEA
    recorded thousands of drug-related phone calls and text messages. Finally, on March
    11, 2011, the DEA executed search warrants on three residences in Southwestern
    Missouri known to be connected with Horton and Holmes’s drug enterprise. In its
    search of the residences, the DEA recovered large amounts of cocaine and several
    guns.
    Horton and Holmes were charged, along with several other defendants, in a 70-
    count indictment. Horton was named in 59 of the counts; Holmes was named in 3
    counts. Though many of their co-conspirators pled guilty, Horton and Holmes elected
    to continue to trial. After a six-day trial, a jury found Horton guilty of: (1) conspiracy
    to distribute 5 kilograms or more of cocaine, to manufacture 280 grams or more of
    cocaine base, and to distribute 280 grams or more of cocaine base; (2) distribution of
    cocaine; (3) possession of cocaine with the intent to manufacture; (4) possession of
    a firearm by a convicted felon; (5) money laundering; and (6) wire fraud. Holmes was
    found guilty of: (1) conspiracy to distribute 5 kilograms or more of cocaine, to
    manufacture 280 grams or more of cocaine base, and to distribute 280 grams or more
    of cocaine base; (2) possession of cocaine with the intent to distribute; and (3)
    possession of a firearm by a convicted felon.
    Because of their prior criminal records, 21 U.S.C. § 841(b)(1)(A) mandated life
    sentences, and Horton and Holmes were each sentenced to life in prison. Horton and
    Holmes timely appealed their convictions and sentences. We consider Horton and
    Holmes’s joint arguments2 in Part II, collectively referring to them as the Appellants,
    and we consider Holmes’s separate arguments in Part III.
    2
    Christopher Holmes has elected to adopt by reference the issues raised in
    Carlous Horton’s opening brief. See Fed. R. App. P. 28(i).
    -3-
    II.
    The Appellants raise four arguments on appeal: (1) the Government violated
    their Fourth Amendment rights by engaging in extensive pre-arrest surveillance; (2)
    the Government violated their due process rights by failing to disclose material,
    exculpatory evidence, in violation of Brady,3 and by engaging in outrageous conduct
    throughout Horton and Holmes’s investigation and prosecution; (3) the district court
    erred by not holding a Remmer4 hearing to investigate a potential juror problem that
    arose during trial; and (4) the Western District of Missouri’s juror selection plan
    violated their Sixth Amendment rights.5
    A.
    The Appellants argue that evidence used by the Government at trial should have
    been suppressed because it was obtained in violation of their Fourth Amendment
    rights. The Appellants argue that the Government should have arrested Horton as
    soon as it had sufficient evidence to charge him, and the Government’s recording of
    their conversations with the Government’s confidential informant violated their
    3
    Brady v. Maryland, 
    373 U.S. 83
    (1963).
    4
    Remmer v. United States, 
    347 U.S. 227
    (1954).
    5
    The Appellants also allege that the district court impermissibly excluded them
    from the courtroom on the first day of the trial during the afternoon voir dire
    examination. The minute sheet filed on that day reflects that each defendant was
    present at trial with counsel in the morning and afternoon sessions. See Minute Sheet
    at 1, No. 6:11-cr-03021-RED (W.D. Mo. Apr. 23, 2012), ECF No. 350. Furthermore,
    the district court judge made several references to the defendants’ presence in the
    courtroom. Trial Tr. at 91-92 (“Okay. Now I’m going to introduce the parties to you.
    The defendants in this case—I’ll ask the defendants each to stand when I call your
    name—are Carlous Horton. Okay. Thank you. And Christopher Holmes. Thank
    you, sir.”). Given the various references to both Horton and Holmes throughout the
    day, and their trial counsels’ failure to raise any objections at the time, we find no
    basis in the record to support a potential violation.
    -4-
    Fourth Amendment rights. Finally, they contend that the Government failed to
    comply with the procedural requirements necessary to obtain a wiretap.
    The Appellants failed to raise these arguments at the pretrial suppression
    hearing and also failed to raise these arguments at trial. Because “[t]hese contentions
    were not raised in a pretrial motion to suppress evidence,” they are waived, and we
    need not consider them. United States v. Green, 
    691 F.3d 960
    , 963-64 (8th Cir. 2012)
    (“Because ‘waived claims are unreviewable on appeal,’ the waiver provision of Rule
    12 precludes appellate review of arguments to suppress evidence that are not raised
    in a pretrial motion to suppress.” (quoting United States v. Booker, 
    576 F.3d 506
    , 511
    (8th Cir. 2009))); see also United States v. Dunn, 
    723 F.3d 919
    , 927 (8th Cir. 2013)
    (holding that the defendant’s argument that wiretap evidence should be suppressed
    was waived because the defendant “did not raise this issue in his pretrial motion to
    suppress”); United States v. Henderson, 
    613 F.3d 1177
    , 1182 (8th Cir. 2010) (“By not
    raising this suppression argument below, [the defendant] waived the claim, rendering
    it unreviewable on appeal.” (internal quotation marks omitted)). We may “grant relief
    from the waiver for ‘good cause.’” 
    Green, 691 F.3d at 965
    (quoting Fed. R. Crim. P.
    12(e)). The Appellants, however, have failed to establish a good cause for granting
    such relief in this case because the Government had no obligation to arrest Horton as
    soon as it had sufficient evidence to charge him. See United States v. Lovasco, 
    431 U.S. 783
    , 791-93 (1977).
    B.
    The Appellants insist that the Government violated their due process rights by
    failing to disclose potentially exculpatory evidence and by engaging in outrageous
    conduct throughout the investigation and prosecution.
    1.
    The Appellants argue that the Government violated its Brady obligation by
    failing to disclose material, exculpatory evidence. Because they failed to raise the
    -5-
    alleged Brady violations at trial, we review for plain error. United States v. Aleman,
    
    548 F.3d 1158
    , 1164 (8th Cir. 2008). To obtain relief under a plain-error standard of
    review, the party seeking relief must show that: (1) there was an error; (2) the error
    is clear or obvious under current law; (3) the error affected the party’s substantial
    rights; and (4) the error seriously affects the fairness, integrity, or public reputation
    of judicial proceedings. United States v. Poitra, 
    648 F.3d 884
    , 887 (8th Cir. 2011).
    First, the Appellants allege that the Government failed to produce the results of palm
    print and fingerprint comparisons. Second, they allege that the Government failed to
    provide Horton access to one of his personal computers that contained financial files
    Horton needed for his defense. Because the record indicates that Horton was indeed
    given access to his computer,6 we need only address the palm prints and fingerprints
    claim.
    Ten months before trial, the Government requested Horton’s palm prints and
    fingerprints so it could determine if Horton’s prints matched those found on two
    canisters that were discovered in one of the drug houses. The district court entered an
    order compelling Horton to comply with the Government’s request, subject to two
    conditions: (1) the print comparisons were to be completed within 30 days of the
    order, and (2) the Government was to submit the results to defense counsel. The
    record, however, fails to indicate whether the palm print and fingerprint analyses ever
    took place. The Government never introduced the print comparisons at trial, and the
    Appellants failed to request the comparisons at trial. Now, on appeal, the Appellants
    6
    The Government contends that it provided Horton an opportunity to access the
    computer, but that Horton failed to act on the Government’s offer. In any event, the
    Government provided Horton his computer before trial, and Horton was given time
    to access his financial files. See Trial Tr. at 19-25. The record indicates that Horton
    sought access to financial files in order to help prove his contention that the DEA
    stole money from him while conducting its search of his residence, which is dealt with
    in more detail below in Part II.B.2.
    -6-
    speculate that the Government failed to produce the print comparisons because the
    evidence was exculpatory.
    The Appellants’ Brady claim fails at step one of our plain-error review. Brady
    requires the government to disclose evidence that is “both ‘favorable to an accused’
    and ‘material either to guilt or punishment.’” United States v. Whitehill, 
    532 F.3d 746
    , 753 (8th Cir. 2008) (quoting Brady v. Maryland, 
    373 U.S. 83
    , 87 (1963)). The
    Appellants note that the Government did not produce the requested print comparisons
    at trial. According to the Appellants, the Government’s decision to exclude the print
    comparisons at trial must mean that the comparisons were favorable to them. The
    Appellants’ argument, which is solely based on conjecture and speculation, cannot
    support a Brady violation. As we noted in Aleman, “mere speculation is not sufficient
    to sustain a Brady 
    claim.” 548 F.3d at 1164
    (alterations omitted) (internal quotation
    marks omitted); see also United States v. Gary, 
    341 F.3d 829
    , 833-34 (8th Cir. 2003)
    (holding that defendants speculation on the results of a fingerprint test could not
    establish Brady claim), overruled on other grounds by Chambers v. United States, 
    555 U.S. 122
    (2009); United States v. Sumner, 
    171 F.3d 636
    , 637 (8th Cir. 1999) (per
    curiam) (holding that no Brady violation occurred when the Government failed to
    inform the defendant that a fingerprint analysis performed on an envelope found at the
    scene of a crime did not match the defendant). Accordingly, because the Appellants
    have failed to show that the Government violated its obligations under Brady, their
    claim fails at step one of our plain-error review.
    2.
    The Appellants also argue that we should set aside their convictions and quash
    their indictments because of the Government’s outrageous conduct throughout the
    investigation and prosecution. In reviewing a district court’s denial of a motion to
    dismiss an indictment for alleged outrageous government misconduct, we review the
    district court’s legal conclusions de novo and its factual findings for clear error.
    United States v. Nieman, 
    520 F.3d 834
    , 838 (8th Cir. 2008). The Appellants allege
    -7-
    that the Government used a confidential informant known to abuse drugs, intimidated
    a witness, and stole money during one of its searches. In order for government
    misconduct to warrant dismissal, the conduct “must shock the conscience of the
    court.” See United States v. Pardue, 
    983 F.2d 843
    , 847 (8th Cir. 1993) (per curiam)
    (internal quotation marks omitted). Morever, we are reminded that this “defense is
    reserved for conduct that falls ‘within that narrow band of the most intolerable
    government conduct.’” See United States v. King, 
    351 F.3d 859
    , 867 (8th Cir. 2003)
    (quoting Pardue, 
    983 F.2d 847
    ).
    The Appellants have failed to show that the Government’s conduct rises to the
    level of outrageousness needed to prove a due process violation because their
    allegations are either unsupported by the record or fail to “shock the conscience of the
    court.” See 
    Pardue, 983 F.2d at 847
    .
    First, the Government’s use of its confidential informant fails to establish a due
    process claim. The Government conceded that, after using the informant for
    approximately four months, it discovered that its informant was making unauthorized
    drug purchases. At that point, the Government ceased using the informant in a
    proactive manner, though the Government did not notify the informant that it was
    terminating their relationship for fear that doing so would jeopardize the
    Government’s larger investigation. “‘[T]he use of unsavory informants is quite often
    the nature of the beast in police investigations,’” and here, because the Government
    neither directed or encouraged its informant’s impermissible behavior, the informant’s
    misconduct cannot be attributed to the Government. See 
    Nieman, 520 F.3d at 838
    (quoting United States v. King, 
    351 F.3d 859
    , 868 (8th Cir. 2003)).
    Second, the Government did not impermissibly intimidate Horton’s witness to
    keep her from testifying. Horton sought to have a witness testify to support his
    allegation that the DEA stole money during its search of his home. Before the
    witness, who Horton failed to indicate as a potential witness prior to the hearing, took
    -8-
    the stand, the Government informed the court that the witness was the subject of a
    Social Security Administration investigation and that the witness may want to seek
    legal counsel before testifying. The witness decided not to testify. Though
    “government conduct designed to intimidate potential defense witnesses is improper,”
    United States v. Habhab, 
    132 F.3d 410
    , 415 (8th Cir. 1997), a prosecutor is not
    prohibited from suggesting that a defense witness should speak with an attorney to
    prevent self-incrimination. See United States v. Mahasin, 
    362 F.3d 1071
    , 1087 (8th
    Cir. 2004).
    Finally, Horton’s allegation that DEA agents stole approximately $9,000 from
    his residence while executing a search warrant is not sufficient to support the
    Appellants’ claim of outrageous government conduct that violated their right to due
    process. Horton’s allegation may provide a basis for a civil action,7 but, because our
    precedent has focused the outrageous-conduct inquiry on situations in which officers
    “create crimes in order to lure a defendant into illegal activity ‘[the defendant] was not
    otherwise ready and willing to commit,’” the allegation is insufficient to support a due
    process claim. See United States v. Boone, 
    437 F.3d 829
    , 842 (8th Cir. 2006)
    (quoting United States v. Lard, 
    734 F.2d 1290
    , 1297 (8th Cir. 1984)); see also 
    King, 351 F.3d at 867-68
    .
    C.
    The Appellants maintain that the district court erred in failing to hold a Remmer
    hearing to investigate the possibility that a juror may have overheard a conversation
    between Holmes’s defense counsel and Holmes’s family during a recess at trial.8
    7
    A district court dismissed Horton’s civil suit against the DEA in April 2013,
    see Order at 1-3, Horton v. Drug Enforcement Agency, No. 6:11-cv-03381-GAF
    (W.D. Mo. Apr. 10, 2013), ECF No. 51, and the Eighth Circuit affirmed the dismissal,
    see Judgment, Horton, No. 13-2884 (8th Cir. Sept. 5, 2013).
    8
    A Remmer hearing is a mechanism the district court may utilize to investigate
    allegations of intrusions on the jury. See United States v. Tucker, 
    137 F.3d 1016
    ,
    -9-
    On day four of the trial, Holmes’s defense counsel informed the district court
    that during a recess he noticed a juror standing a few feet away from him while he was
    discussing the case with the Holmes’s family members. The district court, the
    prosecutor, and defense counsel discussed how they should proceed to remedy the
    potential problem. The court determined that it would continue with the trial, draw
    as little attention to what occurred as possible, and potentially question the juror when
    the court dismissed the alternates. At the close of the trial, the court requested the
    juror in interest to stay behind as the jury retired to deliberate. The court asked the
    juror if he had overheard the conversation about which Holmes’s counsel was
    concerned, and the juror indicated that he had not. The judge then asked defense
    counsel if they had any questions for the juror; defense counsel indicated they did not.
    With that, the juror was excused and dismissed from the panel, and an alternate juror
    took his place.
    Because the Appellants failed to object at trial, we review the Appellants’
    Remmer claim for plain error. See United States v. Pirani, 
    406 F.3d 543
    , 549 (8th Cir.
    2005) (en banc). The Appellants contend that the district court had an obligation to
    conduct a full hearing to explore the possibility that the juror may have overheard the
    discussion between Holmes’s counsel and Holmes’s family. We disagree. Trial
    courts are given substantial deference to resolve potential problems with the jury, see
    United States v. Melius, 
    123 F.3d 1134
    , 1138 (8th Cir. 1997), and with this deference
    in mind, we hold that the district court reasonably resolved the possibility that the
    juror was exposed to improper information. The district court properly weighed the
    “gravity of the alleged misconduct,” which was relatively minor, and the
    “substantiality of the [Holmes’s] showing of misconduct.” See 
    Tucker, 137 F.3d at 1031
    ; accord United States v. Mack, 
    729 F.3d 594
    , 605-06 (6th Cir. 2013) (holding
    that defendant’s Remmer challenge, based on a juror potentially overhearing a
    conversation between testifying FBI agents during a lunch break, failed under a plain-
    1030-31 (8th Cir. 1998).
    -10-
    error review because the defendant failed to create a record that could establish the
    necessity of a full hearing). The juror informed the court, in the presence of defense
    counsel, that the juror did not overhear the conversation, and the court invited defense
    counsel to question the juror further, an invitation that was declined. The court relied
    on the juror’s statement, see Smith v. Phillips, 
    455 U.S. 209
    , 217 & n.7 (1982), to
    determine that dismissing the juror would adequately resolve the issue. The
    Appellants’ suggestion that the juror was potentially exposed to improper information
    was resolved by the district court. Thus, there was no reason for the district court to
    take additional measures. The Appellants have failed to show error, the first prong of
    our plain-error review.
    D.
    The Appellants contend that the Western District of Missouri’s juror selection
    plan9 violates the fair-cross-section requirement of the Sixth Amendment. To
    establish a fair-cross-section claim, the Appellants are required to show:
    (1) that the group alleged to be excluded is a “distinctive” group in the
    community; (2) that the representation of this group in venires from
    which juries are selected is not fair and reasonable in relation to the
    number of such persons in the community; and (3) that this
    under-representation is due to systematic exclusion of the group in the
    jury-selection process.
    United States v. Jefferson, 
    725 F.3d 829
    , 835 (8th Cir. 2013) (quoting United States
    v. Sanchez, 
    156 F.3d 875
    , 879 (8th Cir. 1998)).
    The Appellants argue that their right to an “impartial jury drawn from a fair
    cross section of the community,” Taylor v. Louisiana, 
    419 U.S. 522
    , 536 (1975), was
    9
    The Western District of Missouri’s juror selection plan derives the pool of
    potential jurors from merged lists of general election voter registration and licensed
    drivers.
    -11-
    violated because their juror pool did not include any African-American jurors. The
    Appellants failed, however, to provide any data on the racial makeup of juror pools
    in the Western District of Missouri or any statistical analyses showing under-
    representation. Cf. United States v. Rogers, 
    73 F.3d 774
    , 776-77 (8th Cir. 1996)
    (providing examples of the type of statistical data needed to establish a prima facie
    case). The only evidence they provide in support of their argument, aside from their
    own observation that the juror pool lacked African-American jurors, is census data
    showing the total population of African-Americans in Springfield, Missouri and
    Missouri as a whole. We reject the Appellants’ Sixth Amendment fair-cross-section
    claim because of their inability to provide any evidence that the jury panel was not
    chosen from a fair and impartial cross-section of the community. 
    Jefferson, 725 F.3d at 835
    ; see also Singleton v. Lockhart, 
    871 F.2d 1395
    , 1399 (8th Cir. 1989)
    (“Evidence of a discrepancy on a single venire panel cannot demonstrate systematic
    exclusion.”).
    III.
    Separately, Holmes raises three arguments on appeal: (1) the district court erred
    when it admitted, pursuant to Federal Rule of Evidence 404(b), evidence of his prior
    criminal convictions; (2) the district court erred in sentencing him to a mandatory life
    term because his presentence investigation report (PSR) failed to state that a
    mandatory life sentence was a possible sentence; and (3) the district court erred by
    failing to address his Blakely10 objections to the PSR.
    A.
    Holmes asserts that the district court erred in admitting, pursuant to Federal
    Rule of Evidence 404(b), evidence of Holmes’s prior drug convictions. In the case
    currently on appeal, Holmes was charged with (1) conspiracy to distribute cocaine;
    (2) possession of cocaine with the intent to distribute; and (3) possession of a firearm
    10
    Blakely v. Washington, 
    542 U.S. 296
    (2004).
    -12-
    by a convicted felon. The Government introduced into evidence, over defense
    counsel’s objection, three of Holmes’s former convictions: (1) a 2004 conviction for
    possession of a controlled substance; (2) a 2006 conviction for possession of a
    controlled substance with intent to deliver; and (3) a 2004 conviction for attempted
    felony possession of a firearm.
    We review a district court’s decision to admit evidence under Rule 404(b) for
    abuse of discretion. See United States v. Wilson, 
    619 F.3d 787
    , 791-92 (8th Cir.
    2010). Rule 404(b) is a rule of inclusion, and, as such, if “evidence [is] offered for
    permissible purposes [it] is presumed admissible absent a contrary determination.”
    United States v. Johnson, 
    439 F.3d 947
    , 952 (8th Cir. 2006). Evidence is admissible
    under Rule 404(b) if it is “(1) relevant to a material issue; (2) similar in kind and close
    in time to the crime charged; (3) proven by a preponderance of the evidence; and (4)
    if the potential prejudice does not substantially outweigh its probative value.” United
    States v. Thomas, 
    398 F.3d 1058
    , 1062 (8th Cir. 2005). Holmes claims that the first,
    second, and fourth considerations of our Rule 404(b) analysis all weigh in favor of
    reversal. We disagree and hold that the district court did not abuse its discretion in
    admitting evidence of Holmes’s prior convictions.
    Beginning with the first 404(b) consideration, Holmes’s prior convictions are
    relevant to the material issue of Holmes’s state of mind. “It is settled in this circuit
    that ‘a prior conviction for distributing drugs, and even the possession of
    user-quantities of a controlled substance, are relevant under Rule 404(b) to show
    knowledge and intent to commit a current charge of conspiracy to distribute drugs.’”
    United States v. Robinson, 
    639 F.3d 489
    , 494 (8th Cir. 2011) (quoting United States
    v. Frazier, 
    280 F.3d 835
    , 847 (8th Cir. 2002)). Additionally, evidence of prior
    possession of drugs is admissible “to show such things as knowledge and intent of a
    defendant charged with a crime in which intent to distribute drugs is an element.”
    United States v. Hardy, 
    224 F.3d 752
    , 757 (8th Cir. 2000) (internal quotation marks
    omitted); see also United States v. Tyerman, 
    701 F.3d 552
    , 562-63 (8th Cir. 2012)
    -13-
    (“[Rule] 404(b) evidence may establish motive and intent in felon-in-possession
    cases.”).
    Next, each of the offenses introduced was similar in kind to Holmes’s current
    charges and sufficiently close in time to Holmes’s trial, satisfying the second
    consideration. Holmes’s prior drug and gun convictions are virtually identical in kind
    to the current charges he faced, and the most remote of Holmes’s prior convictions
    was eight years old at the time of trial, a length of time we have found sufficiently
    close on several occasions. See, e.g., United States v. Gaddy, 
    532 F.3d 783
    , 789 (8th
    Cir. 2008) (holding that prior convictions of “four, ten and eleven years old” were not
    so remote to be inadmissible). Finally, with regard to the fourth consideration, the
    district court’s limiting instruction mitigated any potential prejudicial effect evidence
    of Holmes’s prior convictions may have had on the jury. See 
    Robinson, 639 F.3d at 494
    . Accordingly, we conclude that the district court did not abuse its discretion by
    admitting evidence of Holmes’s former convictions.
    B.
    Holmes argues that his sentence should be vacated because the district court
    erred in sentencing him to mandatory life imprisonment when his PSR failed to
    provide that the he was facing a mandatory life sentence. Because Holmes admittedly
    failed to object to this alleged procedural error before the district court, we review for
    plain error. United States v. Burnette, 
    518 F.3d 942
    , 945 (8th Cir. 2008) (“Procedural
    sentencing errors are forfeited, and therefore may be reviewed only for plain error, if
    the defendant fails to object in the district court.”); see also United States v. Poitra,
    
    648 F.3d 884
    , 887 (8th Cir. 2011) (holding that plain-error standard requires a party
    to show that “there was an error, the error is clear or obvious under current law, the
    error affected the party’s substantial rights, and the error seriously affects the fairness,
    integrity, or public reputation of judicial proceedings”). In the sentencing context, an
    error affects a defendant’s “substantial rights” when the error is prejudicial, and “‘an
    error is prejudicial only if the defendant proves a reasonable probability that he would
    -14-
    have received a lighter sentence but for the error.’” United States v. Franklin, 
    695 F.3d 753
    , 757 (8th Cir. 2012) (quoting United States v. Molnar, 
    590 F.3d 912
    , 914
    (8th Cir. 2010)); see also United States v. Pirani, 
    406 F.3d 543
    , 551-53 (8th Cir. 2005)
    (en banc). Holmes cannot show that the error was prejudicial because he cannot show
    that he would have received a lighter sentence but for the alleged misstated sentencing
    range in the original PSR. Accordingly, we reject Holmes’s challenge.
    Prior to trial, the Government filed with the district court an information
    pursuant to 21 U.S.C. § 851, which provided notice of its intent to use Holmes’s prior
    criminal convictions for enhancement purposes. Shortly after, at a pretrial hearing,
    the Government stated in the presence of Holmes that Holmes would be facing a
    mandatory life sentence if convicted but that he could, instead, plead guilty and face
    a lesser mandatory minimum. See Tr. Pretrial Conference at 2-3, No. 6:11-cr-03021-
    RED (W.D. Mo. Apr. 11, 2012), ECF No. 583. The judge presiding over the pretrial
    conference verified that Holmes understood the gravity of the decision he faced:
    Court: All right. Mr. Holmes, you understand that the United States has
    filed what’s called an enhancement, which would raise, if convicted at
    trial, raise the minimum mandatory to life imprisonment. They have
    offered as a plea agreement to drop one of those enhancements, which
    would change the minimum mandatory from life to 20 years. Do you
    understand that?
    Holmes: Yes, sir.
    Court: All right. So, you need to discuss that with your attorney
    promptly and make a decision that’s in your best interest. And with that,
    —
    Holmes: Yes, sir.
    Court: —we’ll be in recess.
    See 
    id. at 3.
    As this exchange indicates, Holmes was aware that he faced the potential
    for life in prison if he proceeded to trial. When Holmes’s PSR was drafted, however,
    it failed to reflect that Holmes was facing a mandatory life sentence. Instead, the PSR
    -15-
    provided a sentencing range of 324 to 405 months. Neither side objected to the
    sentencing-range error, and the PSR was finalized on September 11, 2012.
    At the sentencing hearing in October, the court notified Holmes that, contrary
    to the original PSR, he was facing a mandatory life sentence. See Sentencing Tr. at
    3, 6, No. 6:11-cr-03021-RED (W.D. Mo. Dec. 17, 2012), ECF No. 553. Though the
    minute sheet for the day’s proceedings reflects that the district court corrected the PSR
    at the sentencing hearing, see Minute Sheet at 1, No. 6:11-cr-03021-RED (W.D. Mo.
    Oct. 26, 2012), ECF No. 520, the transcript does not contain a record of the correction.
    In any event, the PSR was later amended to reflect the correction and conform with
    the sentence imposed. Sentencing Addendum to the Presentence Report at 1, No.
    6:11-cr-03021-RED (W.D. Mo. Oct. 29, 2012), ECF No. 509.
    We need not determine whether the misstated sentencing range in the original
    PSR satisfies the first two prongs of our plain-error analysis because even if we were
    to assume that the misstated sentencing range constituted an error that was clear or
    obvious, Holmes fails to show that he would be entitled to a lighter sentence but for
    the error. See 
    Franklin, 695 F.3d at 757
    . The most significant problem with Holmes’s
    argument is that he faced a mandatory minimum sentence. Absent a government
    motion, “‘the district court is without authority to impose a sentence below a statutory
    mandatory minimum sentence.’” United States v. Perez, 
    526 F.3d 1135
    , 1138 (8th
    Cir. 2008) (quoting United States v. Holbdy, 
    489 F.3d 910
    , 912 (8th Cir. 2007)); see
    also 18 U.S.C. § 3553(e), (f). Because Holmes’s sentence was mandatory, the error
    in the PSR had no affect on the sentence Holmes received. See United States v.
    Chacon, 
    330 F.3d 1065
    , 1065-66 (8th Cir. 2003) (affirming a defendant’s sentence
    when the district court overlooked the statutory minimum, sentenced the defendant to
    the wrong term, and later discovered and corrected the error). Accordingly, Holmes
    is unable to show a reasonable probability that but for the error in the PSR he would
    have received a more favorable sentence. See 
    Pirani, 406 F.3d at 553
    ; cf. United
    States v. Crawford, 
    487 F.3d 1101
    , 1108 (8th Cir. 2007) (“Because [the defendant’s]
    -16-
    sentence was driven by mandatory minimum terms of incarceration defined by statute,
    there is nothing any attorney could have done to achieve a more favorable result at
    sentencing.”). Since the misstated sentencing range did not affect Holmes’s
    substantial rights, he has not shown plain error.
    C.
    Holmes contends that the district court erred by failing to address his Blakely
    based objections to the PSR. Holmes objected to the offense conduct portion of the
    PSR in its entirety with the following pro-forma objection:
    This objection is made pursuant to Blakely v. Washington, 
    124 S. Ct. 2531
    (2004) (sentencing enhancements not admitted to by defendant or
    found by the jury beyond a reasonable doubt are unconstitutional) and
    pursuant to United States v. Menteer, 
    408 F.3d 445
    (8th Cir. 2005)
    (when a defendant does not object to a fact in a presentence report, the
    defendant is generally presumed to have admitted the fact for sentencing
    purposes). Such admissions are deemed made even for Sixth
    Amendment arguments. See United States v. Thorn, 
    413 F.3d 820
    (8th
    Cir. 2005).
    Holmes also objected to the criminal history portion of his PSR. At sentencing,
    Holmes’s counsel informed the court that she had no additional objections to the PSR.
    See Sentencing Tr. at 2. The district court overruled Holmes’s objections and
    continued with sentencing. Holmes now argues on appeal that the district court
    should have conducted a separate hearing to rule on his objections and fully explain
    its reasoning.
    We disagree with Holmes’s contention and find no error in the district court’s
    actions. Holmes failed to notify the Government and the court of any specific facts
    he disputed and instead opted to challenge the entire offense conduct section with a
    general Blakely objection. This objection was too vague to alert the Government and
    the court of any specific, disputed issues. See United States v. Rodriguez, 711 F.3d
    -17-
    928, 939-40 (8th Cir. 2013); United States v. Davis, 
    583 F.3d 1081
    , 1095 (8th Cir.
    2009) (“The reason we require specific objections is to put the Government on notice
    of the challenged facts which the government will need to prove at the sentencing
    hearing.” (internal quotation marks omitted)); cf. United States v. Sorrells, 
    432 F.3d 836
    , 837-39 & n.2 (8th Cir. 2005) (holding that defendant’s objections “were
    minimally sufficient” because they alerted the court to specific uncharged conduct
    relied upon by the sentencing judge). Holmes’s challenge to the criminal history
    section was equally vague and therefore fails. See 
    Rodriguez, 711 F.3d at 939-40
    .10
    IV.
    Having reviewed the record carefully, and having considered all of the
    contentions on appeal, we find no basis for reversal. Accordingly, we affirm Horton
    and Holmes’s convictions and sentences.
    ______________________________
    10
    We recently recognized that Alleyne v. United States, 
    133 S. Ct. 2151
    (2013),
    “left intact the rule that enhancements based on the fact of a prior conviction are an
    exception to the general rule that facts increasing the prescribed range of penalties
    must be presented to a jury.” See United States v. Abrahamson, 
    731 F.3d 751
    , 751-52
    (8th Cir. 2013) (per curiam).
    -18-
    

Document Info

Docket Number: 12-3627, 12-3628

Citation Numbers: 756 F.3d 569, 2014 WL 1140196

Judges: Benton, Beam, Shepherd

Filed Date: 3/24/2014

Precedential Status: Precedential

Modified Date: 11/5/2024

Authorities (42)

Chambers v. United States , 129 S. Ct. 687 ( 2009 )

Remmer v. United States , 74 S. Ct. 450 ( 1954 )

United States v. Gilberto Sanchez , 156 F.3d 875 ( 1998 )

United States v. Charles Lavell Hardy , 224 F.3d 752 ( 2000 )

United States v. Willie C. Johnson , 439 F.3d 947 ( 2006 )

United States v. Lovasco , 97 S. Ct. 2044 ( 1977 )

United States v. Chad Joseph Sumner , 171 F.3d 636 ( 1999 )

United States v. Michael Dean Melius , 123 F.3d 1134 ( 1997 )

United States v. Pete Woodrum Lard and Lloyd Dean Rigsby , 734 F.2d 1290 ( 1984 )

United States v. Junior C. Menteer , 408 F.3d 445 ( 2005 )

United States v. Wesley George Thorn , 413 F.3d 820 ( 2005 )

United States v. Jose A. Chacon , 330 F.3d 1065 ( 2003 )

united-states-v-phelix-henry-frazier-also-known-as-towman-also-known-as , 280 F.3d 835 ( 2002 )

Smith v. Phillips , 102 S. Ct. 940 ( 1982 )

United States v. Poitra , 648 F.3d 884 ( 2011 )

United States v. Jim Guy Tucker , 137 F.3d 1016 ( 1998 )

United States v. Nieman , 520 F.3d 834 ( 2008 )

United States v. Aleman , 548 F.3d 1158 ( 2008 )

charles-laverne-singleton-v-al-lockhart-commissioner-arkansas , 871 F.2d 1395 ( 1989 )

United States v. Booker , 576 F.3d 506 ( 2009 )

View All Authorities »