United States v. Torrence Holmes

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10405 ELEVENTH CIRCUIT
Non-Argument Calendar DECEMBER 9, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:08-cr-21097-JAL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRANCE SCOTT,
a.k.a. “T”,
Defendant-Appellant.
________________________
No. 10-10506
Non-Argument Calendar
________________________
D.C. Docket No. 1:08-cr-21097-JAL-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TORRENCE HOLMES,
a.k.a. Ton Ton,
Defendant-Appellant.
__________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(December 9, 2010)
Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Terrance Scott and Torrence Holmes appeal their respective sentences of
108 and 144 months of imprisonment for conspiring to possess with intent to
distribute heroin, 21 U.S.C. § 846, and possessing with intent to distribute heroin,
id. §§ 841(a)(1), (b)(1)(C). Scott argues that he was entitled to a one-level
reduction for his acceptance of responsibility, U.S. Sentencing Guidelines Manual
§ 3E1.1(b) (2008). Holmes argues that he was not responsible for five ounces or
more of heroin and he should not have been classified as a career offender. We
affirm.
The district court did not err by refusing to award Scott a one-level
reduction for accepting responsibility. If a defendant qualifies for a two-level
reduction for acceptance of responsibility, he may receive an additional one-level
reduction upon motion of the government. U.S.S.G. § 3E1.1(b). The Guidelines
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vest the government with broad discretion to determine if the additional reduction
is warranted: “Because the Government is in the best position to determine
whether the defendant has assisted authorities in a manner that avoids preparing
for trial, an adjustment under subsection (b) may only be granted upon a formal
motion by the Government at the time of sentencing.” Id. cmt. n.6. The
government did not move for Scott to receive the one-level reduction.
Scott argues that he is situated identically to his co-defendant Holmes and,
by process of elimination, the government must have refused to grant the
additional one-level reduction based on an unconstitutional motive, but we
disagree. Scott fails to identify what unconstitutional motive purportedly lies
behind the decision to deny the additional reduction, and the government provided
a legitimate explanation for its decision. At the sentencing hearing, the
government stated that it refused to move for an additional one-level reduction
because Scott had made inconsistent statements about the amount of drugs
involved in his crimes and had filed pro se objections in concert with co-defendant
Holmes, all of which suggested that Scott had not accepted responsibility for his
crimes. Scott is not entitled to relief.
The district court did not clearly err by attributing to Holmes 5 ounces or
more of heroin. At the sentencing hearing, cohort Reginald Holsey authenticated
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tape recorded telephone conversations in which Holmes purchased on at least five
occasions single-ounce quantities of heroin from Holsey. See United States v.
Mertilus, 111 F.3d 870, 873 (11th Cir. 1997). Holmes challenges Holsey’s
credibility, but the district court was entitled to credit Holsey’s testimony. See
United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). The record
supports the finding that Holmes’s offenses involved at least 5 ounces of heroin.
The district court also did not err in sentencing Holmes as a career offender.
Holmes argues that his prior convictions are related and treated as a single offense
for purposes of enhancement, but he acknowledges that his argument is foreclosed
by our decision in United States v. Wilks, 464 F.3d 1240 (11th Cir. 2006). In
Wilks, we held that prior felony convictions are counted separately when the
defendant is arrested for his crimes on different days. Id. at 1244. Like the
defendant in Wilks, Holmes was arrested on separate occasions for two different
crimes of possessing with intent to distribute heroin.
We AFFIRM the sentences imposed on Scott and Holmes.
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