United States v. Robert Holden, Jr.

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4804
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT LEE HOLDEN, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever III, District Judge. (5:17-cr-00104-D-1)
Submitted: June 2, 2022 Decided: July 22, 2022
Before GREGORY, Chief Judge, and KING and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Mitchell G. Styers, BANZET, THOMPSON, STYERS & MAY, PLLC,
Warrenton, North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney,
David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Following a jury trial, Robert Lee Holden, Jr., was convicted of possession of a
stolen firearm, in violation of 18 U.S.C. § 922(j) (Count 2), and possession of a firearm by
a felon, in violation of 18 U.S.C. § 922(g) (Count 3). The district court imposed a
within-Sentencing Guidelines sentence of 264 months’ imprisonment, consisting of 120
months on Count 2 and a concurrent 264 months on Count 3. Holden timely appealed,
raising several claims. For the reasons that follow, we affirm.
Holden first argues that the district court improperly denied his motion to suppress
evidence seized from his trailer, claiming that any consent that he gave was involuntary
because he was impaired by drugs and alcohol and was handcuffed. “In reviewing a district
court’s ruling on a motion to suppress, this Court reviews conclusions of law de novo and
underlying factual findings for clear error.” United States v. Clarke, 842 F.3d 288, 293
(4th Cir. 2016) (cleaned up). “When reviewing factual findings for clear error, [this Court]
particularly defer[s] to a district court’s credibility determinations, for it is the role of the
district court to observe witnesses and weigh their credibility during a pre-trial motion to
suppress.” United States v. Palmer, 820 F.3d 640, 653 (4th Cir. 2016) (internal quotation
marks omitted). “Absent compelling evidence to the contrary, this Court [will not]
overturn a factual determination founded on witness demeanor and credibility.” United
States v. Locklear, 829 F.2d 1314, 1317 (4th Cir. 1987). When the district court denies a
defendant’s motion to suppress, this Court construes “the evidence in the light most
favorable to the government.” Clarke, 842 F.3d at 293 (internal quotation marks omitted).
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Although the Fourth Amendment generally requires a law enforcement officer to
obtain a warrant in order to search a home, “certain categories of permissible warrantless
searches have long been recognized,” such as “consent searches.” Fernandez v. California,
571 U.S. 292, 298 (2014). “Consent to search is valid if it is (1) knowing and voluntary,
and (2) given by one with authority to consent.” United States v. Buckner, 473 F.3d 551,
554 (4th Cir. 2007) (cleaned up). “The question whether consent to search is voluntary—
as distinct from being the product of duress or coercion express or implied—is one ‘of fact
to be determined from the totality of all the circumstances.’” United States v.
Azua-Rinconada, 914 F.3d 319, 324 (4th Cir. 2019) (quoting Schneckloth v. Bustamonte,
412 U.S. 218, 227 (1973)). “In viewing the totality of the circumstances, it is appropriate
to consider the characteristics of the accused (such as age, maturity, education, intelligence,
and experience) as well as the conditions under which the consent to search was given
(such as the officer’s conduct; the number of officers present; and the duration, location,
and time of the encounter).” United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996)
(en banc). Whether a defendant voluntarily consented to a search is reviewed for clear
error, and “a reviewing court may not reverse the decision of the district court that consent
was given voluntarily unless it can be said that the view of the evidence taken by the district
court is implausible in light of the entire record.” Id. at 650-51.
At the suppression hearing, the arresting officers first gave their account. They
testified that they responded to a call of shots fired and proceeded in the direction that the
complainant told them the suspect had headed. As they approached three trailers, Holden
came out of one of the trailers holding a weapon. The officers ordered him to drop it, which
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he did, and then they handcuffed him for detention and questioned him. One of the officers
recognized Holden and knew he was a convicted felon. The officer asking questions
detected the odor of alcohol on Holden, but the other one did not. The officers testified
that Holden was steady, his speech was not slurred, and he did not appear impaired. The
weapon turned out to be a water gun and when the officers asked him if he had other guns,
Holden said no but told the officers they could look if they wanted. One of the officers
then turned around and saw through the open door to the trailer that there was a handgun
on an ottoman. He went inside and unloaded the gun for safety and put it back where it
had been for the crime scene investigation.
Holden denied having a water gun, denied giving permission for the officers to enter
his trailer, denied that the trailer door was wide open and that the officers could see into it.
He claimed that he was impaired by alcohol and drugs. He also denied leaving the gun on
the ottoman, claiming that it was behind other items on an adjacent coffee table.
The district court found the officers’ testimony credible and that Holden consented
to the search and, further, that Holden committed perjury. We conclude that the district
court did not clearly err in crediting the officers’ testimony over that of Holden and
determining that Holden was not impaired when he gave his consent. Furthermore,
although the officers had initially drawn their weapons and Holden was handcuffed, the
situation was diffused because the officers had put away their weapons and were engaging
in conversation with Holden at the time he gave his consent to search. See, e.g., United
States v. Watson, 423 U.S. 411, 424 (1976) (concluding that the defendant’s consent to
search automobile was voluntary and valid, despite the fact that he had been arrested and
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was in custody, and noting “the fact of custody alone has never been enough in itself to
demonstrate a coerced ... consent to search”); United States v. Boone, 245 F.3d 352, 363
(4th Cir. 2001) (finding consent voluntary where the defendant cooperated with police and
although “handcuffed during his interaction with law enforcement, he never asked to leave,
was cooperating, and even engaged in small talk with the officers”). We conclude that
under the totality of the circumstances, the district court did not clearly err in concluding
that Holden validly consented to the search.
At the suppression hearing, the district court held that Holden committed perjury by
testifying falsely regarding several material matters. The court announced that if Holden
was ultimately convicted of any of the charges, at sentencing he would not receive an
acceptance of responsibility reduction and would receive an obstruction of justice
enhancement. Several months later, pursuant to 28 U.S.C. § 455(a), Holden filed a motion
for the district court to recuse itself from further proceedings in the case based on judicial
bias in light of the court’s remarks at the suppression hearing. On appeal, he challenges
the district court’s denial of the recusal motion.
We review a recusal decision for abuse of discretion. Kolon Indus. Inc. v. E.I.
DuPont de Nemours & Co., 748 F.3d 160, 167 (4th Cir. 2014); United States v. Whorley,
550 F.3d 326, 339 (4th Cir. 2008). A district court should grant a motion for recusal if the
court’s “impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). For example,
a judge must recuse himself when “he has a personal bias or prejudice concerning a party.”
28 U.S.C. § 455(b)(1). However,
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[O]pinions formed by the judge on the basis of facts introduced or events
occurring in the course of the current proceedings, or of prior proceedings,
do not constitute a basis for a bias or partiality motion unless they display a
deep-seated favoritism or antagonism that would make fair judgment
impossible.
Liteky v. United States, 510 U.S. 540, 555 (1994). Even “remarks . . . that are critical or
disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not
support a bias or partiality challenge.” Id.Holden’s recusal motion was premised on the district court’s determination that he
committed perjury during the suppression hearing and that this would affect his Guidelines
calculations if he were ultimately convicted. However, “judicial rulings alone . . . can only
in the rarest circumstances evidence the degree of favoritism or antagonism required” for
recusal. Liteky, 510 U.S. at 555. The district court identified several instances where
Holden’s testimony at the suppression hearing directly contradicted the officers’ testimony
on material points. We conclude that the district court’s remarks did not demonstrate deep-
seated antagonism or bias against Holden and we discern no abuse its discretion in the
court’s denial of the motion for recusal.
Next, Holden contends that the district court improperly designated him an armed
career criminal. Holden was deemed an armed career criminal because he had at least three
prior violent felony convictions, including three North Carolina breaking and entering
convictions. He argues that these convictions do not qualify as violent felonies under the
Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), because the “building”
element of North Carolina breaking or entering is broader than that of generic burglary.
However, this argument is foreclosed by our decision in United States v. Mungro, 754 F.3d
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267, 272 (4th Cir. 2014). * See United States v. Dodge, 963 F.3d 379, 382-84 (4th Cir.
2020), cert. denied, 141 S. Ct. 1445 (2021).
The district court sentenced Holden to 120 months’ imprisonment on Count 2, and
a concurrent 264 months’ imprisonment on Count 3, a sentence in the middle of the 235- to
293-month advisory Sentencing Guidelines range. Holden argues that the district court
failed to adequately explain his sentence or why it rejected his request for at or below the
low end of the Guidelines range.
“This Court ‘review[s] all sentences—whether inside, just outside, or significantly
outside the Guidelines range—under a deferential abuse-of-discretion standard.’” United
States v. Torres-Reyes, 952 F.3d 147, 151 (4th Cir. 2020) (quoting Gall v. United States,
552 U.S. 38, 41 (2007)). “First, [this Court] ‘ensure[s] that the district court committed no
significant procedural error, such as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.]
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence—including an explanation for any deviation from
the Guidelines range.’” United States v. Fowler, 948 F.3d 663, 668 (4th Cir. 2020) (quoting
Gall, 552 U.S. at 51). “If the Court finds no significant procedural error, it then considers
*
Moreover, although Holden argues for the first time on appeal that the district court
improperly failed to identify the convictions it relied upon to designate him an armed career
criminal, the three breaking and entering convictions were listed as ACCA predicates in
the presentence report and therefore he was on notice that they would be used to support
the ACCA enhancement. Cf. United States v. Holden, 902 F.3d 420, 427 (4th Cir. 2018).
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the substantive reasonableness of the sentence imposed.” United States v. Arbaugh, 951
F.3d 167, 172 (4th Cir. 2020) (cleaned up).
“As is well understood, to meet the procedural reasonableness standard, a district
court must conduct an individualized assessment of the facts and arguments presented and
impose an appropriate sentence, and it must explain the sentence chosen.” United States v.
Nance, 957 F.3d 204, 212 (4th Cir. 2020) (cleaned up). “Specifically, a district court’s
explanation should provide some indication that the court considered the § 3553(a) factors
and applied them to the particular defendant, and also that it considered a defendant’s
nonfrivolous arguments for a lower sentence.” Id. at 212-13 (cleaned up).
Here, the district court imposed a sentence in the middle of the Guidelines range.
The court considered the arguments of both parties and Holden’s allocution and addressed
the § 3553(a) factors on the record. Taking into account, the nature and circumstances of
the offenses, the court explained that would not impose the statutory mandatory minimum
15-year sentence Holden requested because of the seriousness of the offenses. The court
also considered Holden’s history and characteristics, noting that alcohol abuse contributed
to his “lengthy criminal history,” including breaking and entering convictions, numerous
DWI’s, and various violent crimes, including assault on a female, and assault with a deadly
weapon inflicting serious injury, and expressed the great need for incapacitation and just
punishment. We conclude that the court provided an adequate explanation for the sentence
imposed.
“If the sentence ‘is procedurally sound, [this Court] . . . then consider[s] the
substantive reasonableness of the sentence,’ taking into account the totality of the
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circumstances.” United States v. Provance, 944 F.3d 213, 218 (4th Cir. 2019) (quoting
Gall, 552 U.S. at 51). A sentence within the Guidelines range is presumptively reasonable.
United States v. Smith, 919 F.3d 825, 841 n.12 (4th Cir. 2019) (citation omitted). A
defendant can only rebut the presumption by showing the sentence is unreasonable when
measured against the 18 U.S.C. § 3553(a) factors. United States v. Louthian, 756 F.3d 295,
306 (4th Cir. 2014). While Holden contends that the district court imposed a sentence that
was greater than necessary to meet the sentencing goals of § 3553(a), in our view the
district court’s reasoned explanation justified the sentence and Holden fails to rebut the
presumption of reasonableness accorded his within-Guidelines sentence.
Finally, we note that in his opening brief, Holden asserted that the district court
erred by failing to instruct the jury that, in order to establish that he was guilty of the
§ 922(g) offense, the Government was required to prove that Holden knew he was
prohibited from possessing a firearm. Holden subsequently conceded that this argument is
foreclosed by Greer v. United States, 141 S. Ct. 2090, 2095 (2021) (holding that in felon
in possession cases, the Government must prove that defendant knew both that he
possessed a firearm and that he was felon when he possessed the firearm).
Accordingly, we affirm the criminal judgment. 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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