United States v. Holmes

Court Case Details
Court Case Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-4869


UNITED STATES OF AMERICA,

Plaintiff - Appellee,


v.


THESSALONIAS ANRE HOLMES,

Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(1:07-cr-00317-MBS-1)


Submitted: May 5, 2010

Decided: May 28, 2010


Before MOTZ, AGEE, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John C. Neiman, Jr., BRADLEY ARANT BOULT CUMMINGS LLP,
Birmingham, Alabama, for Appellant. John David Rowell,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Thessalonias A. Holmes appeals his conviction and

sentence of 121 months, imposed after he pled guilty to

possession with intent to distribute cocaine, in violation of 21

U.S.C. § 841(a)(1) (2006). Appellate counsel has filed a brief

pursuant to Anders v.

California, 386 U.S. 738 (1967),

questioning whether the United States breached its plea

agreement in failing to move to reduce Holmes’s sentence under

Rule 35(b) of the Federal Rules of Criminal Procedure or 18

U.S.C. § 3553(e) (2006), but concluding there are no meritorious

grounds for appeal. Holmes filed a pro se supplemental brief,

raising the same issue. The Government elected not to file a

brief. We previously placed this case in abeyance pending the

outcome of United States v. Peake, No. 08-5132. As our mandate

has now issued in Peake

, this case has been removed from

abeyance, and is ripe for review.

When a claim of breach of a plea agreement has been

preserved, we review the district court’s factual findings for

clear error and its “application of principles of contract

interpretation de novo.”

United States v. Bowe, 257 F.3d 336,

342 (4th Cir. 2001). However, because Holmes did not claim in

the district court that the Government had breached the plea

agreement, appellate review in this case is for plain error.

Puckett v. United States, 129 S. Ct. 1423, 1428 (2009).

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Plea agreements are grounded in contract law, and both

parties should receive the benefit of their bargain. Bowe, 257

F.3d at 345. The government breaches the plea agreement when a

promise it made to induce the plea goes unfulfilled.

Santobello v. New York, 404 U.S. 257, 262 (1971). Because of

constitutional and supervisory concerns, the government is held

to a greater degree of responsibility for imprecision or

ambiguities in plea agreements. United States v. Harvey, 791

F.2d 294, 300-01 (4th Cir. 1986). Where an agreement is

ambiguous in its terms, the terms must be construed against the

government. Id.

at 300, 303. However, “[w]hile the

[g]overnment must be held to the promises it made, it will not

be bound to those it did not make.” United States v. Fentress

,

792 F.2d 461, 464-65 (4th Cir. 1986). After reviewing the

record, we find that the Government’s failure to move for a

downward departure or reduction in sentence was not in breach of

the plea agreement. Accordingly, this issue is without merit.

In reviewing the remainder of the record, we note that

Holmes’s sentence appears procedurally unreasonable, as the

district court failed to provide any explanation for imposing

the sentence it did. We recently held, in

United States v.

Carter, 564 F.3d 325 (4th Cir. 2009), that a district court must

conduct an “individualized assessment” of the particular facts

of every sentence, on the record, whether the court imposes a

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sentence above, below, or within the guidelines range. Id.

at

330. Here, the district court summarized its reasons for

Holmes’s sentence as follows:

Mr. Holmes, having calculated and considered the
advisory sentencing guidelines and having also
considered the relevant statutory sentencing factors
that are contained in Title 18, United States Code
Section 3553(a), it is the judgment of the court that
the Defendant, Thessalonias Anre Holmes, is hereby
committed to the custody of the Bureau of Prisons to
be imprisoned for a term of 121 months.

The findings of fact of the presentence report are
adopted as the reasons for the sentence and they are
incorporated by reference.

Except for noting that its sentence was based on the

findings of fact in the presentence report, the district court

failed to provide any reasons why a guidelines sentence was

appropriate for Holmes or why it chose to sentence him at the

low end of the advisory guideline range. Therefore, it is clear

that the district court failed to provide an individualized

assessment as required by Carter

.

However, Holmes did not object to the adequacy of the

district court’s explanation in the district court. Where a

defendant does not object to a district court’s failure to

explain an imposed sentence, or otherwise preserve the issue for

review by requesting a sentence shorter than the one he

received, our review is for plain error.

See United States v.

4

Lynn

, 592 F.3d 572, 578-79 (4th Cir. 2010). Under plain error

review,

[A]n appellate court may correct an error not brought
to the attention of the trial court if (1) there is an
error (2) that is plain and (3) that affects
substantial rights. If all three of these conditions
are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if
(4) the error seriously affects the fairness,
integrity, or public reputation of judicial
proceedings.

United States v. Carr, 303 F.3d 539, 543 (4th Cir. 2002)

(internal quotation marks, citations, and alterations omitted).

In the sentencing context, an error affects substantial rights

if the defendant can show that the sentence imposed “was longer

than that to which he would otherwise be subject.” United

States v. Washington

, 404 F.3d 834, 849 (4th Cir. 2005)

(internal quotation marks and citation omitted). After

reviewing the proceedings, we conclude any error the district

court may have committed in failing to adequately explain

Holmes’s sentence did not affect Holmes’s substantial rights,

and is therefore not cognizable on appeal.

We have reviewed the entire record in accordance with

Anders and have not identified any meritorious issues for

appeal. Accordingly, we affirm the judgment of the district

court. This court requires counsel to inform Holmes, in

writing, of his right to petition the Supreme Court of the

United States for further review. If the client requests such

5

petition be filed, but counsel believes that doing so would be

frivolous, counsel may move this court to withdraw from

representation. Counsel’s motion must state that a copy of the

motion was served on the client. 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

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