UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4916
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SAMUEL RODNEY HOLMES,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(1:05-cr-01253-MBS-1)
Submitted: July 2, 2009 Decided: July 30, 2009
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Russell W. Mace, III, THE MACE FIRM, Myrtle Beach, South
Carolina, for Appellant. W. Walter Wilkins, United States
Attorney, Robert F. Daley, Jr., Mark C. Moore, Assistant United
States Attorneys, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Samuel Rodney Holmes was convicted by a jury of
conspiracy to possess with intent to distribute and distribute
fifty grams or more of cocaine base (crack), 21 U.S.C. § 846
(2006) (Count One), and possession with intent to distribute and
distribution of five grams or more of crack, 21 U.S.C. § 841
(2006) (Count Two). He received a sentence of 360 months
imprisonment. Holmes appeals his convictions and sentence,
arguing that the district court (1) abused its discretion in
denying his pre-trial motion for a continuance; (2) clearly
erred in giving him a two-level increase for possession of a
dangerous weapon during the offense and an adjustment for
obstruction of justice based on his perjured trial testimony,
U.S. Sentencing Guidelines Manual §§ 2D1.1(b)(1), 3C1.1 (2007);
and (3) plainly erred in computing his criminal history. We
affirm.
Holmes sought a continuance a few days before trial,
after a jury had been selected, on the ground that his attorney
required more time to explore proffers from government witnesses
which had been provided in discovery and a possible alibi
defense. The district court denied a continuance, finding that
several continuances had been granted already, that Holmes had
objected to a prior continuance in October 2006, indicating at
that time that he was ready to go to trial, and that the notice
2
of alibi defense filed in January 2007 identified the witnesses
on which Holmes intended to rely.
At trial, a law enforcement officer, Michael Jones,
and a confidential informant, Shawn Hicks, testified that, on
February 27, 2002, in a controlled transaction, Hicks called
Holmes on his cell phone to ask if he could buy half an ounce of
crack. Holmes offered to sell Hicks a full ounce, to which
Hicks agreed. Jones testified that Holmes arrived at the
location for the sale driving a white Cadillac, that he
recognized Holmes’ voice during the recorded sale, and that he
and another officer followed Holmes’ Cadillac after the sale was
completed, noted the license plate number, and visually
identified Holmes at a gas station where they pulled in next to
his car. Keith Butler testified that he observed Holmes cook
seven to nine ounces of powder cocaine into crack once, and saw
him cook four to six ounces of cocaine into crack approximately
seven times. Butler said he once saw a sawed-off shotgun in
Holmes’ kitchen, where the crack was cooked; Holmes referred to
the shotgun as his “baby.” Vernon Clay Lawrence testified that
he bought powder cocaine several times in 2001 or 2002.
In Holmes’ defense, his mother testified that she
bought the car a few days before the controlled buy and gave it
to him several months later. She said that, on the date of the
controlled buy, the car was parked in her yard, and that it had
3
a different license plate number on that date than the one
observed by the law enforcement officer after the controlled
buy. Holmes’ girlfriend testified that she lived in Columbia,
South Carolina, at the time and that Holmes was probably with
her in Columbia on the night of the controlled buy. Holmes
himself testified that all the witnesses who testified that he
cooked crack or sold drugs had testified falsely. He also said
he drove the white Cadillac for the first time on
February 28, 2002.
At sentencing, Holmes again maintained his innocence
and objected to all the drug amounts used to compute his offense
level, as well as the firearm enhancement and the obstruction of
justice adjustment recommended in the presentence report. He
testified that he had never owned a gun, that he did not sell
crack to Hicks on February 27, 2002, and that Hicks, Keith
Butler, and Vernon Clay Lawrence all gave false testimony
against him. The district court overruled his objections,
determined that the advisory guideline range was 360 months to
life, and sentenced Holmes at the bottom of the range.
On appeal, Holmes first challenges the district
court’s rulings concerning his sentence. We agree that the
district court erred by summarily overruling his objection to
the obstruction of justice adjustment without finding, by a
preponderance of the evidence, that Holmes’ trial testimony
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constituted perjury, that is, false testimony about a material
matter, given “with the willful intent to deceive (rather than
as a result of confusion, mistake, or faulty memory).” United
States v. Quinn, 359 F.3d 666, 681 (4th Cir. 2004) (internal
quotation and citations omitted). However, without the
adjustment, Holmes’ guideline range would remain at 360 months
to life. An offense level of 40, with criminal history category
IV (or with category III), yields a guideline range of 360
months to life. USSG Ch. 5, Pt. A (Sentencing Table).
Therefore, we conclude that the error is harmless. Williams v.
United States, 503 U.S. 193, 203 (1992) (noting that sentencing
error is subject to harmless error analysis and remand is not
required if “the error did not affect the district court’s
selection of the sentence imposed”); see also United States v.
Delgado-Martinez, 564 F.3d 750, 752-53 (5th Cir. 2009); United
States v. Smith, 562 F.3d 866, 874 (7th Cir. 2009); United
States v. Anderson, 526 F.3d 319, 324 (6th Cir. 2008); United
States v. Smalley, 517 F.3d 208, 212 (3d Cir. 2008); United
States v. Kochekian, 977 F.2d 905 (4th Cir. 1992).
We also agree (and the government concedes) that the
district court plainly erred in assigning two criminal history
points under § 4A1.1(b) for Holmes’ 1991 sentence for driving
under a suspended license where the sentence was sixty days
custody or a $300 fine. Application Note 4 to § 4A1.2 directs
5
that a “sentence which specifies a fine or other
non-incarcerative disposition to a term of imprisonment . . . is
treated as a non-imprisonment sentence.” Under United States v.
Olano, 507 U.S. 725, 732-37 (1993), unpreserved error may be
corrected only if error occurred that was plain, that affects
the defendant’s substantial rights, and that, if uncorrected,
would seriously affect the fairness, integrity, or public
reputation of judicial proceedings. Had Holmes not received
these two criminal history points, he would have been in
category III. However, even if Holmes were in criminal history
category III and his offense level were reduced to 40, his
guideline range would remain 360 months to life. Therefore,
Holmes’ substantial rights were not affected by the error, and
we decline to notice it.
We are satisfied that the district court did not
clearly err in making the two-level enhancement for possession
of a deadly weapon during the offense under § 2D1.1(b)(1).
United States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001).
(stating standard of review). Application Note 3 to § 2D1.1
explains that the enhancement “should be applied if the weapon
was present, unless it is clearly improbable that the weapon was
connected with the offense.” Thus, the government “need only
show that the weapon was present during the relevant illegal
drug activity.” McAllister, 272 F.3d at 234.
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Holmes argues that Keith Butler’s testimony that he
saw a sawed-off shotgun in the kitchen of Holmes’ trailer was
insufficient to justify the enhancement because Holmes did not
sell drugs at his home and there was no evidence he had the gun
with him for protection during any of the drug sales that
occurred away from his residence. Thus, he contends that the
government did not show that the gun was connected to the
offense. However, because the evidence established that Holmes
possessed a firearm in the place where he regularly cooked
cocaine into crack for Cedric Butler, and there was no evidence
that would support a finding that it was clearly improbable that
the gun was connected to Holmes’ drug activity, we conclude that
the district court did not clearly err in making the
enhancement.
The district court’s denial of a continuance is
reviewed for abuse of discretion. United States v. Williams,
445 F.3d 724, 738 (4th Cir. 2006). The trial court abuses its
discretion when its denial of a motion for continuance is “an
unreasoning and arbitrary insistence upon expeditiousness in the
face of a justifiable reason for delay.” Id. at 739 (internal
quotation omitted).
Holmes maintains that the district court’s denial of
his last-minute request for a continuance deprived him and his
attorney of adequate time to examine the discovery and prepare a
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defense. Holmes claims that he was unable to introduce into
evidence documents relating to his mother’s purchase of the
white Cadillac he was alleged to have driven during the
controlled buy on February 27, 2002. 1 Holmes maintains that the
documentation would have supported his mother’s testimony that
her Cadillac had a different license number on that date than
the number observed by Agent Jones. The government opposed
introduction of these documents because they were produced on
the morning of trial and not in a timely manner according to the
discovery rules, thus preventing the government from being
prepared to cross examine the witness adequately about the
documents. 2
At trial, Moore testified that she purchased the
Cadillac on February 22, 2002, that it was registered in her
name, that the license number when she bought it was 391 NLE,
and that the number was changed a month later. The jury thus
had to weigh conflicting testimony about the license number of
the Cadillac owned by Moore on the day of the controlled buy
without documentation to support either the testimony of Moore
1
Holmes does not contend that his attorney had insufficient
time to examine the proffer statements of government witnesses.
2
During the pretrial conference when the district court
denied Holmes’ motion for a continuance, defense counsel did not
suggest that time might be needed to allow the government to
examine such documents.
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or Agent Jones. The government’s case, however, rested mainly
on the testimony of Jones and the informant, who both identified
Holmes as the seller.
Given that several continuances had been granted
before the district court denied Holmes’ request for an
additional continuance, 3 and that the trial attorney was
appointed several months earlier, apparently received all
discovery well in advance of the trial date, and had ample time
to explore a defense, we conclude that the district court did
not abuse its discretion in denying a continuance on the eve of
trial.
We therefore affirm the convictions and the sentence
imposed by the district court. 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
3
The record reveals that the district court granted five
continuances before trial.
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