IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-11177
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
MARVIN TERRANCE HOLLOWAY
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(4:94-CR-121-Y)
May 23, 1997
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Marvin Terrance Holloway pleaded guilty to being an accessory after the fact to the
commission of the offense of kidnaping and with interstate transportation in aid of a racketeering
enterprise. He appeals his sentence.
According to the written factual resume agreed to by both parties, Holloway transported
Orlando Hall from Pine Bluff, Arkansas to Little Rock, Arkansas so that Hall could fly to the
*
Pursuant to Local Rule 47.5, the court has determined t hat this opinion should not be
published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.
Dallas/Fort Worth area for a drug deal. Hall met with two other men in Dallas and struck a deal, but
the men ultimately refused to deliver drugs to Hall and kept $5,000 of Hall’s money. Hall called
Holloway, and asked him to find Bruce Webster and send him to Dallas. Hall then transported
Webster to the airport. The next day, Holloway helped Webster obtain some of Hall’s money, which
Webster was to use to rent a hotel room for two other conspirators. Holloway then went to the
airport to pick up Hall. Hall told Holloway that Webster had kidnaped a woman from the home of
the Dallas drug dealers. Holloway and Hall drove to a local hotel, where Holloway saw the woman
bound. Holloway left the hotel with Webster and Hall, and heard Webster and Hall plot to kill the
woman. After the woman was murdered, Holloway consoled another coconspirator and suggested
ways to remove evidence from a car used in the murder scheme.
Holloway’s brief may be read to make two contentions on appeal: U.S.S.G. § 1B1.3 of the
guidelines should not have been applied to attribute Holloway’s codefendants’ conduct to his
sentence; and the district court did not depart from the sentencing guidelines sufficiently under
U.S.S.G. § 5K1.1.
Holloway’s claim that the “actions in kidnaping and killing [the victim] clearly had nothing
to do with the Count 2 jointly undertaken activity, that is, Orlando Hall traveling to buy drugs” is
without merit. The district court correctly applied U.S.S.G. § 2D1.1(d)(1), which requires the
application of the murder guidelines, because the “underlying crime” of Holloway’s conviction was
conspiracy to distribute marihuana. See U.S.S.G. § 2E1.2(a)(2). The victim here was “killed under
circumstances that would constitute murder under 18 U.S.C. § 1111 . . . .” § 2D1.1(d)(1). Applying
§ 2E1.2(a)(2) and § 2D1.1(d)(1), the guidelines point to § 2A1.1(a), which the district court correctly
read to give Holloway a base offense level of 43. Furthermore, given the district court’s factual
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findings, we find no abuse of discretion in attributing the actions of Holloway’s codefendants to
Holloway at sentencing. Even under the defendant’s reasoning, he is responsible for “all reasonably
foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity . .
. .” § 1B1.3(a)(1)(B). Holloway took Webster to the airport knowing that Hall and Webster planned
to retaliate for the Dallas dealers’ beating and theft from Hall. Holloway drove Hall from the airport,
knowing that Hall had kidnaped the victim in retaliation for the drug theft. Holloway observed the
victim bound in a hotel room, in his words, “praying for her life.” Holloway loaned Hall his car,
knowing that Hall and Webster planned to kill the girl. The court did not abuse its discretion by
finding that the murder was reasonably foreseeable to Holloway.
Holloway’s claim that the district court did not depart enough from his guideline sentence is
without merit. Ordinarily, the district court’s decision as to t e extent of a downward departure
h
below a statutory minimum sentence is committed to the almost complete discretion of the district
court. U.S. v. Alvarez, 51 F.3d 36, 41 (5th Cir. 1995). A defendant may not appeal the extent of
the departure under § 5K1.1 unless the departure was made in violation of law. Id. at 39. Holloway
attempts to escape this bar by characterizing the issue as one that involves a “violation of law.” He
cites no authority, nor are we aware of any, for the proposition that the district court may not
consider the otherwise relevant conduct of coconspirators whenever the government files a § 5K1.1
motion for a downward departure. Holloway has not demonstrated that the sentence was imposed
in violation of law. Moreover, there was no abuse of discretion; while the district court was free to
depart downwards based on Holloway’s post-arrest cooperation, that did not obligate the court to
ignore reasonably foreseeable conduct attributable to Holloway’s pre-arrest actions.
AFFIRMED.
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