UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4819
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HAROLD B. HOLCOMBE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:09-cr-00081-REP-1)
Submitted: March 5, 2010 Decided: April 8, 2010
Before WILKINSON, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Amy L. Austin,
Assistant Federal Public Defender, Richmond, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Sara E.
Chase, Richard D. Cooke, Assistant United States Attorneys,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harold B. Holcombe appeals his sentence of twelve
months and one day for driving as a habitual offender, third
offense, in violation of 18 U.S.C. § 13 (2006), assimilating Va.
Code Ann. § 46.2-357(B)(3) (Michie 2005). For the reasons that
follow, we affirm.
Holcombe, who has been adjudged a habitual offender in
Virginia, was driving through the Fredericksburg and
Spotsylvania National Military Park when he was spotted by a
park ranger and pulled over for not wearing a safety belt. At
the time, Holcombe’s driver’s license was suspended.
Holcombe pled guilty to the offense. At sentencing,
he requested that he be sentenced to the one-year mandatory
minimum term under Virginia law, and that part of his sentence
be served in home confinement. Virginia law requires a
mandatory minimum sentence of one year for a violation of
§ 46.2-357(B)(3), all of which must be served in a correctional
facility. Holcombe argued that the Assimilated Crimes Act, 18
U.S.C. § 13, affords the district court the discretion to
sentence him to a partial term of home confinement in lieu of
time in a correctional facility. The district court fully
considered the question and determined that it lacked that
discretion, that the law required a term of incarceration, and
that in any event, the court would not impose home confinement
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even if it had the discretion to do so. Because the court
unambiguously announced that it would not have permitted
Holcombe to serve his sentence under home detention even if it
had discretion to do so, Holcombe cannot point to any non-
harmless error. *
Holcombe further challenges the adequacy of the
district court’s explanation of its statement that Holcombe
would be sentenced to a term of imprisonment regardless of
whether it could instead have imposed home confinement for some
or all of the applicable term. We have reviewed the record and
find no error in the district court’s explanation.
The judgment of the district court is therefore
affirmed. 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
*
We note that both Holcombe and the Government have
requested oral argument to address a district court’s authority
under the circumstances presented to permit a defendant to serve
a sentence under home detention in lieu of confinement in a
correctional facility. Because there is no non-harmless error
alleged, we deny that request.
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