United States v. Holmes

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4519

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DANIEL HOLMES, a/k/a Dan, a/k/a Big Dan,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Sol Blatt, Jr., Senior District
Judge. (9:04-cr-00429-SB-1)

Argued: May 11, 2010 Decided: June 22, 2010

Before TRAXLER, Chief Judge, and NIEMEYER and AGEE, Circuit
Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Robert Sneed, ROB SNEED LAW FIRM, LLC, Greenville, South
Carolina, for Appellant. Eric John Klumb, OFFICE OF THE UNITED
STATES ATTORNEY, Charleston, South Carolina, for Appellee. ON
BRIEF: W. Walter Wilkins, United States Attorney, Columbia,
South Carolina, Matthew J. Modica, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Appellant Daniel Holmes challenges his conviction and

sentence for conspiracy to possess with intent to distribute,

and to distribute, 50 grams or more of cocaine base (crack) and

cocaine. See 21 U.S.C.A. §§ 841(a)(1), 841(b)(1), & 846 (West

1999 & Supp. 2010). We affirm.

I.

This case arises out of Holmes’ involvement in a drug

distribution conspiracy in St. Helena Island and nearby areas in

Beaufort County, South Carolina, from 1992 to 2002. To prove

the conspiracy, the government presented the testimony of

numerous witnesses who were involved in the distribution

activities occurring there and who dealt with Holmes, as well as

the testimony of law enforcement officers in South Carolina,

Florida, and Texas, regarding their encounters with Holmes.

The first category of evidence pertains to Holmes’ drug

dealing activities during the years 1992 to 1994. Aldolpheous

Green, Jamie Green, Joveco Scott, Andre Livingston, and Jermaine

Fields all testified that they purchased crack from Holmes

during this time period. Livingston further testified that

Holmes “was fronting [him] the drugs” for sale, J.A. 442, and

Fields testified that he and Scott “moved drugs for [Holmes],”

2
J.A. 482. On one occasion, Scott and Livingston traveled with

Holmes to Savannah, Georgia, with the intent to purchase drugs.

In May 1993, Beaufort County police officers arrested

Holmes on a fugitive warrant. During a search of Holmes’

vehicle, the officers found crack weighing approximately 2.73

grams. In January 1994, law enforcement officers arranged a

controlled purchase of crack at Holmes’ residence. In March

1994, a second controlled purchase was made. A search warrant

was then obtained for Holmes’ residence where officers found

3.47 grams of crack cocaine, 2.12 grams of powder cocaine, and

firearms. Holmes confessed to the officers that he had been

selling crack for some time and that his 16-year-old nephew had

been selling crack for him. However, Holmes would not identify

his nephew by name, his suppliers, or his customers. 1

The second category of evidence consists of testimony

describing Holmes’ drug dealing activities from 1997 to 2002.

Arthur Chaplin testified that he began selling crack in 1996 and

first purchased crack from Holmes in 1997. In 1998, Chaplin

began purchasing powder cocaine from Holmes. He made two nine-

1
On August 17, 1994, Holmes pled guilty in state court to
separate charges of possession with intent to distribute powder
cocaine on March 19, 1994, possession with intent to distribute
crack on March 15, 1994, and distribution of crack on January
20, 1994. He was sentenced to twelve years in prison, suspended
to six years in prison and five years’ probation. He was
paroled on October 16, 1996.

3
ounce purchases from Holmes for $6,500 each, and traveled with

Holmes to Savannah, Georgia, to pick up the drugs for the second

purchase. Chaplin later gave Holmes $13,000 for the purchase of

a kilogram of cocaine powder, which was to be a part of a larger

purchase of 20 kilograms of cocaine by Holmes from a source in

Coco Beach, Florida. Approximately two weeks after Chaplin gave

Holmes the money, Holmes told Chaplin that the expected shipment

of cocaine had not arrived and he asked Chaplin to travel to

Florida with him and a third man to get the drugs.

On August 2, 1999, while en route to Coco Beach, Florida,

Holmes was stopped by Nassau County Sheriff’s detectives working

with a drug interdiction team just outside of Jacksonville,

Florida. A firearm found in the vehicle was claimed by Holmes

and he was arrested and charged with possession of a firearm by

a convicted felon and possession of a firearm with altered

serial numbers. Chaplin and the third man continued the trip to

Coco Beach, where they were to contact Holmes’ nephew about the

expected shipment. Upon arrival, however, Chaplin was told that

the shipment had still not arrived and the men returned to

Beaufort. When Chaplin arrived in Beaufort, he contacted Ivy

Nesbitt, whom Chaplin understood was Holmes’ “partner[] [i]n the

drug game,” and told Nesbitt that Holmes had been arrested on

the trip. J.A. 291.

4
 Approximately two weeks later, Holmes returned to Beaufort.

Holmes gave Chaplin ten one-pound bags of marijuana to make up

in part for the $13,000 that Chaplin had paid for the unrealized

cocaine shipment. Shortly thereafter, Chaplin was traveling

with Holmes on Seaside Road in St. Helena Island when Beaufort

County officers initiated a traffic stop. Chaplin, who was

driving, accelerated and Holmes threw four ounces of crack,

which he had just given to Chaplin in further repayment of the

debt, out of the window of the vehicle. Chaplin was charged

with failure to stop for a blue light. Holmes was released and

walked back to retrieve the crack he had thrown from the

vehicle. A few days later, Holmes returned the crack to

Chaplin. In December 1999, Chaplin purchased eighteen ounces of

cocaine from Holmes for $12,000.

Romel Middleton testified that in 1997 or 1998, Holmes

approached him “and asked [him] if [he] would like to make some

money.” J.A. 341-42. Holmes proposed that Middleton “sell[]

crack cocaine with the means of making $100 a half a gram,” and

Middleton agreed. J.A. 342. Middleton testified that he was

“working for Mr. Holmes.” J.A. 342. According to Middleton, “a

guy . . . named Ivy” was sometimes present during his dealings

with Holmes. J.A. 344. Middleton testified that Holmes

sometimes “fronted” him drugs and that he usually “came through

. . . with the money” but “[s]ometimes . . . came up short.”

5
J.A. 342. Eventually, Holmes “got tired of it” and “stopped

dealing with” Middleton. J.A. 344. Middleton then began

dealing with Chaplin. Sheniqua Moultrie also testified that she

would bring crack buyers to Holmes and she would get “[e]xtra

pieces of crack” in payment for her efforts. J.A. 419.

Finally, Roderick Chisholm and Travis Polite testified that they

purchased crack from Holmes in 1999. Aldolpheous Green

testified that he sold crack to Holmes in 1998 and 1999.

In addition to Chaplin’s testimony regarding Nesbitt’s

involvement with Holmes, other witnesses also implicated Nesbitt

as a coconspirator with Holmes. Several witnesses, for example,

testified that they would see the men together and believed them

to be working together. Joseph Ferguson testified that he ran

into Nesbitt at a gas station in the late 1990s and Nesbitt told

Ferguson that they had crack for sale at “low prices,”

specifically 7 grams for $200. J.A. 405. Over the next several

weeks, Ferguson twice visited Holmes’ residence on Seaside Road,

where he purchased the drugs from Holmes at the price quoted by

Nesbitt. Dereck Grant testified that in the summer of 1998, he

went to see Nesbitt, his usual supplier, at the Seaside Road

residence and told Nesbitt that he “needed some work.” J.A.

462. In Grant’s presence, Nesbitt told Holmes “that he [Holmes]

could go ahead and handle that” and Holmes got the drugs for

6
Grant. J.A. 462. Grant testified that he also fronted crack to

Holmes in early 2002.

On September 26, 2000, the Beaufort County Sheriff’s office

made a controlled purchase of crack at Holmes’ residence at

Seaside Road. Several days later, the officers executed a

search warrant at the residence. The officers found Holmes in

his bedroom with crack. Additional crack, Ziploc bags, and

razor blades were found in the bedroom of Holmes’ roommate,

Donald Mitchell, who was not present at the time of the search.

Nesbitt, whose legal residence was in Savannah, Georgia, was at

the residence and a truck registered to him with Georgia tags

was in the yard. Officers found digital scales with cocaine

residue, Ziploc bags, razor blades, and over $2,000 in cash

wrapped around three driver’s licenses in the truck. A total of

5.94 grams of crack was seized during the search of the

residence.

On April 16, 2001, Beaufort County Sheriff’s officers

observed Holmes’ vehicle blocking traffic in a roadway. Holmes

and Chaplin were in the vehicle. When the officers attempted to

initiate a traffic stop, Holmes failed to stop. While in

pursuit, the officers observed Holmes throwing crack out of the

vehicle’s window. The total weight of the crack later retrieved

by law enforcement officers was 1.58 grams. Nesbitt came to the

7
scene of the stop and made eye contact with Holmes but did not

communicate verbally with him.

On June 14, 2001, a narcotics interdiction patrol near

Houston, Texas, a known source city for cocaine, stopped a

vehicle carrying Nesbitt, Holmes, and two others. When the

occupants of the vehicle gave conflicting stories to the

officers and behaved nervously, a drug dog was brought to the

scene and alerted officers to possible drugs in a gym bag in the

vehicle. None of the occupants would claim the gym bag. While

no drugs were found, the bag contained $134,500 in U.S. currency

that was “[p]ackaged like dope money.” J.A. 644.

On July 11, 2003, while Holmes was incarcerated for state

drug convictions, federal law enforcement agents served Holmes

with a Texas warrant for money laundering arising from the June

14, 2001, traffic stop. Holmes told the agents that “he was a

small-time dealer and he dealt basically in Beaufort County to

support his family and that he knew that one day he would be

getting arrested.” J.A. 499. 2

On April 14, 2004, Holmes was charged in a two-count

indictment in South Carolina district court. Count One charged

Holmes with conspiracy to possess with intent to distribute, and

2
According to the Texas officer, Nesbitt was subsequently
convicted and sentenced in Texas for money laundering. It
appears that the charges against Holmes were dismissed.

8
to distribute, 50 grams or more of cocaine base (crack) and

cocaine. Count Two charged Holmes with conspiracy to knowingly

use and carry firearms in relation to drug trafficking offenses.

On June 28, 2006, the government filed an information pursuant

to 21 U.S.C.A. § 851 (West 1999) notifying Holmes that he would

be subject to enhanced penalties due to his prior felony drug

convictions. On May 3, 2007, the jury returned a verdict

convicting Holmes of the drug count but acquitting him of the

firearm count. Because Holmes had at least two prior felony

drug convictions, he was sentenced to life imprisonment pursuant

to the mandatory minimum sentence requirement of 21 U.S.C.A.

§§ 841(b)(1)(A). This appeal, challenging both his conviction

and life sentence, followed.

II.

A.

Holmes first contends that the district court erred in

denying his motion for judgment of acquittal because there was

insufficient evidence that he was involved in a drug

distribution conspiracy. He contends that the evidence merely

established that he was a conspiracy of one, engaged in buying

and selling drugs in the area solely for his own benefit.

We review the district court’s denial of a motion for

judgment of acquittal de novo. See United States v. Smith, 451

9
F.3d 209, 216 (4th Cir. 2006); United States v. Alerre, 430 F.3d

681, 693 (4th Cir. 2005). We view the evidence in the light

most favorable to the government and must affirm if the verdict

is supported by “substantial evidence.” United States v.

Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc) (citing

Glasser v. United States, 315 U.S. 60, 80 (1942)).

“[S]ubstantial evidence is evidence that a reasonable finder of

fact could accept as adequate and sufficient to support a

conclusion of a defendant’s guilt beyond a reasonable doubt.”

Id.

In order to prove the charged conspiracy, the government

must establish beyond a reasonable doubt: (1) the existence of

an agreement between two or more persons to distribute and

possess cocaine with intent to distribute; (2) the defendant’s

knowledge of the conspiracy; and (3) that the defendant was

knowingly and voluntarily a part of the conspiracy. See United

States v. Yearwood, 518 F.3d 220, 225-26 (4th Cir. 2008). “By

its very nature, a conspiracy is clandestine and covert, thereby

frequently resulting in little direct evidence of such an

agreement.” Burgos, 94 F.3d at 857. Consequently, the

“conspiracy generally is proved by circumstantial evidence and

the context in which the circumstantial evidence is adduced.”

Id. “Circumstantial evidence tending to prove a conspiracy may

consist of a defendant’s relationship with other members of the

10
conspiracy, the length of this association, the defendant’s

attitude and conduct, and the nature of the conspiracy.” Id. at

858 (internal quotation marks and alterations omitted). “[O]ne

may be a member of a conspiracy without knowing its full scope,

or all its members, and without taking part in the full range of

its activities or over the whole period of its existence.” Id.

(internal quotation marks omitted). It is also not necessary to

prove “a discrete, identifiable organizational structure.” Id.

(internal quotation marks omitted). Rather “contemporary drug

conspiracies can contemplate only a loosely-knit association of

members linked only by their mutual interest in sustaining the

overall enterprise of catering to the ultimate demands of a

particular drug consumption market.” Id. (internal quotation

marks and alterations omitted). “[T]he fact that a conspiracy

is loosely-knit, haphazard, or ill-conceived does not render it

any less a conspiracy–or any less unlawful.” Id. “Under the

applicable principles, trial evidence is sufficient to establish

a single conspiracy where the conspirators are shown to share

the same objectives, the same methods, the same geographic

spread, and the same results.” Smith, 451 F.3d at 218.

Here, there was substantial evidence to establish that a

conspiracy existed between Holmes and Nesbitt to distribute

crack in the St. Helena Island area of Beaufort County over the

same time period. Witnesses admittedly involved in the drug

11
trade in the area testified that they understood that Holmes and

Nesbitt were working together in the distribution efforts there.

Nesbitt resided in Savannah, Georgia, where Holmes would travel

to obtain drugs for sale. And Nesbitt would travel to Beaufort

County where the two men conducted their drug dealing activities

jointly from the Seaside Road residence. At least two witnesses

were directed by Nesbitt to the Seaside Road residence for the

purchase of drugs, where they dealt with either or both of the

men. Ferguson testified that when he went to the residence at

Seaside Road to buy drugs at the price quoted by Nesbitt, he

obtained drugs from Holmes at the same price. Grant testified

that when he went to see Nesbitt at the residence for “work,”

Nesbitt asked Holmes to “handle” getting Grant the drugs. J.A.

462. Nesbitt and his truck, with drug paraphernalia, were

present at the Seaside Road residence during the September 29,

2000, search. And, of course, Nesbitt and Holmes were together

during the June 2001 trip to Texas with $134,500 “[p]ackaged

like dope money” in a bag that smelled of drugs. J.A. 644.

There was also substantial evidence to establish a

conspiracy between Holmes and other residents of the St. Helena

Island area to distribute crack in the area during this time

period. In the early 1990s, Holmes confessed to law enforcement

officers that his nephew was dealing drugs for him. Livingston

testified that Holmes was fronting him drugs for sale.

12
Middleton testified that he worked for Holmes in the late 1990s,

and that Holmes fronted him drugs for sale as well. Moultrie

testified that she brought buyers to Holmes for payment in

crack. And several additional witnesses testified that Holmes

was supplying drugs to them.

In sum, there is substantial evidence to support the jury’s

determination that Holmes was knowingly and voluntarily a part

of a conspiracy with Nesbitt and others to distribute cocaine

and crack in the St. Helena Island area of Beaufort County,

South Carolina, during the charged time period, and that he and

his coconspirators shared the same objectives, methods and

geographic spread in their distribution activities.

Accordingly, the district court properly denied Holmes’ motion

for judgment of acquittal.

B.

Holmes next contends that the trial court erred in

permitting witnesses Ferguson and Grant to testify regarding the

inculpatory statements made by Nesbitt either to them or in

their presence. Specifically, Holmes challenges the admission

of Ferguson’s testimony that Nesbitt said he and Holmes had

crack for sale at 7 grams for $200, which led to Ferguson

purchasing the drugs from Holmes at the quoted price, and

Grant’s testimony that Nesbitt asked Holmes to get Grant the

drugs he needed to sell when Grant sought out work from Nesbitt.

13
 A statement is not hearsay if it is offered against a party

and was made “by a coconspirator of a party during the course

and in furtherance of the conspiracy.” Fed. R. Evid.

801(d)(2)(E). When the government shows by a preponderance of

the evidence that a conspiracy existed of which the defendant

was a member, and that the coconspirator’s statement was made

during the course of and in furtherance of the conspiracy, the

statement is admissible. See United States v. Squillacote, 221

F.3d 542, 563 (4th Cir. 2000); United States v. Neal, 78 F.3d

901, 904-05 (4th Cir. 1996).

We generally review a district court’s decision to admit a

statement under Rule 801(d)(2)(E) for an abuse of discretion.

See Neal, 78 F.3d at 905. Because Holmes did not make this

objection at trial, however, we review for plain error. See

Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725,

731-32 (1993). We will reverse only if (1) the district court

committed an error, (2) the error is plain, and (3) the error

affects substantial rights of the defendant. See id. at 732.

Even if these prerequisites are met, however, “Rule 52(b) leaves

the decision to correct the forfeited error within the sound

discretion of the court of appeals, and the court should not

exercise that discretion unless the error seriously affects the

fairness, integrity or public reputation of judicial

14
proceedings.” Id. (internal quotation marks and alteration

omitted).

Here, the district court did not plainly err in allowing

Nesbitt’s statements into evidence. As discussed above,

substantial evidence established Nesbitt to be a coconspirator

of Holmes. Because Nesbitt’s statements were made in the course

and in furtherance of the conspiracy, they were clearly

admissible under Rule 801(d)(2)(E).

C.

Holmes next contends that various comments the prosecutor

made during closing arguments deprived him of a fair trial.

Because there was no contemporaneous objection made to the

statements, we review for plain error. See Olano, 507 U.S. at

731-32.

“[G]reat latitude is accorded counsel in presenting closing

arguments to a jury. In our adversary system, prosecutors are

permitted to try their cases with earnestness and vigor, and the

jury is entrusted within reason to resolve heated clashes of

competing views.” United States v. Johnson, 587 F.3d 625, 632

(4th Cir. 2009) (internal quotation marks, citations and

alteration omitted). This is particularly true during closing

argument – the “time for energy and spontaneity, not merely a

time for recitation of uncontroverted facts.” Id. (internal

quotation marks omitted). “To be sure, there are some lines

15
that prosecutors may not cross. But to parse through a

prosecutor’s closing statement for minor infelicities loses

sight of the function of our adversary system, which is to

engage opposing views in a vigorous manner.” Id. at 633

(citation omitted); see also Bates v. Lee, 308 F.3d 411, 422

(4th Cir. 2002).

We apply “a two-pronged test for determining whether a

prosecutor’s misconduct in closing argument ‘so infected the

trial with unfairness as to make the resulting conviction a

denial of due process.’” United States v. Wilson, 135 F.3d 291,

297 (4th Cir. 1998) (quoting Darden v. Wainwright, 477 U.S. 168,

181 (1986)). A defendant must demonstrate (1) “that the

prosecutor’s remarks were improper” and (2) “that they

prejudicially affected the defendant’s substantial rights so as

to deprive him of a fair trial.” Id. (internal quotation marks

and alterations omitted). In evaluating whether the

prosecutor’s remarks prejudiced the defendant, we consider

several factors, including:

(1) the degree to which the prosecutor’s remarks had a
tendency to mislead the jury and to prejudice the
defendant; (2) whether the remarks were isolated or
extensive; (3) absent the remarks, the strength of
competent proof introduced to establish the guilt of
the defendant; [and] (4) whether the comments were
deliberately placed before the jury to divert
attention to extraneous matters . . . .

16
United States v. Scheetz, 293 F.3d 175, 186 (4th Cir. 2002);

United States v. Adam, 70 F.3d 776, 780 (4th Cir. 1995).

In the course of his closing argument, the prosecutor made

several comments that Holmes contends were unsupported or

misleading. First, Holmes objects to the prosecutor’s

arguments: (1) that Holmes admitted to the conspiracy when he

confessed to law enforcement officers in 1994 that his nephew

was selling drugs for him and when he confessed to DEA agents in

2002 to being a drug dealer; (2) that Holmes was involved in the

conspiracy with his nephew, Mitchell, Middleton, and Grant; (3)

that Mitchell admitted to being in a conspiracy with Holmes when

he testified that Holmes fronted him drugs; and (4) that the

$134,500 found in the car in Texas with Nesbitt and Holmes was

drug money. However, we find these arguments to have been

sufficiently supported by the testimony to be considered fair

comments upon the evidence. The evidence was sufficient to

establish that Holmes was involved in a conspiracy to distribute

drugs in Beaufort County with Nesbitt and a number of other

persons, including Holmes’ nephew, Mitchell, Middleton, and

Grant. The prosecutor remained within acceptable bounds in

arguing that the statements Holmes made to law enforcement

officers at the beginning and end of the conspiracy period could

fairly be construed, in conjunction with the other evidence, as

admissions on his part to having worked with others to supply

17
drugs to the area. And it was well within the permissible

limits for the prosecutor to argue that the $134,500, packaged

as drug money in a bag that smelled of drugs, had been near

drugs at some point in the past and was intended to be used to

purchase drugs in the future.

Second, Holmes claims that the prosecutor made three

misstatements regarding the evidence presented at trial. Holmes

asserts that the prosecutor erroneously represented to the jury

that no specific promises had been made to Livingston or Chisolm

in return for their testimony against Holmes. Holmes contends

that the prosecutor erroneously represented that Chisolm and

Scott had testified in a previous trial regarding their dealings

with Holmes. And, Holmes objects to the prosecutor’s statement

that when Chaplin told Nesbitt of Holmes’ arrest in Florida,

Nesbitt told Chaplin not to worry because they would take care

of it and get Holmes out of jail.

As to the prosecutor’s statements regarding the lack of

promises made to the witnesses, we find no error. Chisolm

testified that the government had promised that his cooperation

would be reported to the court and Livingston implied that he

expected some benefit if he cooperated. However, neither

statement or expectation is inconsistent with the prosecutor’s

correct representation that no specific promises had been made

to either man.

18
 With regard to the remaining remarks, the prosecutor does

appear to have incorrectly expanded upon the testimony actually

elicited at trial. Although both Scott and Chisolm testified

that they had provided testimony in prior trials, Scott was not

asked whether his prior testimony included information about

Holmes and Chisolm was not asked about the specifics of his

prior testimony about Holmes. However, even if the prosecutor’s

remarks were improper, the comments did not “so infect[] the

trial with unfairness as to make the resulting conviction a

denial of due process.” Wilson, 135 F.3d at 297 (internal

quotation marks omitted). The remarks were brief and isolated,

there is no indication that the prosecutor offered the remarks

with an intention to mislead the jury or that they otherwise

diverted the jury’s attention from the evidence, and the proof

of guilt in the case was significant. In addition, the jury was

instructed that statements made by counsel were not to be

considered evidence in the case. See Bennett v. Angelone, 92

F.3d 1336, 1346-47 (4th Cir. 1996). Accordingly, we find no

reversible error in the prosecutor’s statements, nor can we

conclude that their cumulative effect warrants reversal. See

United States v. Martinez, 277 F.3d 517, 534 (4th Cir. 2002).

19
 III.

A.

Holmes next argues that the district court erred in

sentencing him to life imprisonment under 21 U.S.C.A.

§ 841(b)(1)(A), because he did not have the requisite two prior

felony drug convictions.

Prior to trial, the government filed an information under

21 U.S.C.A. § 851, notifying Holmes that he was subject to an

enhanced sentence under § 841(b)(1)(A), based upon prior felony

drug convictions. At sentencing, the government introduced five

such convictions into evidence. The first three convictions

were obtained on August 17, 1994, and consisted of (1) a

conviction for distribution of crack on January 20, 1994, based

upon a controlled purchase made at Holmes’ Peaches Hill Road

residence in St. Helena; (2) a conviction for distribution of

crack on March 15, 1994, based upon a controlled purchase made

at the Peaches Hill Road residence; and (3) a conviction for

possession of cocaine with intent to distribute on March 19,

1994, when Beaufort County officers executed a search warrant at

Holmes’ Peaches Hill Road residence and seized cocaine and

crack. Holmes was sentenced to 12 years’ imprisonment for the

three convictions, suspended upon serving 6 years’ imprisonment

and 5 years’ probation. He was paroled on October 16, 1996, and

granted early termination of his probation on January 11, 1999.

20
The remaining two felony drug convictions were obtained on March

11, 2002, and consisted of (1) a conviction for possession of

crack cocaine on September 29, 2000, arising out of a search

warrant executed at Holmes’ residence at 527 Seaside Road, for

which he was sentenced to two years’ imprisonment, and (2) a

conviction for possession with intent to distribute crack

cocaine on April 16, 2001, arising out of the traffic stop for

which he was sentenced to six years’ imprisonment.

Holmes contends that the district court erred in counting

the 1994 felony convictions as separate offenses for purposes of

§ 841(b)(1)(A), and in relying upon any of the five convictions

as predicate offenses because they occurred during the

conspiracy period and were intrinsic to it. We disagree.

“[F]or purposes of 21 U.S.C. § 841(b) . . . , the term

‘prior convictions’ refers to ‘separate criminal episodes, not

separate convictions arising out of a single transaction.’”

United States v. Ford, 88 F.3d 1350, 1365 (4th Cir. 1996)

(quoting United States v. Blackwood, 913 F.2d 139, 145-46 (4th

Cir. 1990)). When evaluating whether convictions are from

separate and distinct criminal episodes, we consider, among

other things, whether the time between the crimes underlying the

convictions allowed the defendant sufficient time “to make a

conscious and knowing decision to engage in another drug sale.”

United States v. Letterlough, 63 F.3d 332, 337 (4th Cir. 1995)

21
(holding that sales of crack occurring nearly two hours apart

arose out of “separate and distinct criminal episodes”).

Here, the district court did not err in counting the three

1994 convictions as separate offenses. Holmes’ first two

convictions for distribution of crack arose from incidents

occurring nearly two months apart. The third conviction arose

from the execution of a search warrant four days after the

second controlled purchase was made. Clearly, the convictions

arose out of separate and distinct criminal episodes, even

though they may all have occurred “pursuant to a master plan to

sell crack cocaine as a business venture.” Id.

The fact that the prior felony drug offenses occurred

during the period of the conspiracy for which he was convicted

also does not entitle Holmes to relief. “When a defendant is

convicted of a drug conspiracy under 21 U.S.C. § 846, prior

felony drug convictions that fall within the conspiracy period

may be used to enhance the defendant’s sentence if the

conspiracy continued after his earlier convictions were final.”

Smith, 451 F.3d at 224-25. “[B]ecause the ‘purpose of the

mandatory minimum enhancement is to target recidivism, it is

more appropriate to focus on the degree of criminal activity

that occurs after the defendant’s conviction for drug-related

activity is final rather than when the conspiracy began.’”

United States v. Howard, 115 F.3d 1151, 1158 (4th Cir. 1997)

22
(quoting United States v. Hansley, 54 F.3d 709, 717 (11th Cir.

1995)).

Here, the government presented substantial evidence that

Holmes continued to engage in the conspiracy well after his 1994

convictions became final, most notably, evidence of all of the

drug distribution activities he engaged in after he was paroled

in 1996 including, but not limited to, the conduct that served

as the basis for the two 2002 convictions. Holmes’ continued

participation in the conspiracy after his prior drug convictions

became final “is precisely the type of recidivism to which

section 841 is addressed.” Howard, 115 F.3d at 1158.

B.

Holmes also contends that his counsel was ineffective in

failing to object to the use of his prior felony convictions to

impose the enhanced sentence under §§ 841(b)(1)(A) & 851.

However, claims of ineffective assistance of counsel must be

brought in a collateral proceeding under 28 U.S.C.A. § 2255

(West Supp. 2010) unless it conclusively appears from the face

of the record that his counsel was ineffective. See United

States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). In

light of our resolution of the issue above, Holmes has clearly

failed to make that showing here.

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 C.

Holmes’ final contention is that the district court plainly

erred in failing to apply the sentencing guidelines and

sentencing factors under 18 U.S.C.A. § 3553(a), in accordance

with our decision in United States v. Green, 436 F.3d 449, 456

(4th Cir. 2006), thus requiring a remand for resentencing.

Based upon the total offense level and criminal history, as

calculated in his presentence report, Holmes’ guideline range

was 360 months to life imprisonment. However, because he had

two prior felony drug convictions, Holmes’ statutory mandatory

minimum sentence was life imprisonment under § 841(b)(1)(A),

which became his guideline sentence. At the sentencing

proceeding, the district court recognized that the guidelines

range was 360 months to life and that the guidelines and

§ 3553(a) factors would have given the court some discretion in

sentencing. However, the statutory, mandatory minimum sentence

provision based upon the prior felony drug offenses removed any

such discretion, rendering it unnecessary to specifically

address Holmes’ objections to the presentence report or the

§ 3553 factors. Instead, the district court adopted the

presentence report without change and correctly determined that

the mandatory minimum sentence of life imprisonment applied.

Although the Supreme Court’s decision in United States v.

Booker, 543 U.S. 220 (2005), made the guidelines advisory, it

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did not alter the mandatory nature of statutorily required

minimum sentences. See Green, 436 F.3d at 455-56; United States

v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005). “Except upon

motion of the Government on the basis of substantial assistance,

a district court still may not depart below a statutory

minimum.” Robinson, 404 F.3d at 862. Accordingly, we hold that

the district court did not plainly err in imposing Holmes’

sentence of life imprisonment, and Holmes is not entitled to

resentencing.

IV.

For the foregoing reasons, we affirm Holmes’ convictions

and sentence.

AFFIRMED

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