United States v. Holmes

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4663

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

PAUL ANTHONY HOLMES, a/k/a Pauly,

Defendant – Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:08-cr-00604-CMC-1)

Submitted: August 5, 2010 Decided: September 9, 2010

Before SHEDD, DUNCAN, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Marcia G. Shein, LAW OFFICES OF MARCIA G. SHEIN, P.C., Decatur,
Georgia, for Appellant. Kevin F. McDonald, Acting United States
Attorney, Jeffrey Mikell Johnson, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Paul Anthony Holmes appeals his sentence following a

guilty plea to conspiracy to distribute one kilogram or more of

heroin, in violation of 21 U.S.C. § 846 (2006). Holmes

challenges the district court’s decision to give him a

four-level role adjustment pursuant to USSG § 3B1.1(a), and a

two-level obstruction of justice increase pursuant to USSG

§ 3C1.1.

I. Role in the Offense

This court reviews sentencing adjustments based on a

defendant’s role in the offense for clear error. United

States v. Sayles, 296 F.3d 219, 224 (2002). We may affirm a

sentence enhancement for any reason appearing in the record.

United States v. Garnett, 243 F.3d 824, 830 (4th Cir. 2001).

A defendant’s offense level is to be increased by four

levels “[i]f the defendant was an organizer or leader of a

criminal activity that involved five or more participants.”

USSG § 3B1.1(a). A “participant” is someone who can be held

“criminally responsible” for the commission of the offense. See

USSG § 3B1.1 cmt. 4. The following factors should be considered

in determining whether a role adjustment is warranted:

(1) the exercise of decision making authority, (2) the
nature of participation in the commission of the
offense, (3) the recruitment of accomplices, (4) the

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claimed right to a larger share of the fruits of the
crime, (5) the degree of participation in planning or
organizing the offense, (6) the nature and scope of
the illegal activity, and (7) the degree of control
and authority exercised over others.

See United States v. Kellam, 568 F.3d 125, 148 (4th Cir. 2009)

(citing USSG § 3B1.1 cmt. 4).

However, a defendant need only exercise control over

one other participant in order to be deemed a leader or

organizer. See USSG § 3B1.1 cmt. 2. This is “not a

particularly onerous showing,” requiring “only a conclusion that

[the defendant] supervised at least one . . . participant,” and

it “does not require the court to identify specific examples.”

See United States v. Hamilton, 587 F.3d 1199, 1222 (10th Cir.

2009) (citations omitted). Moreover, once the court has

determined that the defendant exercised some control over at

least one participant, it need look no further into whether or

not the defendant exercised control over others. Id. at 1223.

Taking the record as a whole, there is ample evidence

to support the district court’s determination that Holmes was a

leader or organizer of a criminal enterprise consisting of five

or more people. First, the Government’s unopposed summary of

the evidence at Holmes’ plea colloquy establishes that he was a

part of a criminal conspiracy comprised of at least five

individuals, and that his co-defendant, Shaheed Chaplin, was his

“right hand person.” While Holmes’s acquiescence to these facts

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is arguably enough to establish not only the minimum threshold

size of his organization, but also that he exercised control

over Chaplin, thereby ending this Court’s inquiry, the testimony

offered at sentencing largely substantiates the Government’s

claims. Cf. United States v. Reid, 523 F.3d 310, 317 (4th Cir.

2008) (“buy-sell transaction[s]” and “continuing relationships,”

coupled with a large quantity of drugs, support an inference

that the parties were co-conspirators) (citations omitted).

Onza Lynch, a cooperating co-conspirator, whom the

district court credited, made clear that there were at least

eight individuals working for Holmes. Moreover, the number of

co-conspirators included in the organization would no doubt

increase dramatically if the court were to include the various

other lower-level dealers that the testimony established Holmes

supplied. Cf. United States v. Fells, 920 F.2d 1179, 1182-83

(4th Cir. 1990) (counting lower-level drug dealers, but not end

users, in computation of organizational size). Accordingly, the

district court did not clearly err with regard to its

calculations of the size of Holmes’ criminal enterprise.

As for the level of control Holmes had over his

cohorts, the testimony elicited at sentencing, as credited by

the district court, clearly established that Holmes was a leader

and/or organizer of his group. In addition to being the primary

supplier to several street level dealers and personally

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trafficking large quantities of drugs, Holmes retained decision-

making authority over his drugs and the people working under

him. He set his own prices and negotiated arrangements with

lower-level dealers as needed. Moreover, it is clear that

Holmes possessed the initial knowledge necessary to package and

distribute the drugs, which he passed on to his co-conspirators.

Holmes also decided who could work for him. He

screened new dealers to determine if they were suitable

candidates, and “laid down the law” to recruits as to how

financial obligations were to be handled. He provided other

dealers with samples of his wares, made initial arrangements,

and then passed them off to his underlings for day-to-day

servicing, no doubt in an effort to lower his profile and/or

reduce his criminal exposure.

Holmes also clearly claimed a right to a larger share

of the proceeds of his drug sales than his co-conspirators. The

testimony of multiple witnesses indicated that Holmes would set

his price and then “front” drugs to his dealers, essentially on

credit, to sell for him; the dealers would make a profit only if

they were able to sell the drugs for more than Holmes claimed as

his own share. Invariably, the testimony indicated that Holmes

made more off each transaction than his lower-level dealers did,

and more importantly, it showed that Holmes took priority when

it was time to “settle up.”

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Holmes argues that the district court erred by giving

him a four-level role adjustment because, he contends, the

evidence does not establish that he is anything more than a mere

seller of drugs. Holmes argues that because his relationships

with Chaplin, Lynch, and the various other downstream dealers he

supplied were informal and non-exclusive, and because he sold

drugs on a consignment basis, he is somehow less of an organizer

or leader. Holmes has failed to cite to any case or authority

that would tend to indicate that either of these factors has any

direct bearing on whether or not he is a leader or organizer of

the conspiracy to which he plead guilty.

This court has never held that a criminal enterprise

must have a rigid structure or be the only criminal enterprise

its members are a part of before conspiratorial criminal

liability can attach. Cf. United States v. Burgos, 94 F.3d 849,

858 (4th Cir. 1996) (en banc) ("while many conspiracies are

executed with precision, the fact that a conspiracy is

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

less a conspiracy — or any less unlawful"). Thus, it would seem

counterintuitive to allow an organizer of such a conspiracy to

escape liability simply by virtue of the “loose-knit” or

“haphazard” nature of his plans. As stated above, under

§ 3B1.1, the Government need only establish that a defendant

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exercised control over one of his co-conspirators, not that he

exercised rigid or exclusive control over any of them.

Moreover, the selling of drugs on consignment does not

create a wall between a seller and his downstream

co-conspirators in the way that Holmes seems to contend. A

dealer who consigns or “fronts” drugs to a lower-level dealer

with the expectation that the drugs will be sold and he will be

repaid from the proceeds of those retail sales “overstep[s] a

mere seller’s role,” and assumes a control position. See United

States v. Pena, 67 F.3d 153, 156 (8th Cir. 1995); United

States v. Atkinson, 85 F.3d 376, 378 (8th Cir. 1996).

Thus, Holmes cannot hide behind the structure of his

arrangements with his underlings to insulate himself from

leadership liability in this conspiracy. Contrary to what

Holmes argues, the nature of his arrangements only supports the

conclusion that he retained control, not that he relinquished

it. Accordingly, we find that the district court did not

clearly err in giving Holmes a four-level adjustment for his

role in the conspiracy. *

*
Holmes has also argued that the district court erred by
not explicitly considering a lesser enhancement under USSG
§§ 3B1.1(b) or (c); however, Holmes has failed to cite to any
authority to support this argument and we are not aware of any.
Under these circumstances, we think a lesser enhancement under
either subsection (b) or (c) would have been inappropriate.

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II. Obstruction of Justice

Holmes has also challenged the district court’s

two-level enhancement for obstruction of justice under § 3C1.1.

The enhancement was based on the court’s findings that while

Holmes and a co-conspirator, Lynch, were incarcerated at the

same facility, Holmes threatened to expose Lynch as a government

snitch if Lynch testified against him, and that Holmes had

arranged for a $25,000 bounty for Lynch’s murder if Lynch

continued to cooperate with the authorities. Holmes maintains

the court failed to give him adequate notice that it would

consider the enhancement, and that the uncorroborated testimony

of Lynch was an insufficient basis to find that he qualified for

the enhancement. Both arguments lack merit.

Holmes’ arguments concerning the sufficiency of the

evidence are reviewed for clear error. United States v. Hughes,

401 F.3d 540, 560 (4th Cir. 2005). We believe there is ample

evidence in the record to support Holmes’ two-level enhancement

for threatening Lynch.

The main thrust of Holmes’ argument is to contest

Lynch’s credibility and to insist that he not be believed in the

absence of corroborative evidence. However, there is, of

course, no requirement that the Government provide corroboration

for Lynch’s testimony, and this Court will not substitute its

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credibility determinations for that of the district court. Cf.

United States v. Murray, 65 F.3d 1161, 1165 (4th Cir. 1995).

Even without Lynch’s testimony that Holmes put a

$25,000 bounty on his head, Holmes’ own words more than

adequately establish that he threatened Lynch with the intent to

intimidate him or prevent him from testifying. In a letter to

the district court, Holmes admitted calling Lynch a “snitch” and

a “rat,” and threatening to expose Lynch as such in the prison

yard. This alone is an adequate ground to support an

obstruction of justice enhancement. See United States v.

Jackson, 974 F.2d 104, 105-106 (9th Cir. 1992) (disseminating

information that a cooperating witness is a “snitch” and a “rat”

to others can “potentially chill [the witness’] willingness to

testify”); United States v. Hurst, 228 F.3d 751, 761-62 (6th

Cir. 2000) (inciting other inmates to harm cooperating witness

warranted obstruction enhancement). Accordingly, the district

court did not clearly err by finding that Holmes obstructed

justice.

In support of his alternate argument, that the

district court erred by failing to give him reasonable notice

that it would consider imposing an obstruction enhancement,

Holmes cites to Federal Rule of Criminal Procedure 32(h), which

states that:

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Before the court may depart from the applicable
sentencing range on a ground not identified for
departure either in the presentence report or in a
party’s prehearing submission, the court must give the
parties reasonable notice that it is contemplating
such a departure. The notice must specify any ground
on which the court is contemplating a departure.

The Government counters by arguing that Rule 32(h)

applies only to “departures,” and that an adjustment under

§ 3C1.1 is not a “departure,” but instead an inherent part of a

defendant’s guideline sentence, and that no notice was required.

We need not address the Government’s claim at this time, as

Holmes has failed to show a reversible error in any event.

Because Holmes failed to object to the district

court’s allegedly inadequate notice below, this Court must

review for plain error. See United States v. McClung, 483 F.3d

273, 276 (4th Cir. 2007). To establish plain error, Holmes must

show that an error (1) was made, (2) is plain (i.e., clear or

obvious), and (3) affects his substantial rights. United

States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009).

Even if Holmes makes this three-part showing, this Court may

exercise its discretion to correct the error only if it

“seriously affects the fairness, integrity or public reputation

of judicial proceedings.” Id. at 343 (internal quotation marks

omitted).

Even assuming that the district court was required to

provide notice to Holmes and that its notice was inadequate,

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Holmes has still not shown that the court’s alleged failing

affected his substantial rights. Holmes does not substantively

address the fact that his own letter sealed his fate just as

much as the testimony of Lynch did, except to say in completely

conclusory fashion that had he received notice, “it very likely

would have affected the outcome of the sentencing proceeding.”

At no point does Holmes ever explain how receiving notice,

assuming he was entitled to receive it, would have changed the

fact that he admitted to behavior justifying the enhancement.

Therefore, Holmes has failed to carry his burden of establishing

that the district court committed plain error by failing to

notify him that it might enhance his sentence for obstructing

justice.

Accordingly, we affirm the district court’s judgment.

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