United States v. Holmes

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4531

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

GARY DELINO HOLMES,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:06-cr-01319-RBH-1)

Submitted: November 30, 2010 Decided: January 6, 2011

Before NIEMEYER, MOTZ, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Wallace H. Jordan, Jr., Florence, South Carolina, for Appellant.
Alfred William Walker Bethea, Jr., Assistant United States
Attorney, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Gary Delino Holmes appeals from his conviction and

292-month sentence following his guilty plea to one count of

conspiracy to possess with intent to distribute and to

distribute 5 grams or more of cocaine base, 500 grams or more of

cocaine, and 100 grams or more of heroin, in violation of 21

U.S.C. § 846 (2006) (“Count One”); and one count of using,

carrying and possessing a firearm during and in relation to and

in furtherance of a drug trafficking crime, in violation of 18

U.S.C. § 924(c)(1) (2006) (“Count Five”). Holmes’s counsel

filed a brief pursuant to Anders v. California, 386 U.S. 738,

744 (1967), stating that there are no meritorious issues for

appeal, but questioning whether a sufficient factual basis

exists to support Holmes’s guilty plea to Count Five; and

whether Holmes should have been subjected to the five-year

mandatory minimum sentence on Count Five. Holmes filed a pro se

supplemental brief challenging his sentence. We affirm.

Holmes first argues that the district court erred in

accepting his guilty plea to Count Five because it was not

supported by a factual basis. Federal Rule of Criminal

Procedure 11(b)(3) provides that “[b]efore entering judgment on

a guilty plea, the court must determine that there is a factual

basis for the plea.” This rule is “intended to ensure that the

court make clear exactly what a defendant admits to, and whether

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those admissions are factually sufficient to constitute the

alleged crime,” and it “is designed to protect a defendant who

is in the position of pleading voluntarily with an understanding

of the nature of the charge but without realizing that his

conduct does not actually fall within the charge.” United

States v. Mastrapa, 509 F.3d 652, 659-60 (4th Cir. 2007).

“[A] defendant may raise on direct appeal the failure

of a district court to develop on the record a factual basis for

a plea.” United States v. Ketchum, 550 F.3d 363, 366 (4th Cir.

2008) (internal quotation marks omitted). In assessing the

factual basis, the district court has wide discretion and need

not “replicate the trial that the parties sought to avoid” or

“rely only on the Rule 11 plea colloquy,” but “may conclude that

a factual basis exists from anything that appears on the

record.” Ketchum, 550 F.3d at 366-67 (internal quotation marks

omitted). This court reviews a district court’s finding of a

factual basis for abuse of discretion, and the court “will not

find an abuse of discretion so long as the district court could

reasonably have determined that there was a sufficient factual

basis based on the record before it.” Mastrapa, 509 F.3d at

660.

A violation of § 924(c)(1) requires proof that the

defendant used or carried a firearm during and in relation to a

drug trafficking crime or possessed a firearm in furtherance of

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a drug trafficking crime. United States v. Nelson, 484 F.3d

257, 260 (4th Cir. 2007) (noting elements under § 924(c) statute

for use or carry); United States v. Lomax, 293 F.3d 701, 705

(4th Cir. 2002) (same, for possession in furtherance). A

firearm can further or advance drug trafficking by “provid[ing]

a defense against someone trying to steal drugs or drug profits,

or . . . lessen[ing] the chance that a robbery would even be

attempted.” Lomax, 293 F.3d at 705 (internal quotation marks

omitted). Factors that indicate a connection between the

possession of a firearm and drug trafficking activity include

the accessibility of the firearm and the gun’s proximity to

drugs. Id.

Here, both the presentence report and the factual

basis provided by the Government establish that Holmes carried

the firearm and the narcotics on his person. Accordingly, we

find that there was no Rule 11 error when the court found a

factual basis for Holmes’s plea.

Holmes also argues that he should not have been

subjected to the five-year mandatory minimum sentence on Count

Five because he was subject to a mandatory minimum sentence on

Count One. The Supreme Court has recently rejected the

interpretation of § 924(c)(1) advanced by Holmes. Abbott v.

United States, __ S. Ct. __, 2010 WL 4569898 (U.S. Nov. 15,

2010) (Nos. 09-479, 09-7073). Therefore, his sentence is not

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subject to attack on this ground. We have also considered

Holmes’s pro se arguments, and find they entitle him to no

relief.

In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. We therefore affirm Holmes’s convictions and sentence.

This court requires that counsel inform Holmes, in writing, of

the right to petition the Supreme Court of the United States for

further review. If Holmes requests that a petition be filed,

but counsel believes that such a petition would be frivolous,

then counsel may move in this court for leave to withdraw from

representation. Counsel’s motion must state that a copy thereof

was served on Holmes. 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