NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0031n.06
Filed: January 9, 2008
No. 05-6584
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF TENNESSEE
VICTOR L. HOLLMAN, )
) OPINION
Defendant-Appellant. )
_______________________________________)
Before: BATCHELDER and MOORE, Circuit Judges; BUNNING,* District Judge.
KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Victor L. Hollman
(“Hollman”) pleaded guilty to one count of conspiracy to commit the offenses of distribution and
possession with intent to distribute five hundred grams or more of a mixture and substance
containing a detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1). The district court
sentenced Hollman to 204 months in prison. On appeal, Hollman argues that his sentence was
procedurally and substantively unreasonable. We disagree, and AFFIRM the sentence pronounced
by the district court.
*
The Honorable David Bunning, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
I. BACKGROUND
A. Factual Background
Hollman and the government agreed on the factual basis for the offense conduct. Between
April 21, 1999 and May 12, 1999, a confidential informant purchased 7.8 grams of cocaine from
Hollman; law enforcement officers recorded the transactions and conducted surveillance of them.
Hollman purchased cocaine from one particular source for approximately three to four months in
1999. Hollman used cocaine daily before his arrest and had been using the drug periodically since
the early 1990s.
The district court ordered a forensic evaluation to determine Hollman’s competency to stand
trial; the report, submitted on June 4, 2004, concluded that Hollman was “malingering” and gave a
provisional diagnosis of “antisocial personality disorder.” Joint Appendix (“J.A.”) at 163 (PSR at
¶66). The report stated: “Mr. Hollman continues to fabricate psychiatric symptoms and display
disruptive behavior. It is likely that if he is convinced of the efficacy in these efforts to obtain the
desired secondary gain, he will persist.” Id. After Hollman was labeled a malingerer, the
government did not ask Hollman to testify against his co-defendants at their trials.
While in custody in Greene County Jail, Hollman, posing as a woman, exchanged notes with
another inmate. During the course of their correspondence, the other inmate wrote a detailed
admission regarding a heinous murder. After Hollman alerted authorities, they discovered that the
inmate’s admission implicated two other individuals who had previously not been charged.
B. Procedural Background
Hollman pleaded guilty to Count Two of the Second Superseding Indictment: conspiracy
to commit the offenses of distribution and possession with intent to distribute five hundred grams
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or more of a mixture and substance containing a detectable amount of cocaine, in violation of 21
U.S.C. § 841(a)(1). Hollman qualified as a career offender, placing him in criminal history category
VI. His final Guidelines range, as calculated in the PSR, was 262 to 327 months. Based on the
substantial assistance he provided to the government regarding the state murder, the government
filed a motion for downward departure under U.S. SENTENCING GUIDELINES MANUAL § 5K1.1. The
government recommended a 200-216-month sentence, whereas Hollman argued for a 132-month
sentence, twelve months less than the leader of the conspiracy received.
The district court granted the government’s downward-departure motion, and chose a three-
level reduction from the Guidelines offense level, resulting in an advisory Guidelines range of 188
to 235 months. The district court sentenced Hollman to 204 months in prison. Judgment was
entered September 27, 2005, and Hollman timely appealed.
II. REASONABLENESS OF THE SENTENCE IMPOSED
BY THE DISTRICT COURT
A. Standard of Review
Under Rita v. United States, 551 U.S. --, 127 S. Ct. 2456 (2007), and Gall v. United States,
552 U.S. –, 128 S. Ct. 586 (2007), we review a district court’s sentencing determination for
reasonableness under a deferential abuse-of-discretion standard. Rita, 127 S. Ct. at 2459; Gall,128
S. Ct. at 591, 597.
B. Reasonableness of the Sentence
Hollman argues that his sentence is procedurally and substantively unreasonable. Hollman
relies upon United States v. Vonner, 452 F.3d 560 (6th Cir. 2006), vacated for rehearing en banc,
Oct. 12, 2006, to argue that the district court did not use language at the sentencing that would allow
a reviewing court to understand whether the district court had considered all of the arguments before
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it and how those arguments affected its determination of Hollman’s sentence. Appellant Br. at 14-
19. Also, Hollman argues that the district court failed to consider several of the § 3553(a) factors
and thus applied a sentence “greater than necessary.” Appellant Br. at 19. Hollman argues that his
history of drug addiction, bipolar disorder, manic depression, difficulty reading, and low level of
education should have been considered by the district court. Appellant Br. at 22-23. Finally,
Hollman argues that the district court should have given him a greater downward departure based
on his substantial assistance to the government. Appellant Br. at 23.
Under Gall, we must ensure that “the district court committed no significant procedural error,
such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines
as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence–including an explanation for
any deviation from the Guidelines range.” Gall, 128 S. Ct. at 597. In addition, after completing this
procedural review, we must ensure that the sentence is substantively reasonable based on “the totality
of the circumstances.” Id.
Based on the record, we hold that the district court imposed a procedurally and substantively
reasonable sentence in this case. Hollman does not argue, nor does the record indicate, that the
district court incorrectly calculated his Guidelines range; also, there is no indication from the record
that the district court treated the Guidelines as mandatory. During a lengthy sentencing hearing, the
district court considered the pertinent § 3553(a) factors before imposing sentence and did not give
unreasonable weight to any particular factor. The district court addressed Hollman’s history and
characteristics and his drug addiction. Although the district court did not mention Hollman’s bipolar
disorder and manic depression specifically during the sentencing, Hollman did not raise these issues
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in his sentencing memorandum or at sentencing; in addition, during the sentencing, the district court
noted the results of the mental evaluation it ordered for Hollman. Also, although the district court
did not address Hollman’s low level of education explicitly during the sentencing, this factor was
not raised by his attorney in the sentencing memorandum or at sentencing. In addition, the district
court explicitly considered, during the sentencing, how much credit should be given to Hollman for
the time that he had already served; the district judge agreed with the government that there would
effectively be no punishment for Hollman’s parole violation (unrelated to the offense at issue at
sentencing) if the judge took into account the thirty-one months Hollman had already served when
calculating the sentence.
Finally, the district court explained in detail how it arrived at the three-level § 5K1.1
departure based on Hollman’s substantial assistance. Hollman argues that because of the nature of
his substantial assistance to the government, the district court should have granted him a ten-level
reduction instead of the three-level reduction that was awarded. However, after evaluating
Hollman’s argument under our authority to review sentences for reasonableness, we cannot say that
the district judge’s three-level departure was unreasonable given the facts of this particular case.
Therefore, under the circumstances of this case, in light of the structure for review set forth in Gall,
we do not find Hollman’s sentence procedurally or substantively unreasonable.
III. CONCLUSION
Because Hollman failed to demonstrate that his sentence was procedurally or substantively
unreasonable, we AFFIRM Hollman’s sentence.
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ALICE M. BATCHELDER, Circuit Judge, concurring. I agree with the lead opinion that
Hollman’s sentence is both procedurally and substantively reasonable, but I write to highlight one
issue. Although the lead opinion does not set forth a standard of review other than abuse of
discretion, I would review for plain error the procedural reasonableness of Hollman’s sentence.
Though the district court provided Hollman with the opportunity to object to any perceived
procedural inadequacy, Hollman failed to do so. See, e.g., United States v. Bailey, 488 F.3d 363,
367-68 (6th Cir. 2007). Moreover, as the lead opinion indicates, Hollman failed to raise arguments
concerning his mental health problems and low level of education either in his sentencing
memorandum or at the sentencing hearing. He should not now be heard to complain about the
district court’s failure to address those arguments. Neither Gall nor Rita undermines our court’s
precedent of applying the plain error standard of review in the circumstances here.
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