Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
11-1-2007
USA v. Holmes
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3918
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"USA v. Holmes" (2007). 2007 Decisions. Paper 278.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 05-3918
____________
UNITED STATES OF AMERICA
v.
ROBERT HOLMES,
Appellant.
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 02-cr-00172-31)
District Judge: Stewart Dalzell
Submitted Under Third Circuit LAR 34.1(a)
October 23, 2007
Before: SLOVITER, CHAGARES, and HARDIMAN, Circuit Judges.
____________
(Filed: November 1, 2007)
OPINION OF THE COURT
CHAGARES, Circuit Judge.
Counsel for Robert Holmes petitions this Court for permission to withdraw from
representation of Holmes pursuant to Anders v. California, 386 U.S. 738 (1967). For the
reasons that follow, we will grant the motion and affirm Holmes’ sentence.
As we write only for the parties, we do not set out the facts in great detail. On
October 24, 2002, a grand jury returned a 135-count third superseding indictment
charging Holmes and 36 co-defendants with a range of drug trafficking and firearms
offenses. Holmes was charged with conspiracy to distribute cocaine and cocaine base, in
violation of 21 U.S.C. § 846, and conspiracy to possess a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(o). He was tried and on May 28, 2004,
convicted of both counts.
The probation department in its Presentence Investigation Report determined that
the applicable sentencing range was life imprisonment under the murder guidelines.
Holmes objected on the ground that the jury had failed to convict him of a murder
offense. At Holmes’ first sentencing hearing on August 31, 2004, the District Court
upheld the objection under Blakely v. Washington, 542 U.S. 296 (2004). The District
Court instead applied the career offender guideline based on Holmes’ prior convictions
and found the applicable range to be 360 months to life imprisonment. The District Court
sentenced Holmes to 400 months incarceration. Holmes appealed. This Court remanded
for sentencing under United States v. Booker, 543 U.S. 220, 261 (2005).
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Following remand, the District Court found that the murder guidelines applied and
the appropriate sentencing range was, therefore, life imprisonment. In light of the factors
set forth in 18 U.S.C. § 3553(a), however, the District Court decided not to impose a life
sentence and instead, again imposed a sentence of 400 months. Holmes filed a timely
notice of appeal. Holmes’ counsel petitions the Court to withdraw as attorney of record
on the ground that the appeal is frivolous. Holmes has filed a pro se brief.
The Anders brief submitted to this Court demonstrates that Holmes’ attorney has
“thoroughly examined the record in search of appealable issues” and has explained why
any issues arguably supporting the appeal are frivolous. United States v. Youla, 241 F.3d
296, 300 (3d Cir. 2001). Counsel reviewed whether the District Court understood that,
post-Booker, the guidelines were no longer mandatory and whether Holmes’ sentence
was reasonable. Counsel concluded that in choosing “a lesser term to avoid unwanted
sentencing disparities,” the District Court “complied with its obligations under Booker
and the term of imprisonment imposed was within the statutory maximum period
permitted for one of the offenses of conviction. Under these circumstances, there is no
non-frivolous attack which could be launched against the district court’s actions at the
resentencing hearing.” Appellant Br. at 10.
Moreover, an independent review of “those portions of the record identified by . . .
[the] Anders brief” reveals no non-frivolous issues Holmes might profitably raise on
appeal. 241 F.3d at 301. In his pro se brief, Holmes contends that the District Court
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improperly applied the murder guidelines and thereby enhanced his guideline range by
facts not proven beyond a reasonable doubt. Pro Se Appellant Br. at 2-3. In addition,
Holmes asserts that the District Court should not have applied the career offender
guidelines because his prior conviction was a non-qualifying misdemeanor. Holmes
concludes that the District Court should have sentenced him to either 240 or 360 months
incarceration. Id. at 3-4.
Holmes’ arguments are without merit. Holmes improperly relies on the dissent in
United States v. Grier, 449 F.3d 558 (3d Cir. 2006) for the proposition that a sentencing
enhancement based on an uncharged crime (in this case, murder) must be established by
proof beyond a reasonable doubt. Contrary to Holmes’ contention, this Court has
established that the preponderance of the evidence standard applies to such
enhancements. See United States v. Grier, 475 F.3d 556 (3d Cir. 2007) (en banc).
Furthermore, as the government correctly notes, Holmes’ arguments regarding the alleged
misapplication of the career offender guidelines are “irrelevant to Holmes’ sentence,”
given that the District Court actually applied the murder guidelines at resentencing.
Appellee Br. at 28. Therefore, any claim based on the unreasonableness of the sentence
would be frivolous.
Where we conclude, as we do here, that the appeal is without merit, our local rules
require that we grant counsel’s Anders motion and dispose of the appeal without
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appointing new counsel. Accordingly, counsel’s motion will be granted and Holmes’
sentence will be affirmed. See 3d Cir. L.A.R. 109.2.
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