The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13854 ELEVENTH CIRCUIT
JANUARY 25, 2010
Non-Argument Calendar
JOHN LEY
________________________
ACTING CLERK
D. C. Docket No. 06-00026-CR-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HOMER HOLLOWAY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(January 25, 2010)
Before DUBINA, Chief Judge, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Homer Holloway challenges his 156-month sentence for
conspiracy to distribute, and to possess with intent to distribute, a quantity of
crack and cocaine, in violation of 21 U.S.C. § 846. Holloway raises three
arguments on appeal: (1) the district court erred in calculating his criminal history
category, (2) the district court erred by failing to grant Holloway a downward
adjustment based on his minor role in the offense, and (3) the district court
violated the plea agreement and his Sixth Amendment rights by accepting the
probation officer’s calculation of his base offense level based on a quantity of 15
to 50 kilograms of cocaine.
I.
Holloway argues that the district court erred in ruling that his prior burglary
offenses are not “related offenses” under U.S.S.G. § 4A1.2(a)(2) for purposes of
calculating his criminal history. Holloway contends that his prior concurrent
sentences for burglary convictions in separate counties were part of a “single
common scheme or plan” because they occurred within a short span of weeks in a
small geographic area and involved the same core group of accomplices and the
same type of victim, thus satisfying some of the factors identified in U.S.S.G. §
1B1.3 cmt. n.9(a). Holloway notes that the only reason the two sets of crimes
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were not formally consolidated for trial or sentencing was due to Georgia’s
jurisdictional laws.
We review a district court’s determination of whether prior convictions are
related for purposes of U.S.S.G. § 4A1.2 for clear error. United States v.
Hernandez-Martinez, 382 F.3d 1304, 1306 (11th Cir. 2004). “[W]e will not find
clear error unless our review of the record leaves us with the definite and firm
conviction that a mistake has been committed.” United States v. White, 335 F.3d
1314, 1319 (11th Cir. 2003) (internal quotation marks omitted).
In calculating a defendant’s criminal history score, prior sentences imposed
in unrelated cases are counted separately, while prior sentences imposed in related
cases are treated as one sentence. U.S.S.G. § 4A1.2(a)(2). Pursuant to the
November 1, 2005 edition of the United States Sentencing Guidelines Manual,
which was in effect at the time of Holloway’s offense, if the prior sentences are
not separated by an intervening arrest, they are considered related if they resulted
from offenses that (A) occurred on the same occasion, (B) were part of a single
common scheme or plan, or (C) were consolidated for trial or sentencing.1
U.S.S.G. § 4A1.2 cmt. n.3 (2005).
1
The Sentencing Commission abandoned the three-factor relatedness test in the
November 1, 2007 edition of the Guidelines Manual, but the parties have all agreed that the 2005
edition should apply due to ex post facto concerns. See U.S.S.G. § 4A1.2(a)(2) (2007).
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We conclude that the district court did not clearly err in determining that the
offenses are unrelated. The evidence supports the district court’s conclusion that
the two sets of offenses were not committed on the same occasion and were not
part of the same common scheme or plan as they were committed in different
counties and involved different victims and different accomplices.
II.
Holloway argues that the district court erred in failing to consider him a
“minor participant,” thereby denying a downward adjustment based on his minor
role in the offense. Holloway argues that the presentence investigation report
(PSI) clearly showed that his role in the drug distribution organization was
significantly less than the role of codefendant Stephanie Collins, and he was
therefore entitled to a minor role reduction.
A district court’s determination of whether a defendant qualifies for a minor
role adjustment under the guidelines is a finding of fact that we review only for
clear error. United States v. Rodriguez De Varon, 175 F.3d 930, 934 (11th Cir.
1999) (en banc). The proponent of the downward adjustment bears the burden of
establishing his minor role in the offense by a preponderance of the evidence. Id.
at 939. Pursuant to U.S.S.G. § 3B1.2, a defendant may receive an adjustment for
his mitigating role in the offense if he “plays a part in committing the offense that
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makes him substantially less culpable than the average participant.” U.S.S.G. §
3B1.2 cmt. n.3(A). A two-level, minor role reduction under § 3B1.2(b) applies to
a defendant “who is less culpable than most other participants, but whose role
could not be described as minimal.” U.S.S.G. § 3B1.2, comment. (n.5).
Under De Varon, the district court conducts a two-part analysis of a
defendant’s conduct to determine whether the defendant is entitled to a minor role
reduction. 175 F.3d at 940-45. First, the court must measure the defendant’s role
against the relevant conduct for which he was held accountable at sentencing. Id.
at 945. Second, the district court may compare “the defendant’s role against the
other participants, to the extent that they are discernable, in that relevant conduct.”
Id. “[A] defendant is not automatically entitled to a minor role adjustment merely
because [he] was somewhat less culpable than the other discernable participants.”
Id. at 944. To apply the adjustment under this prong, the district court must find
that “the defendant was less culpable than most other participants in [his] relevant
conduct.” Id. (emphasis in original).
The district court did not clearly err in determining that Holloway was an
average participant and, therefore, is not entitled to a minor role reduction. The
fact that Holloway believes he is less culpable than one co-conspirator, Collins, is
not persuasive on this point as the conspiracy included more than thirty people.
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As a whole the evidence supports the district court’s conclusion that Holloway
was not entitled to a minor role adjustment.
III.
Holloway argues for the first time on appeal that (1) the district court
violated his Sixth Amendment jury trial rights by accepting the PSI’s calculation
of his base offense level based on a quantity of 15 to 50 kilograms of cocaine, and
(2) the district court’s reliance on the PSI’s calculation of the amount of cocaine
he was responsible for violated the provision of his plea agreement stating that no
information provided by Holloway would be used against him.
“We review sentencing arguments raised for the first time on appeal for
plain error.” United States v. Bonilla, 579 F.3d 1233, 1238 (11th Cir. 2009). To
establish plain error, an appellant must show there is (1) error, (2) that is plain, and
(3) that prejudicially affected his substantial rights. Id. If the appellant shows that
all three conditions are met, “we may exercise our discretion to recognize a
forfeited error, but only if the error seriously affects the fairness, integrity or
public reputation of judicial proceedings.” United States v. Moriarty, 429 F.3d
1012, 1019 (11th Cir. 2005) (internal quotation marks and alteration omitted).
In Apprendi, the Supreme Court held that, except for the fact of prior
convictions, the government must prove to a jury beyond a reasonable doubt any
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fact that increases the statutory maximum sentence. Apprendi v. New Jersey, 530
U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435 (2000). “The
‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury verdict or admitted by
the defendant.” Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537,
159 L. Ed. 2d 403 (2004) (emphasis in original). In United States v. Smith, we
held that when a sentencing court understood that “it was operating under an
advisory scheme, its fact-finding did not implicate the Sixth Amendment.” 480
F.3d 1277, 1281 (11th Cir. 2007). “In cases where a defendant’s actual sentence
falls within the range prescribed by the statute for the crime of conviction[,] there
is no Apprendi constitutional error.” United States v. Underwood, 446 F.3d 1340,
1344 (11th Cir. 2006) (internal quotation marks omitted).
The district court did not violate Holloway’s plea agreement or his Sixth
Amendment rights under Apprendi, and Holloway has failed to show that the
district court committed plain error in sentencing him. Holloway’s sentence of
156 months’ imprisonment falls within the imprisonment range prescribed by the
statute. See 21 U.S.C. § 841(b)(1)(C). The probation officer and the district court
based its calculation of the amount of cocaine attributable to Holloway on proffer
statements and testimony of several of Holloway’s co-conspirators, not on
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information provided by Holloway as part of his plea agreement. Therefore, the
district court did not commit plain error in considering such evidence.
AFFIRMED.
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