United States v. Holmes, 4th Cir. (2010)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 08-4869
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
THESSALONIAS ANRE HOLMES,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(1:07-cr-00317-MBS-1)
Submitted:
May 5, 2010
Decided:
May 28, 2010
Before MOTZ, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John C. Neiman, Jr., BRADLEY ARANT BOULT CUMMINGS LLP,

Birmingham, Alabama, for Appellant.
John David Rowell,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thessalonias
sentence
of
121
A.
Holmes
months,
appeals
imposed
after
his
he
conviction
pled
guilty
and
to
possession with intent to distribute cocaine, in violation of 21

U.S.C. 841(a)(1) (2006).
pursuant
to
questioning
Anders
v.
whether
Appellate counsel has filed a brief

California,
the
United
386
States
U.S.
738
breached
(1967),
its
plea
agreement in failing to move to reduce Holmess sentence under

Rule 35(b) of the Federal Rules of Criminal Procedure or 18
U.S.C. 3553(e) (2006), but concluding there are no meritorious
grounds for appeal.
Holmes filed a pro se supplemental brief,
raising the same issue.

brief.
The Government elected not to file a
We previously placed this case in abeyance pending the
outcome of United States v. Peake, No. 08-5132.

has
now
issued
in
Peake,
this
case
has
As our mandate
been
removed
from
abeyance, and is ripe for review.

When a claim of breach of a plea agreement has been
preserved, we review the district courts factual findings for
clear
error
and
its
application
interpretation de novo.
342 (4th Cir. 2001).
of
principles
of
contract
United States v. Bowe, 257 F.3d 336,
However, because Holmes did not claim in
the district court that the Government had breached the plea
agreement, appellate review in this case is for plain error.
Puckett v. United States, 129 S. Ct. 1423, 1428 (2009).
2
Plea agreements are grounded in contract law, and both

parties should receive the benefit of their bargain.
Bowe, 257
F.3d at 345.
The government breaches the plea agreement when a
promise
made
it
to
induce
the
plea
goes
unfulfilled.
Santobello v. New York, 404 U.S. 257, 262 (1971).
Because of
constitutional and supervisory concerns, the government is held

to
greater
degree
of
responsibility
ambiguities in plea agreements.

F.2d
294,
300-01
(4th
Cir.
for
imprecision
or
United States v. Harvey, 791
1986).
Where
an
agreement
is
ambiguous in its terms, the terms must be construed against the

government.
Id.
at
300,
303.
However,
[w]hile
the
[g]overnment must be held to the promises it made, it will not

be bound to those it did not make.
792
F.2d
461,
464-65
(4th
Cir.
United States v. Fentress,
1986).
After
reviewing
the
record, we find that the Governments failure to move for a

downward departure or reduction in sentence was not in breach of
the plea agreement.
Accordingly, this issue is without merit.
In reviewing the remainder of the record, we note that

Holmess
sentence
appears
procedurally
unreasonable,
as
the
district court failed to provide any explanation for imposing

the sentence it did.
We recently held, in United States v.
Carter, 564 F.3d 325 (4th Cir. 2009), that a district court must
conduct an individualized assessment of the particular facts
of every sentence, on the record, whether the court imposes a
3
sentence above, below, or within the guidelines range.

330.
Here,
the
district
court
summarized
its
Id. at
reasons
for
Holmess sentence as follows:

Mr. Holmes, having calculated and considered the
advisory
sentencing
guidelines
and
having
also
considered the relevant statutory sentencing factors
that are contained in Title 18, United States Code
Section 3553(a), it is the judgment of the court that
the Defendant, Thessalonias Anre Holmes, is hereby
committed to the custody of the Bureau of Prisons to
be imprisoned for a term of 121 months.
The findings of fact of the presentence report are
adopted as the reasons for the sentence and they are
incorporated by reference.
Except for noting that its sentence was based on the
findings of fact in the presentence report, the district court
failed
to
provide
any
reasons
why
guidelines
sentence
was
appropriate for Holmes or why it chose to sentence him at the

low end of the advisory guideline range.
that
the
district
court
failed
to
Therefore, it is clear
provide
an
individualized
assessment as required by Carter.

However, Holmes did not object to the adequacy of the
district courts explanation in the district court.
defendant
does
not
object
to
district
courts
Where a
failure
to
explain an imposed sentence, or otherwise preserve the issue for

review
by
requesting
sentence
shorter
received, our review is for plain error.
than
the
one
he
See United States v.
Lynn, 592 F.3d 572, 578-79 (4th Cir. 2010).
Under plain error
review,
[A]n appellate court may correct an error not brought
to the attention of the trial court if (1) there is an
error (2) that is plain and (3) that affects
substantial rights. If all three of these conditions
are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if
(4)
the
error
seriously
affects
the
fairness,
integrity,
or
public
reputation
of
judicial
proceedings.
United
States
v.
Carr,
303
F.3d
539,
543
(4th
Cir.
2002)
(internal quotation marks, citations, and alterations omitted).

In the sentencing context, an error affects substantial rights
if the defendant can show that the sentence imposed was longer
than
that
States
to
he
Washington,
v.
(internal
which
quotation
would
404
marks
otherwise
F.3d
and
834,
be
849
citation
subject.
(4th
United
Cir.
2005)
omitted).
After
reviewing the proceedings, we conclude any error the district

court
may
have
committed
in
failing
to
adequately
explain
Holmess sentence did not affect Holmess substantial rights,

and is therefore not cognizable on appeal.
We have reviewed the entire record in accordance with
Anders
and
have
not
identified
any
meritorious
issues
for
appeal.
Accordingly, we affirm the judgment of the district
court.
This
writing,
of
court
his
requires
right
to
counsel
petition
United States for further review.

5
the
to
inform
Supreme
Holmes,
Court
of
in
the
If the client requests such
petition be filed, but counsel believes that doing so would be

frivolous,
counsel
representation.
may
move
this
court
to
withdraw
from
Counsels motion must state that a copy of the
motion was served on the client.
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

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

May 28, 2010

Before MOTZ, AGEE, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

John C. Neiman, Jr., BRADLEY ARANT BOULT CUMMINGS LLP,

Unpublished opinions are not binding precedent in this circuit.

possession with intent to distribute cocaine, in violation of 21

Appellate counsel has filed a brief

agreement in failing to move to reduce Holmess sentence under

Holmes filed a pro se supplemental brief,

raising the same issue.

The Government elected not to file a

We previously placed this case in abeyance pending the

outcome of United States v. Peake, No. 08-5132.

abeyance, and is ripe for review.

United States v. Bowe, 257 F.3d 336,

However, because Holmes did not claim in

Plea agreements are grounded in contract law, and both

The government breaches the plea agreement when a

Santobello v. New York, 404 U.S. 257, 262 (1971).

constitutional and supervisory concerns, the government is held

ambiguities in plea agreements.

United States v. Harvey, 791

ambiguous in its terms, the terms must be construed against the

[g]overnment must be held to the promises it made, it will not

United States v. Fentress,

record, we find that the Governments failure to move for a

Accordingly, this issue is without merit.

In reviewing the remainder of the record, we note that

district court failed to provide any explanation for imposing

We recently held, in United States v.

sentence above, below, or within the guidelines range.

Holmess sentence as follows:

appropriate for Holmes or why it chose to sentence him at the

assessment as required by Carter.

explain an imposed sentence, or otherwise preserve the issue for

received, our review is for plain error.

See United States v.

Lynn, 592 F.3d 572, 578-79 (4th Cir. 2010).

Under plain error

(internal quotation marks, citations, and alterations omitted).

reviewing the proceedings, we conclude any error the district

Holmess sentence did not affect Holmess substantial rights,

Accordingly, we affirm the judgment of the district

United States for further review.

If the client requests such

petition be filed, but counsel believes that doing so would be

Counsels motion must state that a copy of the

motion was served on the client.

We dispense with oral argument

because the facts and legal contentions are adequately presented

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