US v. Rahsean Holmes, No. 08-4946 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4946 UNITED STATES OF AMERICA, Plaintiff Appellee, v. RAHSEAN HOLMES, a/k/a Ox, Defendant Appellant. No. 09-4313 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ANTIONE BOYCE, a/k/a Dallas, Defendant Appellant. Appeals from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (1:07-cr-00383-CCB-1; 1:07-cr-00383-CCB-3) Submitted: March 4, 2010 Decided: Before NIEMEYER, KING, and SHEDD, Circuit Judges. April 30, 2010 Affirmed by unpublished per curiam opinion. Thomas J. Saunders, LAW OFFICE OF THOMAS J. SAUNDERS, Baltimore, Maryland; Michael Lawlor, LAWLOR & ENGLERT, LLC, Greenbelt, Maryland, for Appellants. Rod J. Rosenstein, United States Attorney, Michael C. Hanlon, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Rahsean Holmes was convicted after a jury trial of two counts of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. §§ 2, 1951(a) (2006), one count of possession of firearms by a convicted felon, in violation of 18 U.S.C. §§ 2, 922(g)(1) (2006), one count of conspiracy to distribute and possess with the intent to distribute cocaine, in violation of 21 U.S.C. § 846 (2006), and one count of possession of firearms in furtherance of a crime of violence and a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (2006). The district court sentenced Holmes to 420 months imprisonment. Boyce was conspiracy convicted to after commit a Hobbs jury Act trial of robbery, one in Antione count of violation of 18 U.S.C. § 1951(a), one count of possession of firearms by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), one count of possession of firearms in furtherance of a crime of violence and a drug trafficking crime, in violation of 18 U.S.C. § 924(c), and one count of conspiracy to distribute and possess with the intent to distribute cocaine, in violation of 21 U.S.C. § 846. The district court sentenced Boyce to 210 months imprisonment, a prison term that includes a 60-month consecutive sentence on the § 924(c) count. convictions and sentences. Holmes and Boyce appeal their We affirm. 3 Holmes and Boyce first contend that the § 1951(a) counts were constructively amended by the district court s jury instructions, Fifth rendering Amendment. those convictions Additionally, because invalid the under district the court instructed the jury that it could convict on the § 924(c) counts if it found that Holmes and Boyce possessed firearms to further their § 1951(a) violations, they contend that the district court s Fifth Amendment error warrants reversal of the § 924(c) counts as well. A These claims are without merit. criminal defendant may only be tried on charges alleged in an indictment, and only the grand jury may broaden or alter the charges in the indictment. United Randall, 171 F.3d 195, 203 (4th Cir. 1999). States v. A constructive amendment to an indictment occurs when . . . the court (usually through its instructions possible bases for to the conviction jury) . . . broadens beyond those presented the by the grand jury, which results in a fatal variance[] because the indictment charged, crime is such other altered that than the to that change the elements of defendant is actually convicted charged in the the indictment. offense of a United States v. Foster, 507 F.3d 233, 242 (4th Cir. 2007) (quoting Randall, 171 F.3d at 203 (internal quotation marks omitted)). Constructive amendments are error per se and, given the Fifth Amendment right to be indicted 4 by a grand jury, must be corrected on appeal even when not preserved by objection. Id. (quoting United States v. Floresca, 38 F.3d 706, 714 (4th Cir. 1994) (en banc)). However, not every variance and instructions rises to indictment constructive when the jury amendment. Government Indeed, charges it in is the the between level of well-established conjunctive, an a that [but] the statute [at issue] is worded in the disjunctive, the district court can instruct the jury in the constructively amending the indictment. 560 F.3d (2009). 246, 256 (4th Cir.), cert. disjunctive without United States v. Perry, denied, 130 S. Ct. 177 Instructing otherwise would improperly add elements to the crime that are not contained in the statute itself. United States v. Montgomery, 262 F.3d 233, 242 (4th Cir. 2001). Here, although the indictment charged Holmes and Boyce with conspiring to obstruct, delay, and affect commerce by robbery, the pertinent statute, 18 U.S.C. § 1951(a), is phrased disjunctively, those counts because the indictment and the tracked district as to the district the court court s statutory did § 1951(a) not jury instructions language. Accordingly, constructively counts, Holmes on amend and the Boyce s claims of Fifth Amendment error fail. Next, Holmes contends that the district court erred in denying his pre-trial request to represent himself. Although a criminal defendant has the right to represent himself at trial, 5 Faretta v. California, 422 U.S. 806, 819-20 & n.15 (1975), his assertion of that right must be (1) clear and unequivocal; (2) knowing, States intelligent v. Bush, and 404 voluntary; F.3d 263, and 271 (3) (4th timely, Cir. United 2005). A deprivation of the right to self-representation is a structural error that requires automatic reversal because the impact of its denial is not amenable to harmless error analysis. McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984). After review of the record, we conclude that Holmes did not clearly representation. and unequivocally invoke his right to self- A little over two weeks prior to the start of trial, Holmes mother filed a motion on his behalf, requesting the dismissal of Holmes court-appointed counsel, the appointment of new counsel for Holmes, and a delay in the trial start date. complaints At a concerning hearing on counsel s the motion, performance, Holmes but voiced when asked directly by the district court whether he wanted to represent himself, Holmes only reiterated his request for new counsel. Holmes also concurred with the district court that self- representation would be foolish and conceded that he was not equipped to represent himself. willingness to represent Although Holmes did voice some himself, unequivocally requested to do so. 6 he never explicitly and Holmes also claims that the district court erred in denying his motion to suppress evidence seized during a vehicle search and (2006). in in enhancing his sentence under 21 U.S.C. § 851 However, because Holmes fails to support these claims accordance with Fed. R. App. [appellant s] argument . . . must contentions and the authorities and parts relies. ), we deem reasons of them for the P. 28(a)(9)(A) ( [T]he contain . . . appellant s them, record with citations which See abandoned. on the Edwards v. to the appellant City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999) ( Failure to comply with 28(a)(9)(A)] the specific with respect dictates to a of [Fed. particular R. claim App. P. triggers abandonment of that claim on appeal. ); 11126 Baltimore Blvd., Inc. v. Prince George s County, 58 F.3d 988, 993 n.7 (4th Cir. 1995) (en banc) (involving the predecessor to Fed. R. App. P. 28(a)(9)(A)), abrogated on other grounds by, City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004); see also Rosenberger v. Rector & Visitors of Univ. of Va., 18 F.3d 269, 276 (4th Cir. 1994) (concluding that where the parties fail to support their claims with contentions and citations to the record, such failure precludes this court from considering those claims), rev d on other grounds, 515 U.S. 819 (1995). Boyce also challenges the district court s enhancement under 21 U.S.C. § 851 of his sentence on the § 846 conspiracy 7 count. He argues first that the enhancement violates the Fifth Amendment enhance because his the sentence indictment. predicate under § 851 felony were convictions not used to in the referenced However, this claim fails under controlling circuit precedent, see United States v. Thompson, 421 F.3d 278, 284 n.4 (4th Cir. 2005) (holding that an indictment need not reference or list the prior convictions used to enhance a sentence); United States v. Cheek, 415 F.3d 349, 352-54 (4th Cir. 2005) (holding that prior convictions used as the basis for an armed career criminal sentence need not be charged in indictment or proven beyond a reasonable doubt). Boyce also argues that the § 851 enhancement violates the Sixth Amendment. Court has held that Although Boyce recognizes that the Supreme the Government need not plead a prior conviction in an indictment or present such evidence to a jury in order to rely on it to enhance a sentence, see Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 247 (1998), he asserts that the precedential value of AlmendarezTorres is open to question, relying on Apprendi v. New Jersey, 530 U.S. 466, 489 (2000) ( [I]t is arguable that AlmendarezTorres was incorrectly decided. ), Shepard v. United States, 544 U.S. 13, 27 (2005) (Thomas, J., concurring) (stating that a majority of the [Supreme] Court now recognizes that AlmendarezTorres was wrongly decided ), and Blakely v. Washington, 542 8 U.S. 296, 304 (2004) ( When a judge inflicts punishment that the jury s verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment, and the judge exceeds his proper marks and citation omitted)). Almendarez-Torres may no authority. (internal quotation Though many defendants argue that longer be good law, Booker clearly maintained the prior conviction exception, see United States v. Booker, 543 U.S. 220, 244 (2005) ( Any fact (other than a prior conviction) [that] is necessary to support a sentence . . . must be admitted by the defendant or proved to a jury. ), and this court has confirmed that Almendarez-Torres was not overruled by either Apprendi or Booker and remains the law. Cheek, 415 F.3d at 353; United States v. Sterling, 283 F.3d 216, 220 (4th Cir. 2002). Finally, Boyce argues that the district court erred in imposing a consecutive, 60-month mandatory minimum prison term on his § 924(c) conviction. Section 924(c)(1)(A) of Title 18 provides, in relevant part, for a mandatory minimum sentencing schedule, sentence [e]xcept is to otherwise the extent provided by other provision of law. that this a greater subsection or minimum by any In light of this clause, Boyce argues that the district court erred in imposing the 60-month sentence because he was already subject to a ten-year mandatory minimum sentence due to his conviction on the § 846 count and his prior 9 drug convictions. Boyce correctly concedes, however, that the argument he advances is foreclosed by United States v. Studifin, 240 F.3d 415 (4th Cir. 2001). Although Boyce suggests that Studifin should be re-examined, a panel of this court cannot overrule, explicitly or implicitly, the precedent set by a prior panel of this court. Only the Supreme Court or this court sitting en banc can do that. Scotts Co. v. United Indus. Corp., 315 F.3d 264, 271 n.2 (4th Cir. 2002) (internal quotation marks omitted). Accordingly, we affirm the district court s judgments and deny Boyce s motion for abeyance. 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 10

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