US v. Harold Holcombe, No. 09-4819 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4819 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HAROLD B. HOLCOMBE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:09-cr-00081-REP-1) Submitted: March 5, 2010 Decided: April 8, 2010 Before WILKINSON, GREGORY, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Assistant Federal Public Defender, Appellant. Neil H. MacBride, United Chase, Richard D. Cooke, Assistant Richmond, Virginia, for Appellee. Defender, Amy L. Austin, Richmond, Virginia, for States Attorney, Sara E. United States Attorneys, Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Harold B. Holcombe appeals his sentence of twelve months and one day for driving as a habitual offender, third offense, in violation of 18 U.S.C. § 13 (2006), assimilating Va. Code Ann. § 46.2-357(B)(3) (Michie 2005). For the reasons that follow, we affirm. Holcombe, who has been adjudged a habitual offender in Virginia, was driving through the Fredericksburg and Spotsylvania National Military Park when he was spotted by a park ranger and pulled over for not wearing a safety belt. At the time, Holcombe s driver s license was suspended. Holcombe pled guilty to the offense. he requested that he be sentenced to the At sentencing, one-year mandatory minimum term under Virginia law, and that part of his sentence be served mandatory in home minimum confinement. sentence of one Virginia law year a for requires violation a of § 46.2-357(B)(3), all of which must be served in a correctional facility. U.S.C. Holcombe argued that the Assimilated Crimes Act, 18 § 13, affords the district court the discretion to sentence him to a partial term of home confinement in lieu of time in a considered correctional facility. the and question The determined district court fully that lacked that it discretion, that the law required a term of incarceration, and that in any event, the court would not impose home confinement 2 even if it had the discretion to do so. unambiguously announced that it would Because the court not have permitted Holcombe to serve his sentence under home detention even if it had discretion to do so, Holcombe cannot point to any non- of the harmless error. * Holcombe district would be court s further challenges explanation sentenced to a of term its of the adequacy statement imprisonment that Holcombe regardless of whether it could instead have imposed home confinement for some or all of the applicable term. We have reviewed the record and find no error in the district court s explanation. The affirmed. legal before judgment the district court is therefore We dispense with oral argument because the facts and contentions the of court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED * We note that both Holcombe and the Government have requested oral argument to address a district court s authority under the circumstances presented to permit a defendant to serve a sentence under home detention in lieu of confinement in a correctional facility. Because there is no non-harmless error alleged, we deny that request. 3
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