US v. Kelvin Holman, No. 10-4540 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4540 UNITED STATES OF AMERICA, Plaintiff Appellee, v. KELVIN JEROD HOLMAN, a/k/a J-Five, Defendant Appellant. Appeal from the United States District Court for the District of South Carolina, at Orangeburg. Margaret B. Seymour, District Judge. (5:04-cr-00964-MBS-2) Submitted: December 6, 2010 Decided: January 12, 2011 Before MOTZ, KING, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Russell W. Mace, III, THE MACE FIRM, Myrtle Beach, South Carolina, for Appellant. William N. Nettles, United States Attorney, Stacey D. Haynes, Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kelvin Jerod Holman appeals the 360-month sentence imposed after we vacated his original sentence and remanded to the district court with instructions to apply the factors outlined in U.S. Sentencing Guidelines Manual ยง 3B1.1 cmt. n.4 (2007), to determine whether his role in the offense warranted the two-level States v. enhancement Holman, 354 to his F. offense App x 791 level. (4th United Cir. 2009) (unpublished). On appeal, Holman contends that the district court erred plainly by denying him the allocution at the resentencing hearing. opportunity for Finding no reversible error, we affirm. Because Holman did not object to the denial of allocution in the district court, we review for plain error. United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007); see United States v. Olano, 507 U.S. 725, 732 (1993) (detailing plain error standard). Before imposing sentence, the [district] court must . . . address the defendant personally in order to permit information to the mitigate 32(i)(4)(A)(ii). Even defendant the when to speak sentence. the or defendant Fed. is present R. any Crim. P. permitted to allocute at his original sentencing hearing, he ha[s] a renewed right to allocute at resentencing. Here, while both counsel had Muhammad, 478 F.3d at 250. ample 2 opportunity to present argument, the district court did not give Holman the opportunity to allocute during the resentencing hearing; thus, the court committed plain error. See id. at 249-50. Our finding of plain error does not, however, end the inquiry; we must next assess whether the error affected Holman s substantial rights. Olano, 507 U.S. at 732. [A] defendant [is] not prejudiced by the denial of allocution when there was no possibility that he could have received a shorter sentence. Muhammad, 478 F.3d at 249. If, however, we can identify a ground on which a lower sentence might have been based, we may notice the error. See United States v. Cole, 27 F.3d 996, 999 (4th Cir. 1994) ( When . . . the possibility remains that an exercise of the right of allocution could have led to a sentence less than that received, . . . fairness and integrity of the court proceedings would be brought into serious disrepute were we to allow the sentence to stand. ). Upon review, we conclude that Holman has failed to demonstrate failure that to resentencing. * he was permit him prejudiced the Accordingly, by the opportunity we * affirm the district to court s allocute district at court s To the extent Holman asserts that he should have been allowed to present to the district court evidence of mitigation unrelated to the role enhancement, the mandate rule precluded the district court from considering such evidence. See United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993). 3 judgment. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 4
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