United States v. Kevon Keith Holmes

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 27, 2021
• Docket: 20-13718
• Status: Unpublished

Opinion

USCA11 Case: 20-13718 Date Filed: 05/27/2021 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-13718 Non-Argument Calendar ________________________

D.C. Docket No. 6:19-cr-00258-WWB-DCI-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KEVON KEITH HOLMES, Defendant-Appellant. ________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(May 27, 2021)

Before MARTIN, BRANCH, and GRANT, Circuit Judges.

PER CURIAM:

Kevon Holmes appeals his 103-month sentence for conspiring to distribute

fentanyl, distributing fentanyl, and possessing a firearm as a felon. He argues that

the district court erred in applying a two-level enhancement to his sentence under USCA11 Case: 20-13718 Date Filed: 05/27/2021 Page: 2 of 9

United States Sentencing Guidelines Manual § 2D1.1(b)(1) for possessing a

firearm during his drug offenses. He also argues that his sentence is substantively

unreasonable. We affirm.

I.

A confidential source told the Palm Bay Police Department that Kevon

Holmes sold heroin; based on this intelligence, law enforcement set up controlled

“buys” from Holmes. At the direction of law enforcement, the confidential source

“bought” drugs from Holmes seven different times from March 2019 to May 2019.

The confidential source would arrange to purchase heroin; Holmes would then

deliver a bag containing a substance that law enforcement believed was heroin.

Field tests that were conducted after each buy showed that the substance contained

a mixture of heroin and fentanyl; DEA lab reports, though, reflected that the

substance contained only fentanyl. All seven controlled buys took place at a gas

station in Palm Bay. Holmes was in a different car for each sale.

On June 27, 2019, the Brevard County Sheriff’s Office arrested Holmes for

an unrelated arrest warrant for failure to appear in state court. After authorities

apprehended him, they searched the vehicle that they had seen him driving earlier

that day. Inside, they found a stolen pistol loaded with one round in the chamber.

They also found what they suspected to be heroin, though they never tested the

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substance. Law enforcement later learned that the car was registered to Holmes’s

aunt; he had not driven it to any of the seven controlled buys.

A grand jury returned a nine-count indictment, charging Holmes with one

count of conspiracy to distribute and possess with intent to distribute fentanyl, in

violation of 21 U.S.C. § 846, seven counts of distributing and possessing with

intent to distribute fentanyl, in violation of 21 U.S.C. § 841(a)(1), and one count of

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

Holmes pleaded guilty to each of the offenses.

The United States Probation Office then prepared a presentence

investigation report. The probation officer applied a two-level enhancement to

Holmes’s Guidelines sentence under U.S.S.G. § 2D1.1(b)(1); that guideline

provides for an enhancement where a “dangerous weapon (including a firearm)

was possessed.” After applying the enhancement, the probation officer concluded

that Holmes’s advisory guideline range was 92 to 115 months’ imprisonment.

Holmes objected to the two-level firearms enhancement. He argued that the

gun was not connected to his drug-related conduct; according to him, there was no

“nexus” between the gun and his earlier drug-related crimes. The district court

overruled his objection, stating that the proximity between the gun and the

suspected drugs was enough to warrant applying the enhancement. After hearing

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arguments from both sides as to the most appropriate sentence, the court sentenced

Holmes to 103 months’ imprisonment.

This appeal followed.

II.

We review for clear error the district court’s finding that § 2D1.1(b)(1)

applies. United States v. George, 872 F.3d 1197, 1204 (11th Cir. 2017). We

review the substantive reasonableness of a sentence for abuse of discretion. United

States v. Irey, 612 F.3d 1160, 1188 (11th Cir. 2010) (en banc).

III.

The Sentencing Guidelines provide for a two-level enhancement when a

defendant possesses a dangerous weapon, including a firearm. U.S.S.G.

§ 2D1.1(b)(1). For the enhancement to apply, the government must show by a

preponderance of the evidence that a weapon was present during the offense of

conviction or during related relevant conduct. United States v. Smith, 127 F.3d

1388, 1390 (11th Cir. 1997). Relevant conduct includes acts that were part of the

“same course of conduct or common scheme or plan as the offense of conviction.”

United States v. Stallings, 463 F.3d 1218, 1220 (11th Cir. 2006) (quotation

omitted). Evidence of “proximity between guns and drugs, without more, is

sufficient to meet the government’s burden.” United States v. Carillo-Ayala, 713

F.3d 82, 91–92 (11th Cir. 2013). If the government meets this initial burden, then

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the burden shifts to the defendant to make a difficult showing that the connection

between the firearm and the charged offense was “clearly improbable.” George,

872 F.3d at 1204.

In United States v. Stallings, we held that a district court clearly errs in

applying the firearms enhancement when the government does not produce any

evidence that the defendant possessed the firearm in question during conduct

associated with the drug-trafficking crimes. 463 F.3d at 1221. There, the police

arrested the defendant in his home for his role in a narcotics conspiracy and found

three handguns. Id. at 1220. But the government never proved that any activities

related to the drug conspiracy took place at the defendant’s home. Id. at 1220–21.

In fact, the government never addressed the possibility that the firearms might

belong to someone else in the residence. Id. In holding that the court clearly erred

in applying the enhancement, we explained that the mere fact that a drug offender

possesses a firearm is not enough to warrant its application; instead, there must be

a nexus between the firearms and the drug crimes. Id. at 1221.

Here, unlike in Stallings, the district court did not clearly err in concluding

that the firearm was present during conduct related to the drug offenses. To start,

Holmes pleaded guilty to possessing a gun and to participating in a fentanyl-

distribution conspiracy. There is no question that he possessed the gun. And there

is also no question that the drug-related conspiracy continued through June 27,

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2019—the day that he was arrested and found with the gun. So the undisputed

facts establish that Holmes possessed the firearm while the fentanyl-distribution

conspiracy was still ongoing. See George, 872 F.3d at 1204.

Moreover, Holmes does not dispute that the officers found suspected drugs

next to the gun—and evidence that Holmes could have used the firearm to protect

criminal activity is sufficient to show a connection between the firearm and the

drug-related offenses.1 See Carillo-Ayala, 713 F.3d at 91–92. To be sure, the

officers suspected that the substance they found next to the gun was heroin, not

fentanyl. But the officers made that same (incorrect) assumption during each of

the seven controlled buys. After each sale, the officers suspected that Holmes had

sold the confidential source a substance containing heroin, though Holmes was

ultimately charged with distributing fentanyl. Field tests even reflected that the

substance contained heroin, and Holmes’s presentence investigation report states

that the “illegal drugs involved” were both heroin and fentanyl. With that in mind,

it was reasonable for the court to conclude that this suspected heroin was relevant

to Holmes’s drug-conspiracy charge which, again, extended to the date of his

arrest. And we have affirmed the application of the § 2D1.1(b)(1) enhancement

1 Holmes did not object to the presentence investigation report’s factual finding that the officers found suspected heroin next to the gun. Where the parties do not dispute the factual allegations in the presentence investigation report, we review the court’s decision to enhance a sentence based on those undisputed facts. See United States v. Martikainen, 640 F.3d 1191, 1193 (11th Cir. 2011). 6 USCA11 Case: 20-13718 Date Filed: 05/27/2021 Page: 7 of 9

before simply based on the proximity of a firearm to drugs. See, e.g., United States

v. Hunter, 172 F.3d 1307, 1309 (11th Cir. 1999).

So because Holmes possessed the firearm during the time period of the

conspiracy and because suspected drugs were found next to the gun, we cannot say

that the court clearly erred in determining that the firearm was possessed “during

conduct associated with the offense of conviction.” Stallings, 463 F.3d at 1220.

Moreover, Holmes did not meet his “heavy burden of negation” to show that this

connection between the firearm and his charged offenses was clearly improbable.

Carillo-Ayala, 713 F.3d at 90. We accordingly affirm the application of the

firearms enhancement.

IV.

A party challenging a sentence must show that the sentence is unreasonable

in light of the record, the 18 U.S.C. § 3553(a) factors, and the substantial deference

afforded sentencing courts. United States v. Rosales-Bruno, 789 F.3d 1249, 1256

(11th Cir. 2015). We may vacate a sentence only if we are “left with the definite

and firm conviction that the district court committed a clear error of judgment in

weighing the § 3553(a) factors by arriving at a sentence that lies outside the range

of reasonable sentences dictated by the facts of the case.” Irey, 612 F.3d at 1190

(quotation omitted). The weight that each § 3553(a) factor should receive is a

matter within the sound discretion of the district court. See United States v.

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Williams, 526 F.3d 1312, 1322–23 (11th Cir. 2008). Though we do not presume

that a within-Guidelines sentence is reasonable, that is one indicator of substantive

reasonableness; another is whether the sentence falls below the statutory

maximum. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008); United

States v. Croteau, 819 F.3d 1293, 1310 (11th Cir. 2016).

Holmes “humbly disagrees” with the district court’s assessment of the

§ 3553(a) factors. But it was his burden to establish that his sentence was

substantively unreasonable—and he has not done so. Irey, 612 F.3d at 1191 n.16.

In fact, he has not pointed to any specific § 3553(a) factors that the judge

incorrectly weighed or failed to consider.

Here, the district court stated that it had considered all of the § 3553(a)

factors before arriving at its chosen sentence; it even specifically addressed some

of those factors when it mentioned Holmes’s “bad record,” his “habit of running

from the police,” and his persistent pattern of violating conditions of supervision.

See 18 U.S.C. § 3553(a)(1)–(2). It also stated that it had considered Dr. Johnson’s

testimony, which focused on Holmes’s upbringing; the court even directed Holmes

to participate in mental-health treatment “as recommended by Dr. Johnson.” See

id. § 3553(a)(2). Holmes’s sentence is within his guideline range and below the

statutory maximum—both of which indicate that the sentence is reasonable. See

Hunt, 526 F.3d at 746; Croteau, 819 F.3d at 1310. We conclude that Holmes’s

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103-month sentence lies within the range of reasonable choices; it accordingly is

not substantively unreasonable. Irey, 612 F.3d at 1190.

AFFIRMED.