United States v. Marcus S. Holmes

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 19, 2018
• Docket: 17-14079
• Status: Unpublished

Opinion

Case: 17-14079 Date Filed: 06/19/2018 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-14079 Non-Argument Calendar ________________________

D.C. Docket No. 1:16-cr-00020-MW-GRJ-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARCUS S. HOLMES,

Defendant-Appellant.

________________________

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

(June 19, 2018)

Before TJOFLAT, NEWSOM and BLACK, Circuit Judges.

PER CURIAM: Case: 17-14079 Date Filed: 06/19/2018 Page: 2 of 3

Marcus S. Holmes appeals his 57-month sentence for failing to register as a

sex offender under 18 U.S.C. § 2250(a). Holmes contends the district court plainly

erred by running his sentence consecutively to a 15-year sentence Holmes is

serving for sexual assault under Florida law. According to Holmes, the sexual-

assault conviction was relevant conduct for purposes of U.S.S.G. § 5G1.3(b)(2),

thus the district court was required to run his sentences concurrently. See U.S.S.G.

§ 5G1.3(b)(2). After review, 1 we affirm.

At sentencing, the district court asked Holmes’ counsel whether a concurrent

sentence was mandatory. See USDC Doc. 61 at 13. Holmes’ counsel confirmed

“[i]t’s absolutely discretionary.” Id. The district court then clarified its question:

“[W]hen I say ‘discretionary versus mandatory,’ there are certain instances in

which you must run things concurrently and nobody is suggesting that’s the case

here; correct?” Id. at 14. Holmes’ counsel replied that was correct. Id.

We have consistently held that parties cannot appeal from errors they

invited. See United States v. Haynes, 764 F.3d 1304, 1308 (11th Cir. 2014)

(“When a party invites an error, we are precluded from invoking plain-error review

to reverse that error.”); United States v. Love, 449 F.3d 1154, 1157 (11th Cir.

2006) (“We do not reach the merits of Love’s arguments because we conclude

1 Where, as here, a sentencing argument is raised for the first time on appeal, we review for plain error. United States v. Haynes, 764 F.3d 1304, 1308 (11th Cir. 2014). But an “invited error,” plain or otherwise, is not grounds for reversal. Id. 2 Case: 17-14079 Date Filed: 06/19/2018 Page: 3 of 3

Love induced or invited the ruling he now claims was error.”); United States v.

Silvestri, 409 F.3d 1311, 1327 (11th Cir. 2005) (“Where invited error exists, it

precludes a court from invoking the plain error rule and reversing.” (quotation

omitted)); United States v. Ross, 131 F.3d 970, 988 (11th Cir. 1997) (“It is a

cardinal rule of appellate review that a party may not challenge as error a ruling or

other trial proceeding invited by that party.” (quotation omitted)). Here, Holmes

told the district court it had discretion to impose a consecutive sentence. Holmes

cannot complain on appeal that the district court followed his advice.

AFFIRMED.