United States of America v. Emarque Holt

United States Court of Appeals
For the Eighth Circuit
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No. 19-1003
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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Emarque Holt

lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: December 27, 2019
Filed: January 3, 2020
[Unpublished]
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Before GRUENDER, BENTON, and STRAS, Circuit Judges.
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PER CURIAM.

Emarque Holt pleaded guilty to possessing stolen mail, 18 U.S.C. § 1708, and
received a within-Guidelines-range sentence of 24 months in prison. In an Anders
brief, Holt’s counsel requested permission to withdraw and raised four claims: (1)
the lack of a knowing and voluntary guilty plea; (2) the unenforceability of the
appeal waiver; (3) the inapplicability of three Guidelines enhancements; and (4) the

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substantive unreasonableness of the sentence. See Anders v. California, 386 U.S.
738 (1967). Holt also filed a pro se brief. We affirm in part, vacate in part, and
remand.

As to the first issue, the record shows that Holt knowingly and voluntarily
pleaded guilty. See Nguyen v. United States, 114 F.3d 699, 703 (8th Cir. 1997)
(explaining that a defendant’s statements during the plea hearing carry “a strong
presumption of verity”). We need not decide the second issue—whether the appeal
waiver is enforceable—because Holt explicitly reserved the right to challenge his
sentence on appeal. See United States v. Andis, 333 F.3d 886, 889–90 (8th Cir. 2003)
(en banc).

Moving on to the sentence itself, the district court had ample reason to impose
the sophisticated-means and unauthorized-use-of-an-identification enhancements
based on the nature of the scheme, which involved creating fraudulent checks and
having poor people cash them. See United States v. Norwood, 774 F.3d 476, 479–
80 (8th Cir. 2014) (per curiam); see also U.S.S.G. § 2B1.1(b)(10)(C), (11)(C)(i).
The leadership enhancement found support in the level of direction that Holt gave
to others. See id. § 3B1.1(a). None of those findings was clearly erroneous. See
United States v. McGee, 890 F.3d 730, 734 (8th Cir. 2018).

Nor is Holt’s overall sentence substantively unreasonable. See United States
v. Callaway, 762 F.3d 754, 760 (8th Cir. 2014) (stating that a within-Guidelines-
range sentence is presumptively reasonable). The record establishes that the district
court sufficiently considered the statutory sentencing factors, 18 U.S.C. § 3553(a),
and did not rely on an improper factor or commit a clear error of judgment. See
United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc).

After independently reviewing the record under Penson v. Ohio, 488 U.S. 75
(1988), we ordered supplemental briefing to address a potential conflict between the
oral pronouncement imposing “drug testing” and a special condition added later to
the district court’s written judgment. The special condition—which would require

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Holt to refrain from using alcohol, attend substance-abuse treatment “as
recommended,” and potentially pay for a portion of it himself—conflicts with the
limited drug-testing requirement orally announced at sentencing. We therefore
vacate the special condition and remand to the district court for clarification, see
United States v. Gustus, 926 F.3d 1037, 1041 (8th Cir. 2019), but affirm in all other
respects.
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