United States of America v. Gary Delino Holmes

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4531
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARY DELINO HOLMES,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:06-cr-01319-RBH-1)
Submitted: November 30, 2010 Decided: January 6, 2011
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Wallace H. Jordan, Jr., Florence, South Carolina, for Appellant.
Alfred William Walker Bethea, Jr., Assistant United States
Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Gary Delino Holmes appeals from his conviction and
292-month sentence following his guilty plea to one count of
conspiracy to possess with intent to distribute and to
distribute 5 grams or more of cocaine base, 500 grams or more of
cocaine, and 100 grams or more of heroin, in violation of 21
U.S.C. § 846 (2006) (“Count One”); and one count of using,
carrying and possessing a firearm during and in relation to and
in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1) (2006) (“Count Five”). Holmes’s counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738,
744 (1967), stating that there are no meritorious issues for
appeal, but questioning whether a sufficient factual basis
exists to support Holmes’s guilty plea to Count Five; and
whether Holmes should have been subjected to the five-year
mandatory minimum sentence on Count Five. Holmes filed a pro se
supplemental brief challenging his sentence. We affirm.
Holmes first argues that the district court erred in
accepting his guilty plea to Count Five because it was not
supported by a factual basis. Federal Rule of Criminal
Procedure 11(b)(3) provides that “[b]efore entering judgment on
a guilty plea, the court must determine that there is a factual
basis for the plea.” This rule is “intended to ensure that the
court make clear exactly what a defendant admits to, and whether

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those admissions are factually sufficient to constitute the
alleged crime,” and it “is designed to protect a defendant who
is in the position of pleading voluntarily with an understanding
of the nature of the charge but without realizing that his
conduct does not actually fall within the charge.” United
States v. Mastrapa, 509 F.3d 652, 659-60 (4th Cir. 2007).
“[A] defendant may raise on direct appeal the failure
of a district court to develop on the record a factual basis for
a plea.” United States v. Ketchum, 550 F.3d 363, 366 (4th Cir.
2008) (internal quotation marks omitted). In assessing the
factual basis, the district court has wide discretion and need
not “replicate the trial that the parties sought to avoid” or
“rely only on the Rule 11 plea colloquy,” but “may conclude that
a factual basis exists from anything that appears on the
record.” Ketchum, 550 F.3d at 366-67 (internal quotation marks
omitted). This court reviews a district court’s finding of a
factual basis for abuse of discretion, and the court “will not
find an abuse of discretion so long as the district court could
reasonably have determined that there was a sufficient factual
basis based on the record before it.” Mastrapa, 509 F.3d at
660.
A violation of § 924(c)(1) requires proof that the
defendant used or carried a firearm during and in relation to a
drug trafficking crime or possessed a firearm in furtherance of

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a drug trafficking crime. United States v. Nelson, 484 F.3d
257, 260 (4th Cir. 2007) (noting elements under § 924(c) statute
for use or carry); United States v. Lomax, 293 F.3d 701, 705
(4th Cir. 2002) (same, for possession in furtherance). A
firearm can further or advance drug trafficking by “provid[ing]
a defense against someone trying to steal drugs or drug profits,
or . . . lessen[ing] the chance that a robbery would even be
attempted.” Lomax, 293 F.3d at 705 (internal quotation marks
omitted). Factors that indicate a connection between the
possession of a firearm and drug trafficking activity include
the accessibility of the firearm and the gun’s proximity to
drugs. Id.
Here, both the presentence report and the factual
basis provided by the Government establish that Holmes carried
the firearm and the narcotics on his person. Accordingly, we
find that there was no Rule 11 error when the court found a
factual basis for Holmes’s plea.
Holmes also argues that he should not have been
subjected to the five-year mandatory minimum sentence on Count
Five because he was subject to a mandatory minimum sentence on
Count One. The Supreme Court has recently rejected the
interpretation of § 924(c)(1) advanced by Holmes. Abbott v.
United States, __ S. Ct. __, 2010 WL 4569898 (U.S. Nov. 15,
2010) (Nos. 09-479, 09-7073). Therefore, his sentence is not

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subject to attack on this ground. We have also considered
Holmes’s pro se arguments, and find they entitle him to no
relief.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Holmes’s convictions and sentence.
This court requires that counsel inform Holmes, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Holmes requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Holmes. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED

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