168th and Dodge v. Rave Reviews Cinemas

1The Honorable Carol E. Jackson, Chief Judge, United States District Court for
the Eastern District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-4183
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Michael James Holmes, *
* [UNPUBLISHED]
Appellant. *
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Submitted: June 14, 2007
Filed: August 15, 2007
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Before MURPHY, BEAM, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Michael James Holmes was found guilty, following a jury trial, of possession
with intent to distribute 50 grams or more of a substance containing cocaine base
(crack), in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii), and of knowing
possession of one or more firearms in furtherance of a drug trafficking crime, in
violation of 18 U.S.C. § 924(c). The district court 1 sentenced Holmes to mandatory
consecutive prison terms of 240 months, the statutory minimum, on the drug
conviction and 60 months, the statutory minimum, on the firearm conviction; he was

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sentenced to concurrent supervised-release terms of ten years and three years,
respectively. On appeal, Holmes’s counsel has moved to withdraw and has filed a
brief under Anders v. California, 386 U.S. 738 (1967), raising issues under Batson v.
Kentucky, 476 U.S. 79 (1986), and with regard to the admission of evidence. Holmes
has submitted letters to this court which raise issues related to those already raised by
his counsel on appeal.
Concerning the Batson claim, the district court correctly denied Holmes’s
challenge to the government’s use of peremptory strikes against three venire persons.
See United States v. Pherigo, 327 F.3d 690, 695 (8th Cir. 2003) (clear error standard
of review). On appeal, Holmes specifically challenges the use of the peremptory
strike against a certain black venire woman. However, the government presented a
race-neutral reason for the strike and had also used its peremptory strikes against
similarly-situated white venire persons. Holmes failed to show that this proffered
explanation was pretext for discrimination. See United States v. Maxwell, 473 F.3d
868, 871 (8th Cir. 2007) (explaining the process and burdens in presenting a Batson
challenge).
Further, the district court did not abuse its discretion in denying Holmes’s
motions in limine to exclude the introduction of a prior drug conviction or his 2003
tax returns. See United States v. Walker, 428 F.3d 1165, 1171 (8th Cir. 2005) (abuse
of discretion standard of review); United States v. Molina, 172 F.3d 1048, 1054-55
(8th Cir. 1999) (upholding admission of trafficking and possession convictions from
ten years prior to offense charged to refute defendant’s assertion that she was innocent
bystander in drug transactions); United States v. Trotter, 889 F.2d 153, 155 (8th Cir.
1989) (evidence that defendant failed to file tax return was probative of net worth and
relevant to defendant’s claim that money found with drugs was not product of drug
distribution).

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After conducting a careful, independent review of the record, including the
transcripts of the trial and the sentencing, in accordance with Penson v. Ohio, 488 U.S.
75, 80 (1988), we have found no nonfrivolous issues. Thus, we grant counsel’s
motion to withdraw, and we affirm. We deny appellant’s second motion to
supplement the record.
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