United States of America v. Rahsean Holmes, a/k/a Ox

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4946
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RAHSEAN HOLMES, a/k/a Ox,
Defendant – Appellant.
No. 09-4313
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTIONE BOYCE, a/k/a Dallas,
Defendant – Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:07-cr-00383-CCB-1; 1:07-cr-00383-CCB-3)
Submitted: March 4, 2010 Decided: April 30, 2010
Before NIEMEYER, KING, and SHEDD, Circuit Judges.

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Affirmed by unpublished per curiam opinion.
Thomas J. Saunders, LAW OFFICE OF THOMAS J. SAUNDERS, Baltimore,
Maryland; Michael Lawlor, LAWLOR & ENGLERT, LLC, Greenbelt,
Maryland, for Appellants. Rod J. Rosenstein, United States
Attorney, Michael C. Hanlon, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Rahsean Holmes was convicted after a jury trial of two
counts of conspiracy to commit Hobbs Act robbery, in violation
of 18 U.S.C. §§ 2, 1951(a) (2006), one count of possession of
firearms by a convicted felon, in violation of 18 U.S.C. §§ 2,
922(g)(1) (2006), one count of conspiracy to distribute and
possess with the intent to distribute cocaine, in violation of
21 U.S.C. § 846 (2006), and one count of possession of firearms
in furtherance of a crime of violence and a drug trafficking
crime, in violation of 18 U.S.C. § 924(c) (2006). The district
court sentenced Holmes to 420 months’ imprisonment. Antione
Boyce was convicted after a jury trial of one count of
conspiracy to commit Hobbs Act robbery, in violation of
18 U.S.C. § 1951(a), one count of possession of firearms by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1), one
count of possession of firearms in furtherance of a crime of
violence and a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c), and one count of conspiracy to distribute and possess
with the intent to distribute cocaine, in violation of 21 U.S.C.
§ 846. The district court sentenced Boyce to 210 months’
imprisonment, a prison term that includes a 60-month consecutive
sentence on the § 924(c) count. Holmes and Boyce appeal their
convictions and sentences. We affirm.

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Holmes and Boyce first contend that the § 1951(a)
counts were constructively amended by the district court’s jury
instructions, rendering those convictions invalid under the
Fifth Amendment. Additionally, because the district court
instructed the jury that it could convict on the § 924(c) counts
if it found that Holmes and Boyce possessed firearms to further
their § 1951(a) violations, they contend that the district
court’s Fifth Amendment error warrants reversal of the § 924(c)
counts as well. These claims are without merit.
A criminal defendant may only be tried on charges
alleged in an indictment, and “only the grand jury may broaden
or alter the charges in the indictment.” United States v.
Randall, 171 F.3d 195, 203 (4th Cir. 1999). “A constructive
amendment to an indictment occurs when . . . the court (usually
through its instructions to the jury) . . . broadens the
possible bases for conviction beyond those presented by the
grand jury,” which results in a “fatal variance[] because ‘the
indictment is altered to change the elements of the offense
charged, such that the defendant is actually convicted of a
crime other than that charged in the indictment.’” United
States v. Foster, 507 F.3d 233, 242 (4th Cir. 2007) (quoting
Randall, 171 F.3d at 203 (internal quotation marks omitted)).
Constructive amendments are “error per se and, given the Fifth
Amendment right to be indicted by a grand jury, ‘must be

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corrected on appeal even when not preserved by objection.’” Id.
(quoting United States v. Floresca, 38 F.3d 706, 714 (4th Cir.
1994) (en banc)). However, not every variance between an
indictment and jury instructions rises to the level of a
constructive amendment. Indeed, it is well-established that
“when the Government charges in the conjunctive, [but] the
statute [at issue] is worded in the disjunctive, the district
court can instruct the jury in the disjunctive” without
constructively amending the indictment. United States v. Perry,
560 F.3d 246, 256 (4th Cir.), cert. denied, 130 S. Ct. 177
(2009). Instructing otherwise would “improperly add elements to
the crime that are not contained in the statute itself.” United
States v. Montgomery, 262 F.3d 233, 242 (4th Cir. 2001).
Here, although the indictment charged Holmes and Boyce
with conspiring to “obstruct, delay, and affect commerce” by
robbery, the pertinent statute, 18 U.S.C. § 1951(a), is phrased
disjunctively, and the district court’s jury instructions on
those counts tracked the statutory language. Accordingly,
because the district court did not constructively amend the
indictment as to the § 1951(a) counts, Holmes’ and Boyce’s
claims of Fifth Amendment error fail.
Next, Holmes contends that the district court erred in
denying his pre-trial request to represent himself. Although a
criminal defendant has the right to represent himself at trial,

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Faretta v. California, 422 U.S. 806, 819-20 & n.15 (1975), his
assertion of that right must be “(1) clear and unequivocal; (2)
knowing, intelligent and voluntary; and (3) timely,” United
States v. Bush, 404 F.3d 263, 271 (4th Cir. 2005). A
deprivation of the right to self-representation is a structural
error that requires automatic reversal because the impact of
“its denial is not amenable to ‘harmless error’ analysis.”
McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984).
After review of the record, we conclude that Holmes
did not clearly and unequivocally invoke his right to self-
representation. A little over two weeks prior to the start of
trial, Holmes’ mother filed a motion on his behalf, requesting
the dismissal of Holmes’ court-appointed counsel, the
appointment of new counsel for Holmes, and a delay in the trial
start date. At a hearing on the motion, Holmes voiced
complaints concerning counsel’s performance, but when asked
directly by the district court whether he wanted to represent
himself, Holmes only reiterated his request for new counsel.
Holmes also concurred with the district court that self-
representation would be “foolish” and conceded that he was not
equipped to represent himself. Although Holmes did voice some
willingness to represent himself, he never explicitly and
unequivocally requested to do so.

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Holmes also claims that the district court erred in
denying his motion to suppress evidence seized during a vehicle
search and in enhancing his sentence under 21 U.S.C. § 851
(2006). However, because Holmes fails to support these claims
in accordance with Fed. R. App. P. 28(a)(9)(A) (“[T]he
[appellant’s] argument . . . must contain . . . appellant’s
contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant
relies.”), we deem them abandoned. See Edwards v. City of
Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999) (“Failure to
comply with the specific dictates of [Fed. R. App. P.
28(a)(9)(A)] with respect to a particular claim triggers
abandonment of that claim on appeal.”); 11126 Baltimore Blvd.,
Inc. v. Prince George’s County, 58 F.3d 988, 993 n.7
(4th Cir. 1995) (en banc) (involving the predecessor to Fed. R.
App. P. 28(a)(9)(A)), abrogated on other grounds by, City of
Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004); see
also Rosenberger v. Rector & Visitors of Univ. of Va., 18 F.3d
269, 276 (4th Cir. 1994) (concluding that where the parties fail
to support their claims with contentions and citations to the
record, such failure precludes this court from considering those
claims), rev’d on other grounds, 515 U.S. 819 (1995).
Boyce also challenges the district court’s enhancement
under 21 U.S.C. § 851 of his sentence on the § 846 conspiracy

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count. He argues first that the enhancement violates the Fifth
Amendment because the predicate felony convictions used to
enhance his sentence under § 851 were not referenced in the
indictment. However, this claim fails under controlling circuit
precedent, see United States v. Thompson, 421 F.3d 278, 284 n.4
(4th Cir. 2005) (holding that an indictment need not reference
or list the prior convictions used to enhance a sentence);
United States v. Cheek, 415 F.3d 349, 352-54 (4th Cir. 2005)
(holding that prior convictions used as the basis for an armed
career criminal sentence need not be charged in indictment or
proven beyond a reasonable doubt).
Boyce also argues that the § 851 enhancement violates
the Sixth Amendment. Although Boyce recognizes that the Supreme
Court has held that the Government need not plead a prior
conviction in an indictment or present such evidence to a jury
in order to rely on it to enhance a sentence, see
Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 247
(1998), he asserts that the precedential value of Almendarez-
Torres is open to question, relying on Apprendi v. New Jersey,
530 U.S. 466, 489 (2000) (“[I]t is arguable that Almendarez-
Torres was incorrectly decided.”), Shepard v. United States, 544
U.S. 13, 27 (2005) (Thomas, J., concurring) (stating that “a
majority of the [Supreme] Court now recognizes that Almendarez-
Torres was wrongly decided”), and Blakely v. Washington, 542

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U.S. 296, 304 (2004) (“When a judge inflicts punishment that the
jury’s verdict alone does not allow, the jury has not found all
the facts which the law makes essential to the punishment, and
the judge exceeds his proper authority.” (internal quotation
marks and citation omitted)). Though many defendants argue that
Almendarez-Torres may no longer be good law, Booker clearly
maintained the prior conviction exception, see United States v.
Booker, 543 U.S. 220, 244 (2005) (“Any fact (other than a prior
conviction) [that] is necessary to support a sentence . . . must
be admitted by the defendant or proved to a jury.”), and this
court has confirmed that Almendarez-Torres was not overruled by
either Apprendi or Booker and remains the law. Cheek, 415 F.3d
at 353; United States v. Sterling, 283 F.3d 216, 220 (4th Cir.
2002).
Finally, Boyce argues that the district court erred in
imposing a consecutive, 60-month mandatory minimum prison term
on his § 924(c) conviction. Section 924(c)(1)(A) of Title 18
provides, in relevant part, for a mandatory minimum sentencing
schedule, “[e]xcept to the extent that a greater minimum
sentence is otherwise provided by this subsection or by any
other provision of law.” In light of this clause, Boyce argues
that the district court erred in imposing the 60-month sentence
because he was already subject to a ten-year mandatory minimum
sentence due to his conviction on the § 846 count and his prior

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drug convictions. Boyce correctly concedes, however, that the
argument he advances is foreclosed by United States v. Studifin,
240 F.3d 415 (4th Cir. 2001). Although Boyce suggests that
Studifin should be re-examined, “a panel of this court cannot
overrule, explicitly or implicitly, the precedent set by a prior
panel of this court. Only the Supreme Court or this court
sitting en banc can do that.” Scotts Co. v. United Indus.
Corp., 315 F.3d 264, 271 n.2 (4th Cir. 2002) (internal quotation
marks omitted).
Accordingly, we affirm the district court’s judgments
and deny Boyce’s motion for abeyance. 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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