                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-4519


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DANIEL HOLMES, a/k/a Dan, a/k/a Big Dan,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Beaufort.    Sol Blatt, Jr., Senior District
Judge. (9:04-cr-00429-SB-1)


Argued:   May 11, 2010                        Decided:    June 22, 2010


Before TRAXLER,   Chief   Judge,   and   NIEMEYER   and   AGEE,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Robert Sneed, ROB SNEED LAW FIRM, LLC, Greenville, South
Carolina, for Appellant. Eric John Klumb, OFFICE OF THE UNITED
STATES ATTORNEY, Charleston, South Carolina, for Appellee.    ON
BRIEF: W. Walter Wilkins, United States Attorney, Columbia,
South Carolina, Matthew J. Modica, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Appellant     Daniel     Holmes      challenges        his      conviction     and

sentence for conspiracy to possess with intent to distribute,

and to distribute, 50 grams or more of cocaine base (crack) and

cocaine.     See 21 U.S.C.A. §§ 841(a)(1), 841(b)(1), & 846 (West

1999 & Supp. 2010).      We affirm.



                                           I.

      This   case   arises     out    of    Holmes’       involvement      in    a   drug

distribution conspiracy in St. Helena Island and nearby areas in

Beaufort County, South Carolina, from 1992 to 2002.                             To prove

the   conspiracy,      the    government         presented      the      testimony     of

numerous     witnesses       who   were        involved    in      the    distribution

activities occurring there and who dealt with Holmes, as well as

the testimony of law enforcement officers in South Carolina,

Florida, and Texas, regarding their encounters with Holmes.

      The first category of evidence pertains to Holmes’ drug

dealing activities during the years 1992 to 1994.                          Aldolpheous

Green, Jamie Green, Joveco Scott, Andre Livingston, and Jermaine

Fields   all    testified      that   they       purchased      crack     from    Holmes

during   this   time   period.        Livingston          further     testified      that

Holmes “was fronting [him] the drugs” for sale, J.A. 442, and

Fields testified that he and Scott “moved drugs for [Holmes],”



                                           2
J.A. 482.       On one occasion, Scott and Livingston traveled with

Holmes to Savannah, Georgia, with the intent to purchase drugs.

     In    May      1993,   Beaufort    County   police    officers        arrested

Holmes    on    a   fugitive   warrant.      During    a   search     of    Holmes’

vehicle, the officers found crack weighing approximately 2.73

grams.      In January 1994, law enforcement officers arranged a

controlled purchase of crack at Holmes’ residence.                         In March

1994, a second controlled purchase was made.                A search warrant

was then obtained for Holmes’ residence where officers found

3.47 grams of crack cocaine, 2.12 grams of powder cocaine, and

firearms.        Holmes confessed to the officers that he had been

selling crack for some time and that his 16-year-old nephew had

been selling crack for him.             However, Holmes would not identify

his nephew by name, his suppliers, or his customers. 1

     The       second   category   of    evidence     consists   of    testimony

describing Holmes’ drug dealing activities from 1997 to 2002.

Arthur Chaplin testified that he began selling crack in 1996 and

first purchased crack from Holmes in 1997.                  In 1998, Chaplin

began purchasing powder cocaine from Holmes.               He made two nine-

     1
       On August 17, 1994, Holmes pled guilty in state court to
separate charges of possession with intent to distribute powder
cocaine on March 19, 1994, possession with intent to distribute
crack on March 15, 1994, and distribution of crack on January
20, 1994. He was sentenced to twelve years in prison, suspended
to six years in prison and five years’ probation.       He was
paroled on October 16, 1996.



                                         3
ounce purchases from Holmes for $6,500 each, and traveled with

Holmes to Savannah, Georgia, to pick up the drugs for the second

purchase.     Chaplin later gave Holmes $13,000 for the purchase of

a kilogram of cocaine powder, which was to be a part of a larger

purchase of 20 kilograms of cocaine by Holmes from a source in

Coco Beach, Florida.          Approximately two weeks after Chaplin gave

Holmes the money, Holmes told Chaplin that the expected shipment

of cocaine had not arrived and he asked Chaplin to travel to

Florida with him and a third man to get the drugs.

       On August 2, 1999, while en route to Coco Beach, Florida,

Holmes was stopped by Nassau County Sheriff’s detectives working

with    a   drug   interdiction      team       just    outside     of    Jacksonville,

Florida.      A firearm found in the vehicle was claimed by Holmes

and he was arrested and charged with possession of a firearm by

a   convicted      felon    and    possession      of    a    firearm     with   altered

serial numbers.       Chaplin and the third man continued the trip to

Coco Beach, where they were to contact Holmes’ nephew about the

expected shipment.          Upon arrival, however, Chaplin was told that

the    shipment    had     still   not   arrived        and   the   men    returned   to

Beaufort.       When Chaplin arrived in Beaufort, he contacted Ivy

Nesbitt, whom Chaplin understood was Holmes’ “partner[] [i]n the

drug game,” and told Nesbitt that Holmes had been arrested on

the trip.     J.A. 291.



                                            4
       Approximately two weeks later, Holmes returned to Beaufort.

Holmes gave Chaplin ten one-pound bags of marijuana to make up

in part for the $13,000 that Chaplin had paid for the unrealized

cocaine    shipment.            Shortly      thereafter,         Chaplin      was   traveling

with Holmes on Seaside Road in St. Helena Island when Beaufort

County    officers       initiated       a     traffic     stop.        Chaplin,         who   was

driving,    accelerated          and    Holmes       threw      four    ounces      of    crack,

which he had just given to Chaplin in further repayment of the

debt, out of the window of the vehicle.                            Chaplin was charged

with failure to stop for a blue light.                          Holmes was released and

walked    back      to   retrieve        the    crack      he     had   thrown      from       the

vehicle.        A   few    days        later,       Holmes      returned      the   crack       to

Chaplin.       In December 1999, Chaplin purchased eighteen ounces of

cocaine from Holmes for $12,000.

       Romel    Middleton        testified          that   in    1997    or    1998,      Holmes

approached him “and asked [him] if [he] would like to make some

money.”     J.A. 341-42.            Holmes proposed that Middleton “sell[]

crack cocaine with the means of making $100 a half a gram,” and

Middleton agreed.           J.A. 342.           Middleton testified that he was

“working for Mr. Holmes.”               J.A. 342.          According to Middleton, “a

guy . . . named Ivy” was sometimes present during his dealings

with    Holmes.          J.A.    344.          Middleton        testified      that       Holmes

sometimes “fronted” him drugs and that he usually “came through

. . . with the money” but “[s]ometimes . . . came up short.”

                                                5
J.A. 342.          Eventually, Holmes “got tired of it” and “stopped

dealing     with”       Middleton.         J.A.        344.      Middleton       then    began

dealing with Chaplin.              Sheniqua Moultrie also testified that she

would bring crack buyers to Holmes and she would get “[e]xtra

pieces      of    crack”     in     payment       for    her     efforts.         J.A.   419.

Finally, Roderick Chisholm and Travis Polite testified that they

purchased         crack     from     Holmes       in     1999.        Aldolpheous        Green

testified that he sold crack to Holmes in 1998 and 1999.

       In    addition       to     Chaplin’s       testimony         regarding    Nesbitt’s

involvement with Holmes, other witnesses also implicated Nesbitt

as a coconspirator with Holmes.                    Several witnesses, for example,

testified that they would see the men together and believed them

to be working together.                  Joseph Ferguson testified that he ran

into Nesbitt at a gas station in the late 1990s and Nesbitt told

Ferguson         that     they     had    crack        for    sale    at   “low     prices,”

specifically 7 grams for $200.                 J.A. 405.         Over the next several

weeks, Ferguson twice visited Holmes’ residence on Seaside Road,

where he purchased the drugs from Holmes at the price quoted by

Nesbitt.         Dereck Grant testified that in the summer of 1998, he

went to see Nesbitt, his usual supplier, at the Seaside Road

residence and told Nesbitt that he “needed some work.”                                    J.A.

462.     In Grant’s presence, Nesbitt told Holmes “that he [Holmes]

could go ahead and handle that” and Holmes got the drugs for



                                               6
Grant.      J.A. 462.        Grant testified that he also fronted crack to

Holmes in early 2002.

        On September 26, 2000, the Beaufort County Sheriff’s office

made a      controlled       purchase      of       crack   at    Holmes’    residence       at

Seaside     Road.        Several      days      later,      the   officers        executed    a

search warrant at the residence.                      The officers found Holmes in

his    bedroom    with     crack.       Additional          crack,      Ziploc     bags,    and

razor    blades     were     found    in     the     bedroom      of    Holmes’     roommate,

Donald Mitchell, who was not present at the time of the search.

Nesbitt, whose legal residence was in Savannah, Georgia, was at

the residence and a truck registered to him with Georgia tags

was in the yard.              Officers found digital scales with cocaine

residue,     Ziploc      bags,   razor       blades,        and   over    $2,000     in    cash

wrapped around three driver’s licenses in the truck.                              A total of

5.94    grams     of    crack    was       seized      during      the     search     of    the

residence.

       On   April      16,    2001,    Beaufort          County        Sheriff’s     officers

observed Holmes’ vehicle blocking traffic in a roadway.                               Holmes

and Chaplin were in the vehicle.                     When the officers attempted to

initiate     a    traffic      stop,       Holmes      failed      to     stop.     While    in

pursuit, the officers observed Holmes throwing crack out of the

vehicle’s window.            The total weight of the crack later retrieved

by law enforcement officers was 1.58 grams.                            Nesbitt came to the



                                                7
scene of the stop and made eye contact with Holmes but did not

communicate verbally with him.

     On    June    14,       2001,    a    narcotics      interdiction      patrol      near

Houston,    Texas,       a    known       source   city    for    cocaine,      stopped    a

vehicle    carrying      Nesbitt,         Holmes,    and    two   others.        When    the

occupants    of    the        vehicle       gave    conflicting       stories     to    the

officers and behaved nervously, a drug dog was brought to the

scene and alerted officers to possible drugs in a gym bag in the

vehicle.    None of the occupants would claim the gym bag.                             While

no drugs were found, the bag contained $134,500 in U.S. currency

that was “[p]ackaged like dope money.”                     J.A. 644.

     On July 11, 2003, while Holmes was incarcerated for state

drug convictions, federal law enforcement agents served Holmes

with a Texas warrant for money laundering arising from the June

14, 2001, traffic stop.               Holmes told the agents that “he was a

small-time dealer and he dealt basically in Beaufort County to

support his family and that he knew that one day he would be

getting arrested.”           J.A. 499. 2

     On    April    14,       2004,       Holmes    was    charged     in   a   two-count

indictment in South Carolina district court.                         Count One charged

Holmes with conspiracy to possess with intent to distribute, and

     2
       According to the Texas officer, Nesbitt was subsequently
convicted and sentenced in Texas for money laundering.       It
appears that the charges against Holmes were dismissed.



                                              8
to distribute, 50 grams or more of cocaine base (crack) and

cocaine.    Count Two charged Holmes with conspiracy to knowingly

use and carry firearms in relation to drug trafficking offenses.

On June 28, 2006, the government filed an information pursuant

to 21 U.S.C.A. § 851 (West 1999) notifying Holmes that he would

be subject to enhanced penalties due to his prior felony drug

convictions.        On   May   3,   2007,     the     jury   returned        a    verdict

convicting Holmes of the drug count but acquitting him of the

firearm count.       Because Holmes had at least two prior felony

drug convictions, he was sentenced to life imprisonment pursuant

to the mandatory minimum sentence requirement of 21 U.S.C.A.

§§ 841(b)(1)(A).         This appeal, challenging both his conviction

and life sentence, followed.



                                        II.

                                         A.

     Holmes    first     contends      that   the     district   court           erred   in

denying his motion for judgment of acquittal because there was

insufficient     evidence       that     he     was     involved        in        a   drug

distribution conspiracy.            He contends that the evidence merely

established that he was a conspiracy of one, engaged in buying

and selling drugs in the area solely for his own benefit.

     We    review   the    district     court’s       denial   of   a    motion          for

judgment of acquittal de novo.               See United States v. Smith, 451

                                         9
F.3d 209, 216 (4th Cir. 2006); United States v. Alerre, 430 F.3d

681, 693 (4th Cir. 2005).                We view the evidence in the light

most favorable to the government and must affirm if the verdict

is     supported    by     “substantial        evidence.”           United       States    v.

Burgos,    94    F.3d    849,    862    (4th      Cir.    1996)    (en     banc)    (citing

Glasser     v.     United        States,        315       U.S.     60,     80      (1942)).

“[S]ubstantial evidence is evidence that a reasonable finder of

fact    could     accept    as    adequate        and    sufficient        to    support    a

conclusion of a defendant’s guilt beyond a reasonable doubt.”

Id.

       In order to prove the charged conspiracy, the government

must establish beyond a reasonable doubt:                        (1) the existence of

an    agreement    between       two    or   more       persons    to    distribute       and

possess cocaine with intent to distribute; (2) the defendant’s

knowledge    of    the     conspiracy;       and    (3)     that   the     defendant      was

knowingly and voluntarily a part of the conspiracy.                             See United

States v. Yearwood, 518 F.3d 220, 225-26 (4th Cir. 2008).                                 “By

its very nature, a conspiracy is clandestine and covert, thereby

frequently       resulting       in    little      direct       evidence    of     such    an

agreement.”         Burgos,       94    F.3d      at     857.      Consequently,          the

“conspiracy generally is proved by circumstantial evidence and

the context in which the circumstantial evidence is adduced.”

Id.     “Circumstantial evidence tending to prove a conspiracy may

consist of a defendant’s relationship with other members of the

                                             10
conspiracy,    the   length    of   this     association,       the     defendant’s

attitude and conduct, and the nature of the conspiracy.”                     Id. at

858 (internal quotation marks and alterations omitted).                      “[O]ne

may be a member of a conspiracy without knowing its full scope,

or all its members, and without taking part in the full range of

its activities or over the whole period of its existence.”                      Id.

(internal quotation marks omitted).              It is also not necessary to

prove “a discrete, identifiable organizational structure.”                      Id.

(internal quotation marks omitted).               Rather “contemporary drug

conspiracies can contemplate only a loosely-knit association of

members linked only by their mutual interest in sustaining the

overall   enterprise    of    catering      to   the    ultimate   demands    of   a

particular drug consumption market.”                   Id. (internal quotation

marks and alterations omitted).              “[T]he fact that a conspiracy

is loosely-knit, haphazard, or ill-conceived does not render it

any less a conspiracy–or any less unlawful.”                    Id.     “Under the

applicable principles, trial evidence is sufficient to establish

a single conspiracy where the conspirators are shown to share

the   same   objectives,     the    same    methods,      the   same     geographic

spread, and the same results.”             Smith, 451 F.3d at 218.

      Here, there was substantial evidence to establish that a

conspiracy    existed   between      Holmes      and    Nesbitt    to    distribute

crack in the St. Helena Island area of Beaufort County over the

same time period.       Witnesses admittedly involved in the drug

                                       11
trade in the area testified that they understood that Holmes and

Nesbitt were working together in the distribution efforts there.

Nesbitt resided in Savannah, Georgia, where Holmes would travel

to obtain drugs for sale.            And Nesbitt would travel to Beaufort

County where the two men conducted their drug dealing activities

jointly from the Seaside Road residence.                 At least two witnesses

were directed by Nesbitt to the Seaside Road residence for the

purchase of drugs, where they dealt with either or both of the

men.    Ferguson testified that when he went to the residence at

Seaside Road to buy drugs at the price quoted by Nesbitt, he

obtained drugs from Holmes at the same price.                      Grant testified

that when he went to see Nesbitt at the residence for “work,”

Nesbitt asked Holmes to “handle” getting Grant the drugs.                         J.A.

462.      Nesbitt     and   his    truck,     with    drug     paraphernalia,     were

present at the Seaside Road residence during the September 29,

2000, search.         And, of course, Nesbitt and Holmes were together

during the June 2001 trip to Texas with $134,500 “[p]ackaged

like dope money” in a bag that smelled of drugs.                   J.A. 644.

       There    was     also      substantial        evidence    to      establish   a

conspiracy between Holmes and other residents of the St. Helena

Island area to distribute crack in the area during this time

period.     In the early 1990s, Holmes confessed to law enforcement

officers that his nephew was dealing drugs for him.                        Livingston

testified      that     Holmes     was   fronting        him     drugs     for   sale.

                                         12
Middleton testified that he worked for Holmes in the late 1990s,

and that Holmes fronted him drugs for sale as well.                                  Moultrie

testified      that    she   brought         buyers    to    Holmes     for     payment      in

crack.     And several additional witnesses testified that Holmes

was supplying drugs to them.

       In sum, there is substantial evidence to support the jury’s

determination that Holmes was knowingly and voluntarily a part

of a conspiracy with Nesbitt and others to distribute cocaine

and crack in the St. Helena Island area of Beaufort County,

South Carolina, during the charged time period, and that he and

his    coconspirators        shared      the       same     objectives,        methods      and

geographic         spread        in      their            distribution          activities.

Accordingly, the district court properly denied Holmes’ motion

for judgment of acquittal.

                                              B.

       Holmes    next       contends     that        the     trial      court       erred    in

permitting witnesses Ferguson and Grant to testify regarding the

inculpatory      statements      made     by       Nesbitt    either     to     them   or    in

their presence.         Specifically, Holmes challenges the admission

of    Ferguson’s      testimony       that    Nesbitt       said   he    and    Holmes      had

crack    for    sale   at    7   grams       for    $200,    which      led    to    Ferguson

purchasing      the    drugs     from    Holmes       at     the   quoted       price,      and

Grant’s testimony that Nesbitt asked Holmes to get Grant the

drugs he needed to sell when Grant sought out work from Nesbitt.

                                              13
      A statement is not hearsay if it is offered against a party

and was made “by a coconspirator of a party during the course

and   in    furtherance   of    the     conspiracy.”       Fed.   R.   Evid.

801(d)(2)(E).     When the government shows by a preponderance of

the evidence that a conspiracy existed of which the defendant

was a member, and that the coconspirator’s statement was made

during the course of and in furtherance of the conspiracy, the

statement is admissible.        See United States v. Squillacote, 221

F.3d 542, 563 (4th Cir. 2000); United States v. Neal, 78 F.3d

901, 904-05 (4th Cir. 1996).

      We generally review a district court’s decision to admit a

statement under Rule 801(d)(2)(E) for an abuse of discretion.

See Neal, 78 F.3d at 905.             Because Holmes did not make this

objection at trial, however, we review for plain error.                  See

Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725,

731-32 (1993).     We will reverse only if (1) the district court

committed an error, (2) the error is plain, and (3) the error

affects substantial rights of the defendant.               See id. at 732.

Even if these prerequisites are met, however, “Rule 52(b) leaves

the decision to correct the forfeited error within the sound

discretion of the court of appeals, and the court should not

exercise that discretion unless the error seriously affects the

fairness,     integrity    or     public      reputation     of    judicial



                                      14
proceedings.”       Id.     (internal       quotation     marks       and    alteration

omitted).

       Here, the district court did not plainly err in allowing

Nesbitt’s      statements       into   evidence.          As     discussed         above,

substantial evidence established Nesbitt to be a coconspirator

of Holmes.      Because Nesbitt’s statements were made in the course

and    in   furtherance         of   the    conspiracy,        they       were     clearly

admissible under Rule 801(d)(2)(E).

                                           C.

       Holmes next contends that various comments the prosecutor

made during      closing    arguments       deprived    him     of    a     fair    trial.

Because     there   was    no    contemporaneous       objection          made     to   the

statements, we review for plain error.                  See Olano, 507 U.S. at

731-32.

       “[G]reat latitude is accorded counsel in presenting closing

arguments to a jury.            In our adversary system, prosecutors are

permitted to try their cases with earnestness and vigor, and the

jury is entrusted within reason to resolve heated clashes of

competing views.”         United States v. Johnson, 587 F.3d 625, 632

(4th    Cir.    2009)     (internal        quotation    marks,        citations         and

alteration omitted).            This is particularly true during closing

argument – the “time for energy and spontaneity, not merely a

time for recitation of uncontroverted facts.”                          Id. (internal

quotation marks omitted).              “To be sure, there are some lines

                                           15
that    prosecutors          may    not     cross.            But    to     parse     through     a

prosecutor’s          closing       statement          for    minor       infelicities      loses

sight    of    the     function      of     our    adversary         system,     which      is    to

engage      opposing        views    in     a   vigorous           manner.”         Id.    at    633

(citation omitted); see also Bates v. Lee, 308 F.3d 411, 422

(4th Cir. 2002).

       We     apply    “a    two-pronged          test       for    determining       whether      a

prosecutor’s         misconduct       in    closing          argument      ‘so   infected        the

trial    with    unfairness         as     to   make        the    resulting     conviction        a

denial of due process.’”                 United States v. Wilson, 135 F.3d 291,

297 (4th Cir. 1998) (quoting Darden v. Wainwright, 477 U.S. 168,

181    (1986)).          A    defendant         must        demonstrate       (1)     “that      the

prosecutor’s          remarks        were       improper”           and    (2)      “that       they

prejudicially affected the defendant’s substantial rights so as

to deprive him of a fair trial.”                        Id. (internal quotation marks

and     alterations          omitted).                 In     evaluating         whether         the

prosecutor’s          remarks       prejudiced          the       defendant,     we       consider

several factors, including:

       (1) the degree to which the prosecutor’s remarks had a
       tendency to mislead the jury and to prejudice the
       defendant; (2) whether the remarks were isolated or
       extensive; (3) absent the remarks, the strength of
       competent proof introduced to establish the guilt of
       the defendant; [and] (4) whether the comments were
       deliberately   placed  before   the   jury  to  divert
       attention to extraneous matters . . . .




                                                  16
United States v. Scheetz, 293 F.3d 175, 186 (4th Cir. 2002);

United States v. Adam, 70 F.3d 776, 780 (4th Cir. 1995).

       In the course of his closing argument, the prosecutor made

several    comments      that   Holmes        contends       were     unsupported        or

misleading.        First,       Holmes      objects      to        the    prosecutor’s

arguments: (1) that Holmes admitted to the conspiracy when he

confessed to law enforcement officers in 1994 that his nephew

was selling drugs for him and when he confessed to DEA agents in

2002 to being a drug dealer; (2) that Holmes was involved in the

conspiracy with his nephew, Mitchell, Middleton, and Grant; (3)

that Mitchell admitted to being in a conspiracy with Holmes when

he testified that Holmes fronted him drugs; and (4) that the

$134,500 found in the car in Texas with Nesbitt and Holmes was

drug   money.     However,      we   find     these    arguments         to    have   been

sufficiently supported by the testimony to be considered fair

comments   upon    the   evidence.       The     evidence       was      sufficient      to

establish that Holmes was involved in a conspiracy to distribute

drugs in Beaufort County with Nesbitt and a number of other

persons,    including     Holmes’     nephew,      Mitchell,          Middleton,        and

Grant.     The    prosecutor     remained       within       acceptable        bounds    in

arguing    that   the    statements      Holmes       made    to    law       enforcement

officers at the beginning and end of the conspiracy period could

fairly be construed, in conjunction with the other evidence, as

admissions on his part to having worked with others to supply

                                         17
drugs to the area.               And it was well within the permissible

limits for the prosecutor to argue that the $134,500, packaged

as drug money in a bag that smelled of drugs, had been near

drugs at some point in the past and was intended to be used to

purchase drugs in the future.

       Second,      Holmes      claims    that      the   prosecutor       made     three

misstatements regarding the evidence presented at trial.                          Holmes

asserts that the prosecutor erroneously represented to the jury

that no specific promises had been made to Livingston or Chisolm

in return for their testimony against Holmes.                         Holmes contends

that   the   prosecutor         erroneously        represented      that   Chisolm    and

Scott had testified in a previous trial regarding their dealings

with Holmes.        And, Holmes objects to the prosecutor’s statement

that when Chaplin told Nesbitt of Holmes’ arrest in Florida,

Nesbitt told Chaplin not to worry because they would take care

of it and get Holmes out of jail.

       As to the prosecutor’s statements regarding the lack of

promises     made    to   the    witnesses,        we   find   no    error.       Chisolm

testified that the government had promised that his cooperation

would be reported to the court and Livingston implied that he

expected     some    benefit      if     he    cooperated.          However,      neither

statement or expectation is inconsistent with the prosecutor’s

correct representation that no specific promises had been made

to either man.

                                              18
        With regard to the remaining remarks, the prosecutor does

appear to have incorrectly expanded upon the testimony actually

elicited at trial.               Although both Scott and Chisolm testified

that they had provided testimony in prior trials, Scott was not

asked    whether      his    prior      testimony        included   information     about

Holmes and Chisolm was not asked about the specifics of his

prior testimony about Holmes.                However, even if the prosecutor’s

remarks were improper, the comments did not “so infect[] the

trial    with   unfairness         as   to   make    the     resulting      conviction    a

denial    of    due    process.”         Wilson,     135     F.3d   at   297   (internal

quotation marks omitted).                The remarks were brief and isolated,

there is no indication that the prosecutor offered the remarks

with an intention to mislead the jury or that they otherwise

diverted the jury’s attention from the evidence, and the proof

of guilt in the case was significant.                      In addition, the jury was

instructed      that    statements        made      by    counsel    were    not   to    be

considered evidence in the case.                    See Bennett v. Angelone, 92

F.3d 1336, 1346-47 (4th Cir. 1996).                        Accordingly, we find no

reversible      error       in   the    prosecutor’s        statements,      nor   can   we

conclude that their cumulative effect warrants reversal.                                 See

United States v. Martinez, 277 F.3d 517, 534 (4th Cir. 2002).




                                             19
                                          III.

                                              A.

       Holmes   next       argues      that    the    district   court     erred      in

sentencing      him        to   life     imprisonment        under    21    U.S.C.A.

§ 841(b)(1)(A), because he did not have the requisite two prior

felony drug convictions.

       Prior to trial, the government filed an information under

21 U.S.C.A. § 851, notifying Holmes that he was subject to an

enhanced sentence under § 841(b)(1)(A), based upon prior felony

drug convictions.          At sentencing, the government introduced five

such convictions into evidence.                    The first three convictions

were   obtained       on    August     17,    1994,   and    consisted     of   (1)    a

conviction for distribution of crack on January 20, 1994, based

upon a controlled purchase made at Holmes’ Peaches Hill Road

residence in St. Helena; (2) a conviction for distribution of

crack on March 15, 1994, based upon a controlled purchase made

at the Peaches Hill Road residence; and (3) a conviction for

possession of cocaine with intent to distribute on March 19,

1994, when Beaufort County officers executed a search warrant at

Holmes’   Peaches      Hill     Road     residence     and   seized   cocaine      and

crack.    Holmes was sentenced to 12 years’ imprisonment for the

three convictions, suspended upon serving 6 years’ imprisonment

and 5 years’ probation.             He was paroled on October 16, 1996, and

granted early termination of his probation on January 11, 1999.

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The remaining two felony drug convictions were obtained on March

11, 2002, and consisted of (1) a conviction for possession of

crack cocaine on September 29, 2000, arising out of a search

warrant executed at Holmes’ residence at 527 Seaside Road, for

which he was sentenced to two years’ imprisonment, and (2) a

conviction    for    possession        with    intent     to    distribute       crack

cocaine on April 16, 2001, arising out of the traffic stop for

which he was sentenced to six years’ imprisonment.

       Holmes contends that the district court erred in counting

the 1994 felony convictions as separate offenses for purposes of

§    841(b)(1)(A), and in relying upon any of the five convictions

as     predicate    offenses       because     they      occurred       during    the

conspiracy period and were intrinsic to it.                    We disagree.

       “[F]or purposes of 21 U.S.C. § 841(b) . . . , the term

‘prior convictions’ refers to ‘separate criminal episodes, not

separate    convictions     arising      out    of   a   single     transaction.’”

United    States    v.   Ford,    88   F.3d    1350,     1365    (4th   Cir.     1996)

(quoting United States v. Blackwood, 913 F.2d 139, 145-46 (4th

Cir.    1990)).      When   evaluating        whether    convictions      are    from

separate    and    distinct      criminal     episodes,    we     consider,      among

other things, whether the time between the crimes underlying the

convictions allowed the defendant sufficient time “to make a

conscious and knowing decision to engage in another drug sale.”

United States v. Letterlough, 63 F.3d 332, 337 (4th Cir. 1995)

                                         21
(holding that sales of crack occurring nearly two hours apart

arose out of “separate and distinct criminal episodes”).

       Here, the district court did not err in counting the three

1994     convictions             as     separate          offenses.           Holmes’      first      two

convictions         for          distribution            of    crack    arose       from     incidents

occurring nearly two months apart.                               The third conviction arose

from    the    execution              of     a    search      warrant       four    days     after   the

second controlled purchase was made.                                  Clearly, the convictions

arose    out       of       separate         and    distinct          criminal       episodes,       even

though they may all have occurred “pursuant to a master plan to

sell crack cocaine as a business venture.”                                  Id.

       The     fact         that       the       prior    felony       drug       offenses    occurred

during the period of the conspiracy for which he was convicted

also does not entitle Holmes to relief.                                     “When a defendant is

convicted      of       a    drug       conspiracy            under   21    U.S.C.     § 846,       prior

felony drug convictions that fall within the conspiracy period

may     be    used          to     enhance         the        defendant’s         sentence     if     the

conspiracy continued after his earlier convictions were final.”

Smith,       451    F.3d         at    224-25.           “[B]ecause         the    ‘purpose     of    the

mandatory minimum enhancement is to target recidivism, it is

more appropriate to focus on the degree of criminal activity

that occurs after the defendant’s conviction for drug-related

activity       is    final            rather      than        when    the    conspiracy       began.’”

United States v. Howard, 115 F.3d 1151, 1158 (4th Cir. 1997)

                                                         22
(quoting United States v. Hansley, 54 F.3d 709, 717 (11th Cir.

1995)).

     Here,      the    government    presented        substantial   evidence        that

Holmes continued to engage in the conspiracy well after his 1994

convictions became final, most notably, evidence of all of the

drug distribution activities he engaged in after he was paroled

in 1996 including, but not limited to, the conduct that served

as the basis for the two 2002 convictions.                       Holmes’ continued

participation in the conspiracy after his prior drug convictions

became    final     “is   precisely    the     type    of   recidivism    to       which

section 841 is addressed.”           Howard, 115 F.3d at 1158.

                                         B.

     Holmes also contends that his counsel was ineffective in

failing to object to the use of his prior felony convictions to

impose    the     enhanced    sentence        under     §§ 841(b)(1)(A)      &      851.

However, claims of ineffective assistance of counsel must be

brought   in    a     collateral    proceeding    under     28    U.S.C.A.     §    2255

(West Supp. 2010) unless it conclusively appears from the face

of the record that his counsel was ineffective.                        See United

States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).                              In

light of our resolution of the issue above, Holmes has clearly

failed to make that showing here.




                                         23
                                              C.

        Holmes’ final contention is that the district court plainly

erred     in   failing       to    apply      the        sentencing     guidelines      and

sentencing factors under 18 U.S.C.A. § 3553(a), in accordance

with our decision in United States v. Green, 436 F.3d 449, 456

(4th Cir. 2006), thus requiring a remand for resentencing.

       Based upon the total offense level and criminal history, as

calculated in his presentence report, Holmes’ guideline range

was 360 months to life imprisonment.                        However, because he had

two prior felony drug convictions, Holmes’ statutory mandatory

minimum    sentence        was    life   imprisonment         under     § 841(b)(1)(A),

which     became     his     guideline        sentence.          At     the     sentencing

proceeding, the district court recognized that the guidelines

range    was   360    months       to    life      and    that   the    guidelines      and

§ 3553(a) factors would have given the court some discretion in

sentencing.        However, the statutory, mandatory minimum sentence

provision based upon the prior felony drug offenses removed any

such     discretion,        rendering      it       unnecessary        to     specifically

address    Holmes’     objections        to     the      presentence    report     or   the

§ 3553     factors.         Instead,       the      district     court        adopted   the

presentence report without change and correctly determined that

the mandatory minimum sentence of life imprisonment applied.

       Although the Supreme Court’s decision in United States v.

Booker, 543 U.S. 220 (2005), made the guidelines advisory, it

                                              24
did    not   alter    the    mandatory      nature   of    statutorily     required

minimum sentences.          See Green, 436 F.3d at 455-56; United States

v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005).                     “Except upon

motion of the Government on the basis of substantial assistance,

a     district     court    still    may    not   depart    below   a    statutory

minimum.”        Robinson, 404 F.3d at 862.          Accordingly, we hold that

the    district     court    did    not    plainly   err   in   imposing   Holmes’

sentence of life imprisonment, and Holmes is not entitled to

resentencing.



                                           IV.

       For the foregoing reasons, we affirm Holmes’ convictions

and sentence.

                                                                           AFFIRMED




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