                                                                      NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                        No. 14-3031
                                       ____________

                             UNITED STATES OF AMERICA

                                              v.

                                  RAYMOND HOLMES,
                              also known as Anthony Holmes,

                                     Raymond Holmes,
                                                              Appellant
                                       ____________

                      On Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                               (D.C. No. 2-12-cr-00326-002)
                        District Judge: Honorable Paul S. Diamond
                                      ____________

                        Submitted Under Third Circuit LAR 34.1(a)
                                    January 12, 2015

       Before: McKEE, Chief Judge, HARDIMAN and SCIRICA, Circuit Judges.

                                  (Filed: January 29, 2015)

                                       ____________

                                         OPINION*
                                       ____________


       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
HARDIMAN, Circuit Judge.

       Raymond Holmes appeals his judgment of sentence after pleading guilty to four

crimes. We will affirm.

                                                I

       From at least 2008 to 2012, Holmes worked with co-conspirators to use third

parties’ identification information to file fraudulent tax returns seeking undeserved refunds.

Holmes provided identification information to one co-conspirator, who filed the returns and

paid Holmes a fee when those returns were received. Holmes also maintained several bank

accounts into which the funds were deposited. In June 2013, he was indicted and charged

with eight counts related to the scheme. Two months later, he pleaded guilty to four counts:

(1) conspiracy to defraud the government by making false claims, in violation of 18 U.S.C.

§ 286; (2) making false claims, in violation of 18 U.S.C. § 287; (3) theft of government

property, in violation of 18 U.S.C. § 641; and (4) aggravated identity theft, in violation of

18 U.S.C. § 1028A(a)(1) and (c)(1).

       Prior to sentencing, the Probation Office determined that Holmes’s base offense

level under United States Sentencing Guidelines (USSG) §§ 2T1.1 and 2T4.1 was 20. After

reducing that base level by three for acceptance of responsibility, it arrived at a total offense

level of 17. The Probation Office also determined that Holmes had 10 prior convictions.

Four of those convictions are relevant to this appeal: (1) theft by deception, for which he

was arrested in January 1996, sentenced to probation in February 1998, and sentenced to

                                               2
imprisonment after his probation was revoked on January 31, 2003; (2) conspiracy to

distribute cocaine, for which he was arrested in January 1998 and sentenced to

imprisonment on January 31, 2003; (3) theft by deception, for which he was sentenced to

five years’ imprisonment in December 2006 and paroled in December 2007; and (4)

forgery, for which he was sentenced to time served to 23 months’ imprisonment in

November 2004 but was immediately paroled with two years of probation. The Probation

Office assigned Holmes three criminal history points for each of those four convictions, one

point for a conviction not at issue on appeal, and two points because Holmes committed the

offenses in this case while on parole for the second theft by deception conviction. His total

criminal history score therefore came to 15, placing him in criminal history category VI.

Based on his offense level, his criminal history category, and an additional 24 consecutive

months for the aggravated identity theft count under 18 U.S.C. § 1028A, Holmes’s

Guidelines range was 75–87 months’ imprisonment.

       Holmes objected to his criminal history calculation on several grounds, two of which

are relevant on appeal. First, he argued that, under USSG § 4A1.2(a)(2), the Probation

Office should not have assigned him six points for his first theft by deception conviction

and his cocaine conspiracy conviction because he was sentenced on the same day for those

counts. Second, he argued that he was not on parole when he committed the offenses in this

case and thus should not have received two points for that reason. The District Court

rejected Holmes’s arguments and sentenced him to 87 months in prison, the top of the

                                              3
Guidelines range. After sentencing, Holmes filed a motion under Federal Rule of Criminal

Procedure 35(a) seeking correction of his sentence, contending that the Court had erred by

assigning three criminal history points for his forgery conviction because his sentence was

“suspended” under USSG § 4A1.2(b)(2). The District Court denied his motion, and Holmes

filed this appeal.

                                              II1

       Holmes first contends that he should not have received three points for the cocaine

conspiracy and an additional three points for the first theft by deception offense because he

was sentenced for both on the same day. This is plainly incorrect based on the text of USSG

§ 4A1.2(a)(2):

       Prior sentences always are counted separately if the sentences were imposed
       for offenses that were separated by an intervening arrest (i.e., the defendant
       is arrested for the first offense prior to committing the second offense). If
       there is no intervening arrest, prior sentences are counted separately unless . .
       . (B) the sentences were imposed on the same day.

(emphasis added).

       Regardless of whether Holmes was sentenced for both convictions on the same day,


       1
         We have jurisdiction over this appeal under 28 U.S.C. § 1291, and we review
Holmes’s sentence pursuant to 18 U.S.C. § 3742(a). “We review the District Court’s
factual findings relevant to the Guidelines for clear error and exercise plenary review over
the District Court’s interpretation of the Guidelines.” United States v. West, 643 F.3d 102,
105 (3d Cir. 2011) (citations omitted). An argument not raised at sentencing is reviewed for
plain error. United States v. Dragon, 471 F.3d 501, 505 (3d Cir. 2006).



                                               4
the two offenses were separated by an intervening arrest. Holmes was arrested for the first

theft by deception offense in January 1996 and for the cocaine conspiracy in January 1998.

Under § 4A1.2(a)(2), sentences for offenses separated by an intervening arrest are always

counted separately in calculating criminal history. Thus, the District Court did not err in this

regard.

       Holmes’s argument that he should not have received two additional points under

USSG § 4A1.1(d) for committing the subject offenses while on parole is similarly weak. He

was sentenced to five years’ imprisonment for the second theft-by-deception conviction in

December 2006 and was paroled in December 2007. He affirmed at his change-of-plea

hearing that he entered the tax fraud conspiracy “no later than 2008.” App. 111, 114. At his

sentencing hearing, the Probation Office informed the Court that Holmes’s parole lasted for

the remainder of his five-year sentence of imprisonment, or until late 2011. And although

Holmes told the Court that his parole ended in 2008, he offered no evidence to corroborate

that assertion. Because Holmes offered no evidence that his parole ended earlier than 2011,

the District Court’s factual finding that he joined the conspiracy while on parole was not

clear error, and it appropriately assigned him an additional two criminal history points.

       Holmes’s third argument—that his immediate parole following his forgery

conviction meant that his sentence was actually suspended under USSG § 4A1.2(b)(2)—is




                                               5
subject to plain error review because he failed to raise it at the sentencing hearing.2 Even if

it were not, though, it would fail because it does not meet the less onerous requirement of

showing a “clear error.” Fed. R. Crim. P. 35(a). His argument boils down to this: the term

“suspended sentence” was not in use in Pennsylvania in 2004 (when he was sentenced for

his forgery conviction). Immediate parole is the functional equivalent of a suspended

sentence. Thus, he contends, we should hold that his sentence was actually suspended,

despite no court ever so declaring. The problem for Holmes is that he can point to no

binding precedent that supports his argument; the best he can muster is a convoluted

weaving of tangentially related Pennsylvania Superior Court authority. And his reliance on

those cases falls far short of showing a clear error in the District Court’s decision.

                                               III

       Because the District Court did not err in its calculation of Holmes’s criminal history

under the Guidelines, we will affirm its judgment of sentence.




       2
         Holmes baldly states in his brief that this issue was preserved at the sentencing
hearing. However, he cites only to a point in the transcript of that hearing that does not
relate to this argument in any way. And our independent review of the record leads us to
conclude that Holmes first raised this argument in his Rule 35 motion, which he submitted
after the sentencing hearing.
                                               6
