                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-1353
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                Clinton Holman, Sr.

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                for the Eastern District of Arkansas - Little Rock
                                 ____________

                          Submitted: September 23, 2013
                             Filed: November 7, 2013
                                  [Unpublished]
                                  ____________

Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.
                          ____________

PER CURIAM.

       Clinton Holman, Sr. was found to have marijuana and heroin while imprisoned
at the Federal Correctional Complex in Forest City, AR (FCC Forest City). He pled
guilty to possessing a prohibited object in prison, in violation of 18 U.S.C.
§ 1791(a)(2), and the district court1 sentenced him to the statutory maximum of 60
months imprisonment. Holman appeals, arguing that the district court committed a
procedural error in sentencing. We affirm.

        On October 4, 2011 officers at FCC Forest City conducted a search of inmate
Clinton Holman's cell. They found what was later confirmed to be 0.1694 grams of
heroin in a small bag inside one of his shirts. Holman was then questioned. After
initially denying he had any contraband on him, he handed the officers a bag
containing 8.9 grams of marijuana. In later correspondence with the U.S. Attorney's
office Holman also admitted that he had sold marijuana and used heroin in the prison.
A federal grand jury indicted Holman on two counts of possessing a prohibited object
in prison in violation of 18 U.S.C. § 1791(a)(2), one count for each drug.

       The district court held a combined plea and sentencing hearing on February 8,
2013. Before accepting the plea the court explained that it was required both to give
a sentence within the statutory range and to use the guidelines as a starting point in
determining Holman's sentence, but that it was not required to sentence Holman
within his guideline range. The court also stated that it generally gives a maximum
sentence for possession of contraband in prison. Even though it takes the § 3553(a)
"factors into consideration" in such cases, it considered "prison contraband cases [to
be] pretty serious." Holman pled guilty to the marijuana offense in exchange for the
dismissal of the heroin charge.

      The district court calculated a total base offense level for Holman of 11 and a
criminal history category VI. The resulting guideline range was 27 to 33 months
imprisonment. The defense asked for a sentence within the guideline range because
Holman "is older" and had "accept[ed] responsibility early on," and such a sentence


      1
       The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas.

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would be sufficient to deter possession of illegal drugs in prison. The government
highlighted that Holman had both used heroin and sold marijuana in prison and had
engaged in conduct that "officials at FCC Forest City are working hard to deter and
clean up." The government requested a "reasonable sentence to help meet those
objectives." Holman himself gave a statement saying "if I knew they had been
charging, I wouldn't even have been messing around."

       The district court sentenced Holman to 60 months consecutive to the sentence
he is already serving, with no fine or increase in Holman's supervised release term.
The court mentioned several of the factors it had considered before imposing
sentence, including the need to sentence imprisoned defendants "fairly harshly" since
they are already "being punished for committing a crime, but still committing a crime,
which would indicate maybe it's not getting through." After observing that "if there
are no consequences to committing a crime, there can never be deterrence," the court
pointed out that Holman's statement that he would not have committed the crime if
he had known he would be charged "almost supports [the court's] point the word
needs to get out." Holman now appeals.

       Holman argues that the district court committed a procedural error at
sentencing by following a predetermined policy of using the statutory maximum as
the baseline rather than the guideline range. Although we generally review
procedural errors in sentencing for an abuse of discretion, Gall v. United States, 552
U.S. 38, 51 (2007), Holman did not object at sentencing and so our review here is for
plain error, United States v. Rice, 699 F.3d 1043, 1049 (8th Cir. 2012). Holman thus
has the burden to prove there was an error that was plain and that affected his
substantial rights. Id. We will only exercise our discretion to correct such an error
if it would seriously affect the fairness, integrity, or public reputation of judicial
proceedings. Id.




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        A district court should use the guideline range as "the starting point and the
initial benchmark" for sentencing. Gall, 552 U.S. at 49. It should then receive
argument from the parties on an appropriate sentence before weighing the § 3553(a)
factors. Id. at 49–50. If deciding that a sentence outside the guidelines is warranted,
the court must provide an explanation sufficient to justify the degree of variance. Id.
at 50.

       The district court followed this procedure here. It calculated the proper
guideline range, and contrary to Holman's claims, the court twice stated that this
range was the required starting point for its sentencing decision. The court heard
argument from the parties and fully explained the sentence imposed. It properly
considered the § 3553(a) factors, including the nature and circumstances of the
offense, the need for adequate deterrence of criminal conduct, and the need to provide
just punishment for the offense. See 18 U.S.C. § 3553(a). While the district court
emphasized the need to deter others from possessing contraband while in prison, our
court has when appropriate "upheld severe sentences imposed in part for reasons
unrelated to the personal characteristics of the particular defendant." Ferguson v.
United States, 623 F.3d 627, 632 (8th Cir. 2010) (citing United States v. Foy, 617
F.3d 1029, 1037 (8th Cir. 2010)).

        Holman cites our decision in Woosley v. United States, 478 F.2d 139, 143–44
(8th Cir. 1973) (en banc), in arguing that the district court took a "mechanical
approach to sentencing" prison drug offenses by always giving the statutory
maximum sentence. He contends that the district court's comments that its "policy"
is to sentence defendants who commit crime while in prison "fairly harshly" and that
it "generally" gives the maximum sentence reveal an impermissible presumption that
the guideline range is unreasonable for this particular type of crime and that the
district court did not consider the § 3553(a) factors. He also cites two other cases in
which this same judge sentenced defendants to 60 months imprisonment for similar



                                         -4-
offenses. See Ferguson, 623 F.3d at 629; United States v. Nelson, No. 4:08-cr-242-
BSM (E.D. Ark. Aug. 4, 2010).

       The mechanical sentencing rule announced in Woosley is a "very narrow
doctrine," United States v. Hernandez-Reyes, 114 F.3d 800, 802 (8th Cir. 1997),
announced before the current guideline system was in place. In Woosley, we
determined that a district court's otherwise unreviewable sentencing decision would
require review if a defendant were sentenced in accordance with a predetermined
policy and "without considering his individual character or his circumstances." Id.
Whether the Woosley rule applies to a particular sentence requires examination of the
entire sentencing process and the comments of the district court "in their full context."
Island v. United States, 946 F.2d 1335, 1338 (8th Cir. 1991). On such a charge we
inquire "whether there is any legitimate explanation for the severity of the sentence."
Id. Such explanations may include the type and nature of the offense and whether
charges were dropped as part of a plea bargain. Id.

      Our review of the record leads us to conclude that the district court did not
mechanically sentence Holman to the statutory maximum. The district court
considered Holman's individual circumstances, and it exercised its discretion not to
add any supervised release or fines to Holman's sentence. Holman admitted to facts
that bear on the nature and circumstances of his offense, such as possessing and
hiding both drugs, as well as selling marijuana and using heroin while in prison. He
also had a heroin possession charge dropped in exchange for his guilty plea. See
Island, 946 F.2d at 1338. We conclude that the district court did not commit a
procedural error in imposing a 60 month sentence in this case.

      The judgment of the district court is affirmed.
                     ______________________________




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