                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 08a0031n.06
                             Filed: January 9, 2008

                                           No. 05-6584

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                 ON APPEAL FROM THE
                                       )                 UNITED STATES DISTRICT
v.                                     )                 COURT FOR THE EASTERN
                                       )                 DISTRICT OF TENNESSEE
VICTOR L. HOLLMAN,                     )
                                       )                        OPINION
      Defendant-Appellant.             )
_______________________________________)


Before: BATCHELDER and MOORE, Circuit Judges; BUNNING,* District Judge.

        KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Victor L. Hollman

(“Hollman”) pleaded guilty to one count of conspiracy to commit the offenses of distribution and

possession with intent to distribute five hundred grams or more of a mixture and substance

containing a detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1). The district court

sentenced Hollman to 204 months in prison. On appeal, Hollman argues that his sentence was

procedurally and substantively unreasonable. We disagree, and AFFIRM the sentence pronounced

by the district court.




        *
       The Honorable David Bunning, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
                                        I. BACKGROUND

A. Factual Background

       Hollman and the government agreed on the factual basis for the offense conduct. Between

April 21, 1999 and May 12, 1999, a confidential informant purchased 7.8 grams of cocaine from

Hollman; law enforcement officers recorded the transactions and conducted surveillance of them.

Hollman purchased cocaine from one particular source for approximately three to four months in

1999. Hollman used cocaine daily before his arrest and had been using the drug periodically since

the early 1990s.

       The district court ordered a forensic evaluation to determine Hollman’s competency to stand

trial; the report, submitted on June 4, 2004, concluded that Hollman was “malingering” and gave a

provisional diagnosis of “antisocial personality disorder.” Joint Appendix (“J.A.”) at 163 (PSR at

¶66). The report stated: “Mr. Hollman continues to fabricate psychiatric symptoms and display

disruptive behavior. It is likely that if he is convinced of the efficacy in these efforts to obtain the

desired secondary gain, he will persist.” Id. After Hollman was labeled a malingerer, the

government did not ask Hollman to testify against his co-defendants at their trials.

       While in custody in Greene County Jail, Hollman, posing as a woman, exchanged notes with

another inmate. During the course of their correspondence, the other inmate wrote a detailed

admission regarding a heinous murder. After Hollman alerted authorities, they discovered that the

inmate’s admission implicated two other individuals who had previously not been charged.

B. Procedural Background

       Hollman pleaded guilty to Count Two of the Second Superseding Indictment: conspiracy

to commit the offenses of distribution and possession with intent to distribute five hundred grams


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or more of a mixture and substance containing a detectable amount of cocaine, in violation of 21

U.S.C. § 841(a)(1). Hollman qualified as a career offender, placing him in criminal history category

VI. His final Guidelines range, as calculated in the PSR, was 262 to 327 months. Based on the

substantial assistance he provided to the government regarding the state murder, the government

filed a motion for downward departure under U.S. SENTENCING GUIDELINES MANUAL § 5K1.1. The

government recommended a 200-216-month sentence, whereas Hollman argued for a 132-month

sentence, twelve months less than the leader of the conspiracy received.

       The district court granted the government’s downward-departure motion, and chose a three-

level reduction from the Guidelines offense level, resulting in an advisory Guidelines range of 188

to 235 months. The district court sentenced Hollman to 204 months in prison. Judgment was

entered September 27, 2005, and Hollman timely appealed.

                 II. REASONABLENESS OF THE SENTENCE IMPOSED
                            BY THE DISTRICT COURT

A. Standard of Review

       Under Rita v. United States, 551 U.S. --, 127 S. Ct. 2456 (2007), and Gall v. United States,

552 U.S. –, 128 S. Ct. 586 (2007), we review a district court’s sentencing determination for

reasonableness under a deferential abuse-of-discretion standard. Rita, 127 S. Ct. at 2459; Gall,128

S. Ct. at 591, 597.

B. Reasonableness of the Sentence

       Hollman argues that his sentence is procedurally and substantively unreasonable. Hollman

relies upon United States v. Vonner, 452 F.3d 560 (6th Cir. 2006), vacated for rehearing en banc,

Oct. 12, 2006, to argue that the district court did not use language at the sentencing that would allow

a reviewing court to understand whether the district court had considered all of the arguments before

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it and how those arguments affected its determination of Hollman’s sentence. Appellant Br. at 14-

19. Also, Hollman argues that the district court failed to consider several of the § 3553(a) factors

and thus applied a sentence “greater than necessary.” Appellant Br. at 19. Hollman argues that his

history of drug addiction, bipolar disorder, manic depression, difficulty reading, and low level of

education should have been considered by the district court. Appellant Br. at 22-23. Finally,

Hollman argues that the district court should have given him a greater downward departure based

on his substantial assistance to the government. Appellant Br. at 23.

        Under Gall, we must ensure that “the district court committed no significant procedural error,

such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines

as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence–including an explanation for

any deviation from the Guidelines range.” Gall, 128 S. Ct. at 597. In addition, after completing this

procedural review, we must ensure that the sentence is substantively reasonable based on “the totality

of the circumstances.” Id.

        Based on the record, we hold that the district court imposed a procedurally and substantively

reasonable sentence in this case. Hollman does not argue, nor does the record indicate, that the

district court incorrectly calculated his Guidelines range; also, there is no indication from the record

that the district court treated the Guidelines as mandatory. During a lengthy sentencing hearing, the

district court considered the pertinent § 3553(a) factors before imposing sentence and did not give

unreasonable weight to any particular factor. The district court addressed Hollman’s history and

characteristics and his drug addiction. Although the district court did not mention Hollman’s bipolar

disorder and manic depression specifically during the sentencing, Hollman did not raise these issues


                                                   4
in his sentencing memorandum or at sentencing; in addition, during the sentencing, the district court

noted the results of the mental evaluation it ordered for Hollman. Also, although the district court

did not address Hollman’s low level of education explicitly during the sentencing, this factor was

not raised by his attorney in the sentencing memorandum or at sentencing. In addition, the district

court explicitly considered, during the sentencing, how much credit should be given to Hollman for

the time that he had already served; the district judge agreed with the government that there would

effectively be no punishment for Hollman’s parole violation (unrelated to the offense at issue at

sentencing) if the judge took into account the thirty-one months Hollman had already served when

calculating the sentence.

       Finally, the district court explained in detail how it arrived at the three-level § 5K1.1

departure based on Hollman’s substantial assistance. Hollman argues that because of the nature of

his substantial assistance to the government, the district court should have granted him a ten-level

reduction instead of the three-level reduction that was awarded. However, after evaluating

Hollman’s argument under our authority to review sentences for reasonableness, we cannot say that

the district judge’s three-level departure was unreasonable given the facts of this particular case.

Therefore, under the circumstances of this case, in light of the structure for review set forth in Gall,

we do not find Hollman’s sentence procedurally or substantively unreasonable.

                                        III. CONCLUSION

       Because Hollman failed to demonstrate that his sentence was procedurally or substantively

unreasonable, we AFFIRM Hollman’s sentence.




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       ALICE M. BATCHELDER, Circuit Judge, concurring. I agree with the lead opinion that

Hollman’s sentence is both procedurally and substantively reasonable, but I write to highlight one

issue. Although the lead opinion does not set forth a standard of review other than abuse of

discretion, I would review for plain error the procedural reasonableness of Hollman’s sentence.

Though the district court provided Hollman with the opportunity to object to any perceived

procedural inadequacy, Hollman failed to do so. See, e.g., United States v. Bailey, 488 F.3d 363,

367-68 (6th Cir. 2007). Moreover, as the lead opinion indicates, Hollman failed to raise arguments

concerning his mental health problems and low level of education either in his sentencing

memorandum or at the sentencing hearing. He should not now be heard to complain about the

district court’s failure to address those arguments. Neither Gall nor Rita undermines our court’s

precedent of applying the plain error standard of review in the circumstances here.




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