           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           July 17, 2008
                                     No. 07-11128
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

SHELVIN LYNN HOLMAN

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                           USDC No. 3:06-CR-370-ALL


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Shelvin Lynn Holman appeals his sentence following his convictions for
distribution of cocaine; using, carrying, and brandishing a firearm during and
in relation to a drug trafficking crime; and being a felon in possession of a
firearm. For the brandishing of a firearm conviction, Holman was sentenced in
accordance with 18 U.S.C. § 3559(c)(1) to a mandatory life sentence. Holman
argues that § 3559(c)(1) is unconstitutional because it violates the Eighth
Amendment, the separation of powers doctrine, and the Due Process Clause.


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 07-11128

The Government has filed a motion for summary affirmance and alternatively
requested an extension of time in which to file a brief. The Government
contends that Holman’s arguments are foreclosed by United States v. Martin,
431 F.3d 846 (5th Cir. 2005).
      This court reviews a district court’s interpretation and application of a
sentence enhancement provision de novo. United States v. Montgomery, 402
F.3d 482, 485 (5th Cir. 2005). The Government is correct that Holman’s Eight
Amendment argument is foreclosed by Martin. In Martin, 431 F.3d at 853, the
court determined that § 3559(c) does not violate the Eighth Amendment and is
constitutional. In making its decision in Martin, the court relied on United
States v. Rasco, 123 F.3d 222 (5th Cir. 1997). In Rasco, 123 F.3d at 226-27, the
court determined that § 3559(c) does not violate the separation of powers
doctrine. Thus, Holman’s separation of powers argument is also foreclosed. See
id. However, neither Martin nor Rasco addressed Holman’s particular due
process arguments. Nevertheless, Holman’s arguments are without merit.
      Holman argues that § 3559(c)(1) violates the Due Process Clause because
it restricts a sentencing judge’s discretion and prevents the judge from tailoring
an individualized sentence based upon a defendant’s particular circumstances.
Holman also argues that the statute’s mandatory life sentence violates the Due
Process Clause because it effectively denies a defendant the right to be present
at sentencing and the right to offer mitigation evidence by way of allocution.
These due process arguments raised by Holman are not the same arguments he
raised before the district court. Thus, they are reviewed only for plain error. See
United States v. Jones, 489 F.3d 679, 681 (5th Cir. 2007). Under the plain error
standard, Holman must show that (1) there was a legal error, (2) the error was
plain, (3) the error affected his substantial rights, and (4) the error seriously
affected the fairness, integrity or public reputation of judicial proceedings. Id.
      The Constitution does not guarantee individualized sentencing nor provide
for the presentation of mitigation evidence in noncapital cases. See Harmelin v.

                                        2
                                 No. 07-11128

Michigan, 501 U.S. 957, 995 (1991). Thus, there is no constitutional impediment
to the district court imposing a mandatory sentence without considering
Holman’s particular circumstances. See, e.g., United States v. White, 869 F.2d
822, 825 (5th Cir. 1989). Accordingly, Holman has failed to show any error,
plain or otherwise. See Jones, 489 F.3d at 681.
      In light of the foregoing, the judgment of the district court is AFFIRMED.
The Government’s motion for summary affirmance is GRANTED.                  The
Government’s alternative motion for an extension of time is DENIED as moot.




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