                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 09-13854                ELEVENTH CIRCUIT
                                                           JANUARY 25, 2010
                         Non-Argument Calendar
                                                              JOHN LEY
                       ________________________
                                                            ACTING CLERK

                     D. C. Docket No. 06-00026-CR-6

UNITED STATES OF AMERICA,


                                                           Plaintiff-Appellee,

                                  versus

HOMER HOLLOWAY,

                                                        Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                     _________________________

                            (January 25, 2010)

Before DUBINA, Chief Judge, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
      Appellant Homer Holloway challenges his 156-month sentence for

conspiracy to distribute, and to possess with intent to distribute, a quantity of

crack and cocaine, in violation of 21 U.S.C. § 846. Holloway raises three

arguments on appeal: (1) the district court erred in calculating his criminal history

category, (2) the district court erred by failing to grant Holloway a downward

adjustment based on his minor role in the offense, and (3) the district court

violated the plea agreement and his Sixth Amendment rights by accepting the

probation officer’s calculation of his base offense level based on a quantity of 15

to 50 kilograms of cocaine.

                                          I.

      Holloway argues that the district court erred in ruling that his prior burglary

offenses are not “related offenses” under U.S.S.G. § 4A1.2(a)(2) for purposes of

calculating his criminal history. Holloway contends that his prior concurrent

sentences for burglary convictions in separate counties were part of a “single

common scheme or plan” because they occurred within a short span of weeks in a

small geographic area and involved the same core group of accomplices and the

same type of victim, thus satisfying some of the factors identified in U.S.S.G. §

1B1.3 cmt. n.9(a). Holloway notes that the only reason the two sets of crimes




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were not formally consolidated for trial or sentencing was due to Georgia’s

jurisdictional laws.

       We review a district court’s determination of whether prior convictions are

related for purposes of U.S.S.G. § 4A1.2 for clear error. United States v.

Hernandez-Martinez, 382 F.3d 1304, 1306 (11th Cir. 2004). “[W]e will not find

clear error unless our review of the record leaves us with the definite and firm

conviction that a mistake has been committed.” United States v. White, 335 F.3d

1314, 1319 (11th Cir. 2003) (internal quotation marks omitted).

       In calculating a defendant’s criminal history score, prior sentences imposed

in unrelated cases are counted separately, while prior sentences imposed in related

cases are treated as one sentence. U.S.S.G. § 4A1.2(a)(2). Pursuant to the

November 1, 2005 edition of the United States Sentencing Guidelines Manual,

which was in effect at the time of Holloway’s offense, if the prior sentences are

not separated by an intervening arrest, they are considered related if they resulted

from offenses that (A) occurred on the same occasion, (B) were part of a single

common scheme or plan, or (C) were consolidated for trial or sentencing.1

U.S.S.G. § 4A1.2 cmt. n.3 (2005).


       1
         The Sentencing Commission abandoned the three-factor relatedness test in the
November 1, 2007 edition of the Guidelines Manual, but the parties have all agreed that the 2005
edition should apply due to ex post facto concerns. See U.S.S.G. § 4A1.2(a)(2) (2007).

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      We conclude that the district court did not clearly err in determining that the

offenses are unrelated. The evidence supports the district court’s conclusion that

the two sets of offenses were not committed on the same occasion and were not

part of the same common scheme or plan as they were committed in different

counties and involved different victims and different accomplices.

                                         II.

      Holloway argues that the district court erred in failing to consider him a

“minor participant,” thereby denying a downward adjustment based on his minor

role in the offense. Holloway argues that the presentence investigation report

(PSI) clearly showed that his role in the drug distribution organization was

significantly less than the role of codefendant Stephanie Collins, and he was

therefore entitled to a minor role reduction.

      A district court’s determination of whether a defendant qualifies for a minor

role adjustment under the guidelines is a finding of fact that we review only for

clear error. United States v. Rodriguez De Varon, 175 F.3d 930, 934 (11th Cir.

1999) (en banc). The proponent of the downward adjustment bears the burden of

establishing his minor role in the offense by a preponderance of the evidence. Id.

at 939. Pursuant to U.S.S.G. § 3B1.2, a defendant may receive an adjustment for

his mitigating role in the offense if he “plays a part in committing the offense that

                                          4
makes him substantially less culpable than the average participant.” U.S.S.G. §

3B1.2 cmt. n.3(A). A two-level, minor role reduction under § 3B1.2(b) applies to

a defendant “who is less culpable than most other participants, but whose role

could not be described as minimal.” U.S.S.G. § 3B1.2, comment. (n.5).

      Under De Varon, the district court conducts a two-part analysis of a

defendant’s conduct to determine whether the defendant is entitled to a minor role

reduction. 175 F.3d at 940-45. First, the court must measure the defendant’s role

against the relevant conduct for which he was held accountable at sentencing. Id.

at 945. Second, the district court may compare “the defendant’s role against the

other participants, to the extent that they are discernable, in that relevant conduct.”

Id. “[A] defendant is not automatically entitled to a minor role adjustment merely

because [he] was somewhat less culpable than the other discernable participants.”

Id. at 944. To apply the adjustment under this prong, the district court must find

that “the defendant was less culpable than most other participants in [his] relevant

conduct.” Id. (emphasis in original).

      The district court did not clearly err in determining that Holloway was an

average participant and, therefore, is not entitled to a minor role reduction. The

fact that Holloway believes he is less culpable than one co-conspirator, Collins, is

not persuasive on this point as the conspiracy included more than thirty people.

                                           5
As a whole the evidence supports the district court’s conclusion that Holloway

was not entitled to a minor role adjustment.

                                           III.

      Holloway argues for the first time on appeal that (1) the district court

violated his Sixth Amendment jury trial rights by accepting the PSI’s calculation

of his base offense level based on a quantity of 15 to 50 kilograms of cocaine, and

(2) the district court’s reliance on the PSI’s calculation of the amount of cocaine

he was responsible for violated the provision of his plea agreement stating that no

information provided by Holloway would be used against him.

      “We review sentencing arguments raised for the first time on appeal for

plain error.” United States v. Bonilla, 579 F.3d 1233, 1238 (11th Cir. 2009). To

establish plain error, an appellant must show there is (1) error, (2) that is plain, and

(3) that prejudicially affected his substantial rights. Id. If the appellant shows that

all three conditions are met, “we may exercise our discretion to recognize a

forfeited error, but only if the error seriously affects the fairness, integrity or

public reputation of judicial proceedings.” United States v. Moriarty, 429 F.3d

1012, 1019 (11th Cir. 2005) (internal quotation marks and alteration omitted).

      In Apprendi, the Supreme Court held that, except for the fact of prior

convictions, the government must prove to a jury beyond a reasonable doubt any

                                            6
fact that increases the statutory maximum sentence. Apprendi v. New Jersey, 530

U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435 (2000). “The

‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may

impose solely on the basis of the facts reflected in the jury verdict or admitted by

the defendant.” Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537,

159 L. Ed. 2d 403 (2004) (emphasis in original). In United States v. Smith, we

held that when a sentencing court understood that “it was operating under an

advisory scheme, its fact-finding did not implicate the Sixth Amendment.” 480

F.3d 1277, 1281 (11th Cir. 2007). “In cases where a defendant’s actual sentence

falls within the range prescribed by the statute for the crime of conviction[,] there

is no Apprendi constitutional error.” United States v. Underwood, 446 F.3d 1340,

1344 (11th Cir. 2006) (internal quotation marks omitted).

      The district court did not violate Holloway’s plea agreement or his Sixth

Amendment rights under Apprendi, and Holloway has failed to show that the

district court committed plain error in sentencing him. Holloway’s sentence of

156 months’ imprisonment falls within the imprisonment range prescribed by the

statute. See 21 U.S.C. § 841(b)(1)(C). The probation officer and the district court

based its calculation of the amount of cocaine attributable to Holloway on proffer

statements and testimony of several of Holloway’s co-conspirators, not on

                                          7
information provided by Holloway as part of his plea agreement. Therefore, the

district court did not commit plain error in considering such evidence.

      AFFIRMED.




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