                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4916


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

SAMUEL RODNEY HOLMES,

                  Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(1:05-cr-01253-MBS-1)


Submitted:    July 2, 2009                  Decided:   July 30, 2009


Before NIEMEYER, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Russell W. Mace, III, THE MACE FIRM, Myrtle Beach, South
Carolina, for Appellant.      W. Walter Wilkins, United States
Attorney, Robert F. Daley, Jr., Mark C. Moore, Assistant United
States Attorneys, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Samuel    Rodney     Holmes       was           convicted     by   a     jury   of

conspiracy to possess with intent to distribute and distribute

fifty grams or more of cocaine base (crack), 21 U.S.C. § 846

(2006) (Count One), and possession with intent to distribute and

distribution of five grams or more of crack, 21 U.S.C. § 841

(2006)    (Count    Two).         He    received           a    sentence     of     360   months

imprisonment.           Holmes    appeals        his       convictions        and     sentence,

arguing that the district court (1) abused its discretion in

denying    his    pre-trial       motion     for       a       continuance;       (2)     clearly

erred in giving him a two-level increase for possession of a

dangerous       weapon    during       the   offense             and    an   adjustment        for

obstruction of justice based on his perjured trial testimony,

U.S. Sentencing Guidelines Manual §§ 2D1.1(b)(1), 3C1.1 (2007);

and (3) plainly erred in computing his criminal history.                                        We

affirm.

               Holmes sought a continuance a few days before trial,

after a jury had been selected, on the ground that his attorney

required more time to explore proffers from government witnesses

which    had     been    provided      in    discovery            and    a   possible      alibi

defense.       The district court denied a continuance, finding that

several continuances had been granted already, that Holmes had

objected to a prior continuance in October 2006, indicating at

that time that he was ready to go to trial, and that the notice

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of alibi defense filed in January 2007 identified the witnesses

on which Holmes intended to rely.

            At trial, a law enforcement officer, Michael Jones,

and a confidential informant, Shawn Hicks, testified that, on

February 27, 2002, in a controlled transaction, Hicks called

Holmes on his cell phone to ask if he could buy half an ounce of

crack.     Holmes offered to sell Hicks a full ounce, to which

Hicks    agreed.         Jones    testified      that    Holmes    arrived    at    the

location     for    the    sale     driving      a    white   Cadillac,      that    he

recognized Holmes’ voice during the recorded sale, and that he

and another officer followed Holmes’ Cadillac after the sale was

completed,       noted     the     license       plate   number,     and     visually

identified Holmes at a gas station where they pulled in next to

his car.      Keith Butler testified that he observed Holmes cook

seven to nine ounces of powder cocaine into crack once, and saw

him cook four to six ounces of cocaine into crack approximately

seven times.        Butler said he once saw a sawed-off shotgun in

Holmes’ kitchen, where the crack was cooked; Holmes referred to

the shotgun as his “baby.”             Vernon Clay Lawrence testified that

he bought powder cocaine several times in 2001 or 2002.

            In     Holmes’       defense,    his     mother   testified    that     she

bought the car a few days before the controlled buy and gave it

to him several months later.                She said that, on the date of the

controlled buy, the car was parked in her yard, and that it had

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a    different       license      plate    number     on    that    date    than    the    one

observed by the law enforcement officer after the controlled

buy.    Holmes’ girlfriend testified that she lived in Columbia,

South Carolina, at the time and that Holmes was probably with

her in Columbia on the night of the controlled buy.                                    Holmes

himself testified that all the witnesses who testified that he

cooked crack or sold drugs had testified falsely.                             He also said

he     drove        the     white        Cadillac     for     the       first      time        on

February 28, 2002.

               At sentencing, Holmes again maintained his innocence

and objected to all the drug amounts used to compute his offense

level, as well as the firearm enhancement and the obstruction of

justice adjustment recommended in the presentence report.                                      He

testified that he had never owned a gun, that he did not sell

crack    to    Hicks       on   February     27,    2002,    and    that      Hicks,    Keith

Butler,       and    Vernon       Clay    Lawrence     all    gave      false      testimony

against       him.        The   district      court    overruled        his     objections,

determined that the advisory guideline range was 360 months to

life, and sentenced Holmes at the bottom of the range.

               On    appeal,        Holmes     first       challenges       the     district

court’s       rulings      concerning       his     sentence.      We   agree      that    the

district court erred by summarily overruling his objection to

the    obstruction         of   justice      adjustment      without       finding,       by    a

preponderance         of    the     evidence,       that    Holmes’     trial      testimony

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constituted perjury, that is, false testimony about a material

matter, given “with the willful intent to deceive (rather than

as a result of confusion, mistake, or faulty memory).”                                 United

States v. Quinn, 359 F.3d 666, 681 (4th Cir. 2004) (internal

quotation          and     citations        omitted).          However,       without       the

adjustment, Holmes’ guideline range would remain at 360 months

to life.          An offense level of 40, with criminal history category

IV   (or     with       category     III),    yields    a    guideline       range    of    360

months       to        life.     USSG    Ch.     5,    Pt.     A    (Sentencing       Table).

Therefore, we conclude that the error is harmless.                                Williams v.

United States, 503 U.S. 193, 203 (1992) (noting that sentencing

error is subject to harmless error analysis and remand is not

required          if    “the   error    did    not    affect       the   district     court’s

selection of the sentence imposed”);                        see also United States v.

Delgado-Martinez, 564 F.3d 750, 752-53 (5th Cir. 2009); United

States       v.    Smith,      562   F.3d     866,    874    (7th    Cir.    2009);    United

States v. Anderson, 526 F.3d 319, 324 (6th Cir. 2008); United

States v. Smalley, 517 F.3d 208, 212 (3d Cir. 2008); United

States v. Kochekian, 977 F.2d 905 (4th Cir. 1992).

                  We also agree (and the government concedes) that the

district court plainly erred in assigning two criminal history

points under § 4A1.1(b) for Holmes’ 1991 sentence for driving

under    a    suspended        license      where     the    sentence       was   sixty    days

custody or a $300 fine.                 Application Note 4 to § 4A1.2 directs

                                                5
that     a     “sentence         which      specifies          a     fine     or      other

non-incarcerative disposition to a term of imprisonment . . . is

treated as a non-imprisonment sentence.”                     Under United States v.

Olano, 507 U.S. 725, 732-37 (1993), unpreserved error may be

corrected only if error occurred that was plain, that affects

the defendant’s substantial rights, and that, if uncorrected,

would    seriously        affect    the     fairness,        integrity,       or    public

reputation of judicial proceedings.                     Had Holmes not received

these    two      criminal    history       points,     he     would     have      been   in

category III.        However, even if Holmes were in criminal history

category     III    and    his    offense    level      were       reduced   to    40,    his

guideline range would remain 360 months to life.                              Therefore,

Holmes’ substantial rights were not affected by the error, and

we decline to notice it.

             We    are    satisfied       that    the    district       court      did    not

clearly err in making the two-level enhancement for possession

of   a   deadly     weapon       during   the     offense      under     § 2D1.1(b)(1).

United States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001).

(stating standard of review).                    Application Note 3 to § 2D1.1

explains that the enhancement “should be applied if the weapon

was present, unless it is clearly improbable that the weapon was

connected with the offense.”                 Thus, the government “need only

show that the weapon was present during the relevant illegal

drug activity.”          McAllister, 272 F.3d at 234.

                                             6
             Holmes argues that Keith Butler’s testimony that he

saw a sawed-off shotgun in the kitchen of Holmes’ trailer was

insufficient to justify the enhancement because Holmes did not

sell drugs at his home and there was no evidence he had the gun

with   him   for       protection       during     any   of    the       drug   sales     that

occurred away from his residence.                     Thus, he contends that the

government       did    not    show     that   the    gun     was    connected       to    the

offense.     However, because the evidence established that Holmes

possessed    a     firearm     in     the   place     where    he        regularly   cooked

cocaine into crack for Cedric Butler, and there was no evidence

that would support a finding that it was clearly improbable that

the gun was connected to Holmes’ drug activity, we conclude that

the    district        court      did    not       clearly     err       in     making     the

enhancement.

             The       district     court’s        denial     of     a    continuance      is

reviewed for abuse of discretion.                     United States v. Williams,

445 F.3d 724, 738 (4th Cir. 2006).                    The trial court abuses its

discretion when its denial of a motion for continuance is “an

unreasoning and arbitrary insistence upon expeditiousness in the

face of a justifiable reason for delay.”                       Id. at 739 (internal

quotation omitted).

             Holmes maintains that the district court’s denial of

his last-minute request for a continuance deprived him and his

attorney of adequate time to examine the discovery and prepare a

                                               7
defense.       Holmes claims that he was unable to introduce into

evidence    documents        relating    to    his     mother’s   purchase      of   the

white     Cadillac      he   was    alleged      to    have     driven   during      the

controlled buy on February 27, 2002. 1                 Holmes maintains that the

documentation would have supported his mother’s testimony that

her Cadillac had a different license number on that date than

the   number     observed     by   Agent      Jones.      The   government   opposed

introduction of these documents because they were produced on

the morning of trial and not in a timely manner according to the

discovery      rules,     thus     preventing     the     government     from     being

prepared    to    cross      examine    the     witness    adequately     about      the

documents. 2

            At    trial,      Moore     testified       that    she   purchased      the

Cadillac on February 22, 2002, that it was registered in her

name, that the license number when she bought it was 391 NLE,

and that the number was changed a month later.                        The jury thus

had to weigh conflicting testimony about the license number of

the Cadillac owned by Moore on the day of the controlled buy

without documentation to support either the testimony of Moore

      1
       Holmes does not contend that his attorney had insufficient
time to examine the proffer statements of government witnesses.
      2
       During the pretrial conference when the district court
denied Holmes’ motion for a continuance, defense counsel did not
suggest that time might be needed to allow the government to
examine such documents.



                                           8
or Agent Jones.      The government’s case, however, rested mainly

on the testimony of Jones and the informant, who both identified

Holmes as the seller.

            Given   that    several      continuances       had   been   granted

before   the     district   court       denied    Holmes’    request     for    an

additional     continuance, 3     and    that     the   trial     attorney     was

appointed      several   months     earlier,      apparently      received     all

discovery well in advance of the trial date, and had ample time

to explore a defense, we conclude that the district court did

not abuse its discretion in denying a continuance on the eve of

trial.

            We therefore affirm the convictions and the sentence

imposed by the district court.               We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the

decisional process.

                                                                         AFFIRMED




     3
       The record reveals that the district court granted five
continuances before trial.



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