                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 12a0486n.06

                                             No. 08-5874

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                                                                           FILED

UNITED STATES OF AMERICA,              )
                                                                                      May 09, 2012
                                       )                                       LEONARD GREEN, Clerk
      Plaintiff-Appellee,              )
                                       )              ON APPEAL FROM THE UNITED
v.                                     )              STATES DISTRICT COURT FOR THE
                                       )              WESTERN DISTRICT OF
LOUIE HOLLOWAY,                        )              TENNESSEE
                                       )
      Defendant-Appellant.             )                      OPINION
                                       )
______________________________________ )

       Before: KEITH, GRIFFIN, and STRANCH, Circuit Judges.

       JANE B. STRANCH, Circuit Judge. In September 2002, Louie Holloway, John Green,

Eronia Neal, and Charles Nelson attempted to rob pizza delivery man John Stambaugh. During the

attempted robbery, one of the robbers shot and killed Stambaugh with a sawed-off shotgun. Based

on this crime and Holloway’s ownership of two guns not relevant to this appeal, a jury found

Holloway guilty of three counts of being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g); attempted robbery affecting commerce, in violation of 18 U.S.C. § 1951 (Count 4); and

carrying and using a firearm during the commission of a crime of violence, in violation of 18 U.S.C.

§ 924(c) (Count 5). The district court sentenced Holloway to life in prison.

       Holloway argues on appeal that the district court clearly erred in finding that the four men

intended to rob and kill Stambaugh and that the district court’s reliance on this clearly erroneous fact

rendered his sentence both procedurally and substantively unreasonable. But the sentence did not turn
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Page 2

on this finding; rather, it turned on (1) the jury’s findings that Holloway committed a crime of

violence—attempted robbery—and that he knowingly carried and used a firearm during attempted

robbery or that he aided and abetted someone else in doing so, and (2) the court’s findings that the

firearm discharged during the robbery and that the shot killed Stambaugh. Because these findings are

undisputed, we AFFIRM the judgment of the district court.

                                         BACKGROUND

       During a night in September 2002, Holloway, Green, Neal, and Nelson drove to the Midtown

area of Memphis looking for someone to rob. Holloway was armed with a sawed-off shotgun and

Holloway and Green were wearing latex gloves.

       The four men saw pizza delivery man Stambaugh make a delivery at an apartment building

and return to his car. Holloway and Green approached Stambaugh, while Neal acted as a lookout.

Neal heard someone scream “Durand,” Holloway’s nickname, and then Neal heard a shotgun fire.

Although Neal did not see Holloway fire the shotgun, he heard the shot and saw Holloway with the

shotgun. The shot killed Stambaugh. As the four criminals fled in the getaway car, Green asked

Holloway why he shot Stambaugh. Holloway answered that he shot Stambaugh because someone

screamed out Holloway’s nickname.

       In October 2002, a little over five weeks after Stambaugh’s murder, police officer Christopher

Vaden arrested Green after receiving a call that a black male matching the description of Green had

been seen riding a bicycle with a sawed-off shotgun. Although Green no longer had the shotgun when

Vaden found him, Vaden learned from Green that the shotgun was in the house at 3202 Nathan

Avenue.
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Page 3

       Vaden and other officers knocked on the door of 3202 Nathan. Verronia Neal answered and

told the officers that she was the only one in the house. (Verronia is Eronia Neal’s sister, and she was

also Holloway’s girlfriend at that time.) The officers secured the area and obtained a search warrant

for the house. As the officers approached the house, Holloway came out with his hands up and was

taken into custody. The officers searched the home and found a loaded, sawed-off shotgun hidden

in a compartment underneath the stove. Just before Holloway was transported away from the scene,

he told his girlfriend that he would see her “in about 20 years.” Holloway later admitted to a robbery

investigator that he had possession of the sawed-off shotgun found at 3202 Nathan.

       Because Holloway admitted to possessing the sawed-off shotgun and because he had been

linked to an unrelated robbery, homicide detectives questioned him about the murder of Stambaugh.

Holloway initially denied knowing anything about the murder. But he recanted this denial during a

second interview after the investigators confronted him with Green’s statements that Holloway was

involved in the attempted robbery and that he shot Stambaugh. Holloway then said that he was a

lookout during the robbery and murder, but he denied shooting Stambaugh. He implied that Nelson

was the shooter.

       The jury convicted Holloway on all five counts. At the sentencing hearing, the district court

made the following factual findings:

                So we have a very serious crime. What happened? What happened is that Mr.
       Holloway and three of his friends set out to commit a crime, and they did. They went
       down into the Cooper-Young neighborhood and found Mr. Stambaugh, who was
       delivering pizza and had basically no funds on him. And they intended to rob him and
       to kill him. When I say they, I am speaking of four individuals, Mr. Holloway, John
       Green, Charles Nelson, and [Eronia] Neal. One could not say with absolute certainty
       who fired the shot. The gun was found in Mr. Holloway’s possession. Several of the
       individuals said that Mr. Holloway was the killer. But whether he was or not, he had
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Page 4

       both a moral and a legal responsibility for Mr. Stambaugh’s death. And he was an
       active participant in this crime. And he is as liable for it legally as if he perpetrated
       it.

                In my own view, based on the preponderance of the evidence, . . . Mr.
       Holloway was the shooter. But that is not a factor that I am going to be considering
       in the sentence. I am going to rely on Mr. Holloway’s active participation in the crime
       as sufficient. So, we have a very serious offense in which Mr. Holloway was a
       principle participant.

That “very serious crime,” as the court later explained, was “the discharge of a firearm during [the]

commission of a crime of violence [that] resulted in the death of a human being.”

       The court calculated the Guidelines range as life imprisonment based on an offense level of

43, and Holloway conceded that this was the correct range. After reviewing the other factors set forth

in 18 U.S.C. § 3553(a), the district court sentenced Holloway to concurrent sentences of 10 years’

imprisonment on Counts 1-3 (felon in possession of a firearm), a concurrent sentence of 20 years’

imprisonment on Count 4 (attempted robbery affecting commerce), a consecutive life sentence in

prison on Count 5 (carrying and using a firearm during the commission of a crime of violence), three

years of supervised release upon release from prison, and a $500 fine.

       Holloway timely appealed his sentence.

                                            DISCUSSION

       For the first time on appeal, Holloway argues that the district court clearly erred in finding that

the four men intended to rob and kill Stambaugh because “[t]here was no evidence presented at trial

that any of the men involved in the attempted robbery . . . intended to cause death on the night in

question.” Holloway contends that the district court’s reliance on this clearly erroneous fact in turn

rendered his sentence of life imprisonment both procedurally and substantively unreasonable. But
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Page 5

Holloway’s sentence did not turn on this finding; rather, it turned on the following undisputed facts:

(1) The jury’s finding that Holloway knowingly carried and used a firearm while committing

attempted robbery or that he aided and abetted someone else in doing so, and (2) the court’s finding

that the firearm discharged during the robbery, killing Stambaugh. Holloway’s argument is

unpersuasive because it fails to address these undisputed findings.

A.     Standard of review

       This Court reviews criminal sentences for both substantive and procedural reasonableness.

Gall v. United States, 552 U.S. 38, 51 (2007). “Reasonableness is determined under the deferential

abuse-of-discretion standard.” United States v. Battaglia, 624 F.3d 348, 350 (6th Cir. 2010).

       In determining procedural reasonableness, this Court assesses “whether the district court

properly calculated the Guidelines range, treated the Guidelines as advisory, considered the 18 U.S.C.

§ 3553(a) factors, selected a sentence based on a reasonable determination of the facts, and adequately

explained the sentence.” Id. at 350-51. The district court's factual findings are reviewed under the

clearly erroneous standard. Id. A factual finding is clearly erroneous where the reviewing court is

left with the definite and firm conviction that a mistake has been made. United States v. Lucas, 640

F.3d 168, 173 (6th Cir. 2011). “If there are two permissible views of the evidence, the district court's

determination cannot be clearly erroneous. [Anderson v. City of Bessemer City, 470 U.S. 564, 574

(1985).] This Court reviews the evidence in the light most likely to support the district court's

decision.” Id.

       If the sentence is procedurally reasonable, this Court then determines if it is substantively

reasonable. United States v. Brooks, 628 F.3d 791, 796 (6th Cir. 2011). “The essence of a
United States v. Holloway, No. 08-5874
Page 6

substantive-reasonableness claim is whether the length of the sentence is ‘greater than necessary’ to

achieve the sentencing goals set forth in 18 U.S.C. § 3553(a).” United States v. Tristan-Madrigal,

601 F.3d 629, 632-33 (6th Cir. 2010). “The sentence may be substantively unreasonable if the district

court chooses the sentence arbitrarily, grounds the sentence on impermissible factors, or unreasonably

weighs a pertinent factor.” Brooks, 628 F.3d at 796. A sentence is rebuttably presumed to be

reasonable if it lies within the applicable Guidelines range. Id. Moreover, an appellate court cannot

justify overturning a sentence just because it “might reasonably have concluded that a different

sentence was appropriate.” Gall, 552 U.S. at 51.

       The standard of review in sentencing cases may also depend on whether the district court

asked the “Bostic ” question. See United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir.2004). The

rule set forth in Bostic requires that this Court review procedural-reasonableness arguments raised

for the first time on appeal under the plain-error standard if the sentencing judge asked the parties

“whether there are any objections not previously raised.” United States v. Freeman, 640 F.3d 180,

186 (6th Cir. 2011). But this rule does not apply to substantive-reasonableness claims because those

claims “do not need to be raised before the district court to be preserved for appeal.” Id. at 185.

       After pronouncing the sentence in this case, the district court asked each party the following

question: “[D]o you know of any reason other than any reason you have already stated, why the

sentence should not be imposed as stated?” (Sentencing Tr., DE 102 at 41) Holloway’s counsel

replied, “No, Your Honor.” Because Holloway’s arguments on appeal were not raised below, his

challenge to the procedural reasonableness of his sentence is reviewed under the plain-error standard.

See Freeman, 640 F.3d at 186.
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B.     Procedural and substantive reasonableness

       Holloway contends that his sentence of life imprisonment is procedurally unreasonable

because the district court clearly erred in finding that the four men intended to kill Stambaugh and

because the district court selected the sentence based on this erroneous fact. He also contends that

his sentence was substantively unreasonable “because of the great weight the court gave to the [clearly

erroneous] belief that there was intent to kill.” Both of these arguments fail, however, because the

court did not rely on this fact in imposing a sentence of life imprisonment.

       The court explicitly stated that for sentencing purposes, it was “going to rely on Mr.

Holloway’s active participation in the crime as sufficient. So, we have a very serious offense in

which Mr. Holloway was a principle participant.” (Emphasis added.) That “very serious crime,” as

the court later explained, was “the discharge of a firearm during [the] commission of a crime of

violence [that] resulted in the death of a human being.” This crime is based in part on the jury’s

findings that Holloway committed a crime of violence—attempted robbery—and that during this

violent crime he either knowingly carried and used a firearm or aided and abetted one of the other

three participants in doing so. The remainder of the serious crime is based on the court’s findings that

the firearm discharged during the robbery and that the shot killed Stambaugh.

       These findings are undisputed and sufficient to justify the court’s sentence. Significantly,

Holloway conceded that the Guidelines range of life imprisonment as calculated by the court is

correct. And the Guidelines support the court’s conclusion that Holloway’s active participation in

the serious crime was sufficient to justify its sentence without relying on its further finding that the
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Page 8

four men intended to kill Stambaugh. Under the rules of relevant conduct set forth in U.S.S.G.

§ 1B1.3(a)(1)(A), (B) (2001), Holloway is responsible for

       (A)     all acts and omissions committed, aided, abetted, counseled, commanded,
               induced, procured, or willfully caused by the defendant; and

       (B)     in the case of jointly undertaken criminal activity (a criminal plan, scheme,
               endeavor, or enterprise undertaken by the defendant in concert with others,
               whether or not charged as a conspiracy), all reasonably foreseeable acts and
               omissions of others in furtherance of the jointly undertaken criminal activity,
               that occurred during the commission of the offense of conviction.

Application Note 2 to this guideline provides the following relevant example of these principles:

       [T]wo defendants agree to commit a robbery and, during the course of that robbery,
       the first defendant assaults and injures a victim. The second defendant is accountable
       for the assault and injury to the victim (even if the second defendant had not agreed
       to the assault and had cautioned the first defendant to be careful not to hurt anyone)
       because the assaultive conduct was in furtherance of the jointly undertaken criminal
       activity (the robbery) and was reasonably foreseeable in connection with that criminal
       activity (given the nature of the offense).

       Applying this reasoning to Holloway’s participation in the jointly undertaken criminal activity

of armed robbery, he is accountable for the resulting death of Stambaugh. And a cross-reference to

U.S.S.G. § 2A1.1, the guideline for First Degree Murder, was properly applied for the following

reasons set forth in the Second Addendum to the Presentence Report:

               The United States Sentencing Guidelines for violations of 18 U.S.C. § 922(g),
       Possession of a Firearm by a Convicted Felon, and 19 U.S.C. § 1951, Obstruction of
       Interstate Commerce by Robbery, are found at U.S.S.G. § 2K2.1 and 2B3.1,
       respectively. Pursuant to U.S.S.G. §§ 2K2.1(c)(1)(B) and 2B3.1(c)(1), cross reference
       guidelines to the substantive offense are to be applied, if, as in this case, death
       resulted, and/or a victim was killed under circumstances that would constitute murder
       under 18 U.S.C. § 1111. In this case, a cross reference to [§] 2A1.1, Homicide/First
       Degree Murder, was applied. U.S.S.G. § 2A1.1 Application Note No. 1 states that
       “this guideline also applies when death results from the commission of certain
       felonies,” which, in this case would be the homicide that resulted from the felony
       offense of armed robbery.
United States v. Holloway, No. 08-5874
Page 9

          In sum, Holloway’s essential argument on appeal—that the sentence was unreasonable

because the district court based the sentence on its clearly erroneous belief that there was an intent

to kill—fails because its premise is false. The court did not base the sentence on a finding of an

intentional killing. It instead based it on the undisputed fact of Holloway’s active participation in the

crime.1

          But even if we were to accept the premise of Holloway’s argument, the sentence is still

reasonable because the district court did not clearly err in finding that the four men intended to kill

Stambaugh. The night Stambaugh was killed, the four robbers set out to rob someone armed with a

loaded, sawed-off shotgun and possibly other weapons. Both parties agree that one of the four men

fired a gun at Stambaugh’s chest causing a large, gaping wound that appeared too large to have come

from a pistol or rifle, and that Stambaugh died from the gunshot. And in both versions of the

shooting described at trial, the shooter shot Stambaugh at close range. Based on these circumstances

alone, the district court did not clearly err in inferring, based on a preponderance of the evidence, that

the killing of Stambaugh was intentional. The district court’s sentence is therefore both procedurally

and substantively reasonable.




          1
         Although the district court’s sentence was not based on a finding of an intentional killing,
 Holloway correctly notes that Application Note 1 of U.S.S.G. § 2A1.1 does state that “[i]f the
 defendant did not cause the death intentionally or knowingly, a downward departure may be
 warranted.” But as the word may makes clear, the decision to depart downward is discretionary with
 the court. And the discretionary downward departure is contained in an advisory guideline that does
 not bind the district court. United States v. Booker, 543 U.S. 220, 246 (2005); Gibbs v. United
 States, 655 F.3d 473, 479 (6th Cir. 2011). Moreover, because Holloway did not make this
 procedural-reasonableness argument below, he would need to show plain error, an argument he does
 not even advance on appeal. See Freeman, 640 F.3d at 186.
United States v. Holloway, No. 08-5874
Page 10

                                         CONCLUSION

       For the reasons set forth above, we AFFIRM the judgment of the district court.
