                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4819


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

HAROLD B. HOLCOMBE,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Robert E. Payne, Senior
District Judge. (3:09-cr-00081-REP-1)


Submitted:   March 5, 2010                   Decided:   April 8, 2010


Before WILKINSON, GREGORY, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public       Defender, Amy L. Austin,
Assistant Federal Public Defender,         Richmond, Virginia, for
Appellant.   Neil H. MacBride, United      States Attorney, Sara E.
Chase, Richard D. Cooke, Assistant         United States Attorneys,
Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                 Harold       B.     Holcombe        appeals            his    sentence       of    twelve

months and one day for driving as a habitual offender, third

offense, in violation of 18 U.S.C. § 13 (2006), assimilating Va.

Code Ann. § 46.2-357(B)(3) (Michie 2005).                                     For the reasons that

follow, we affirm.

                 Holcombe, who has been adjudged a habitual offender in

Virginia,             was         driving       through            the         Fredericksburg           and

Spotsylvania National Military Park when he was spotted by a

park ranger and pulled over for not wearing a safety belt.                                              At

the time, Holcombe’s driver’s license was suspended.

                 Holcombe pled guilty to the offense.                                     At sentencing,

he   requested             that    he    be    sentenced           to    the    one-year       mandatory

minimum term under Virginia law, and that part of his sentence

be     served         in     home       confinement.               Virginia         law      requires    a

mandatory            minimum       sentence         of       one   year       for     a    violation     of

§ 46.2-357(B)(3), all of which must be served in a correctional

facility.            Holcombe argued that the Assimilated Crimes Act, 18

U.S.C.       §       13,    affords       the    district           court       the       discretion    to

sentence him to a partial term of home confinement in lieu of

time    in       a    correctional            facility.            The    district          court    fully

considered            the    question         and    determined           that        it    lacked    that

discretion, that the law required a term of incarceration, and

that in any event, the court would not impose home confinement

                                                         2
even if it had the discretion to do so.                             Because the court

unambiguously        announced         that    it       would     not     have     permitted

Holcombe to serve his sentence under home detention even if it

had   discretion      to    do    so,   Holcombe         cannot     point    to    any   non-

harmless error. *

               Holcombe     further       challenges         the     adequacy       of   the

district       court’s     explanation        of     its   statement        that    Holcombe

would     be   sentenced     to    a    term       of   imprisonment        regardless    of

whether it could instead have imposed home confinement for some

or all of the applicable term.                     We have reviewed the record and

find no error in the district court’s explanation.

               The   judgment      of    the        district      court     is     therefore

affirmed.        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




      *
        We note that both Holcombe and the Government have
requested oral argument to address a district court’s authority
under the circumstances presented to permit a defendant to serve
a sentence under home detention in lieu of confinement in a
correctional facility.   Because there is no non-harmless error
alleged, we deny that request.



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