                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4663


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

PAUL ANTHONY HOLMES, a/k/a Pauly,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.   Cameron McGowan Currie, District
Judge. (3:08-cr-00604-CMC-1)


Submitted:   August 5, 2010                 Decided:   September 9, 2010


Before SHEDD, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Marcia G. Shein, LAW OFFICES OF MARCIA G. SHEIN, P.C., Decatur,
Georgia, for Appellant. Kevin F. McDonald, Acting United States
Attorney, Jeffrey Mikell Johnson, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Paul Anthony Holmes appeals his sentence following a

guilty plea to conspiracy to distribute one kilogram or more of

heroin,     in    violation      of   21   U.S.C.         § 846    (2006).            Holmes

challenges       the     district     court’s       decision       to     give     him      a

four-level role adjustment pursuant to USSG § 3B1.1(a), and a

two-level     obstruction        of   justice       increase      pursuant       to    USSG

§ 3C1.1.



                           I.     Role in the Offense

            This court reviews sentencing adjustments based on a

defendant’s       role    in    the   offense       for    clear    error.            United

States v. Sayles, 296 F.3d 219, 224 (2002).                        We may affirm a

sentence enhancement for any reason appearing in the record.

United States v. Garnett, 243 F.3d 824, 830 (4th Cir. 2001).

            A defendant’s offense level is to be increased by four

levels    “[i]f    the    defendant    was     an    organizer      or    leader       of   a

criminal    activity      that     involved     five      or   more      participants.”

USSG § 3B1.1(a).           A “participant” is someone who can be held

“criminally responsible” for the commission of the offense.                              See

USSG § 3B1.1 cmt. 4.            The following factors should be considered

in determining whether a role adjustment is warranted:

     (1) the exercise of decision making authority, (2) the
     nature of participation in the commission of the
     offense, (3) the recruitment of accomplices, (4) the

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       claimed right to a larger share of the fruits of the
       crime, (5) the degree of participation in planning or
       organizing the offense, (6) the nature and scope of
       the illegal activity, and (7) the degree of control
       and authority exercised over others.

See United States v. Kellam, 568 F.3d 125, 148 (4th Cir. 2009)

(citing USSG § 3B1.1 cmt. 4).

             However, a defendant need only exercise control over

one    other       participant    in   order    to    be    deemed    a    leader      or

organizer.           See   USSG    § 3B1.1     cmt.    2.      This       is   “not     a

particularly onerous showing,” requiring “only a conclusion that

[the defendant] supervised at least one . . . participant,” and

it “does not require the court to identify specific examples.”

See United States v. Hamilton, 587 F.3d 1199, 1222 (10th Cir.

2009)    (citations        omitted).      Moreover,         once   the     court      has

determined that the defendant exercised some control over at

least one participant, it need look no further into whether or

not the defendant exercised control over others.                     Id. at 1223.

             Taking the record as a whole, there is ample evidence

to support the district court’s determination that Holmes was a

leader or organizer of a criminal enterprise consisting of five

or more people.            First, the Government’s unopposed summary of

the evidence at Holmes’ plea colloquy establishes that he was a

part    of     a    criminal     conspiracy    comprised      of     at   least     five

individuals, and that his co-defendant, Shaheed Chaplin, was his

“right hand person.”           While Holmes’s acquiescence to these facts

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is arguably enough to establish not only the minimum threshold

size of his organization, but also that he exercised control

over Chaplin, thereby ending this Court’s inquiry, the testimony

offered    at     sentencing     largely        substantiates      the      Government’s

claims.     Cf. United States v. Reid, 523 F.3d 310, 317 (4th Cir.

2008) (“buy-sell transaction[s]” and “continuing relationships,”

coupled with a large quantity of drugs, support an inference

that the parties were co-conspirators) (citations omitted).

            Onza     Lynch,     a     cooperating       co-conspirator,         whom   the

district court credited, made clear that there were at least

eight individuals working for Holmes.                      Moreover, the number of

co-conspirators       included        in   the    organization      would       no    doubt

increase dramatically if the court were to include the various

other lower-level dealers that the testimony established Holmes

supplied.       Cf. United States v. Fells, 920 F.2d 1179, 1182-83

(4th Cir. 1990) (counting lower-level drug dealers, but not end

users, in computation of organizational size).                     Accordingly, the

district    court        did    not    clearly       err    with      regard     to     its

calculations of the size of Holmes’ criminal enterprise.

            As     for    the   level      of    control     Holmes      had    over    his

cohorts, the testimony elicited at sentencing, as credited by

the district court, clearly established that Holmes was a leader

and/or organizer of his group.                  In addition to being the primary

supplier     to     several      street         level   dealers       and      personally

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trafficking large quantities of drugs, Holmes retained decision-

making authority over his drugs and the people working under

him.     He set his own prices and negotiated arrangements with

lower-level     dealers    as    needed.          Moreover,     it   is    clear      that

Holmes possessed the initial knowledge necessary to package and

distribute the drugs, which he passed on to his co-conspirators.

              Holmes   also     decided     who       could   work   for    him.       He

screened      new   dealers     to     determine        if    they   were       suitable

candidates,     and    “laid    down    the      law”    to   recruits     as    to   how

financial obligations were to be handled.                       He provided other

dealers with samples of his wares, made initial arrangements,

and    then   passed    them    off    to       his   underlings     for    day-to-day

servicing, no doubt in an effort to lower his profile and/or

reduce his criminal exposure.

              Holmes also clearly claimed a right to a larger share

of the proceeds of his drug sales than his co-conspirators.                           The

testimony of multiple witnesses indicated that Holmes would set

his price and then “front” drugs to his dealers, essentially on

credit, to sell for him; the dealers would make a profit only if

they were able to sell the drugs for more than Holmes claimed as

his own share.         Invariably, the testimony indicated that Holmes

made more off each transaction than his lower-level dealers did,

and more importantly, it showed that Holmes took priority when

it was time to “settle up.”

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            Holmes argues that the district court erred by giving

him   a   four-level     role       adjustment       because,        he    contends,    the

evidence does not establish that he is anything more than a mere

seller of drugs.         Holmes argues that because his relationships

with Chaplin, Lynch, and the various other downstream dealers he

supplied were informal and non-exclusive, and because he sold

drugs on a consignment basis, he is somehow less of an organizer

or leader.      Holmes has failed to cite to any case or authority

that would tend to indicate that either of these factors has any

direct bearing on whether or not he is a leader or organizer of

the conspiracy to which he plead guilty.

            This court has never held that a criminal enterprise

must have a rigid structure or be the only criminal enterprise

its   members    are     a    part       of    before     conspiratorial         criminal

liability can attach.             Cf. United States v. Burgos, 94 F.3d 849,

858 (4th     Cir.   1996)     (en    banc)        ("while     many       conspiracies   are

executed     with   precision,           the      fact    that       a     conspiracy    is

loosely-knit, haphazard, or ill-conceived does not render it any

less a conspiracy — or any less unlawful").                      Thus, it would seem

counterintuitive to allow an organizer of such a conspiracy to

escape     liability     simply      by       virtue     of    the       “loose-knit”    or

“haphazard”     nature       of    his    plans.         As    stated       above,   under

§ 3B1.1, the Government need only establish that a defendant



                                              6
exercised control over one of his co-conspirators, not that he

exercised rigid or exclusive control over any of them.

                Moreover, the selling of drugs on consignment does not

create      a     wall      between        a       seller       and      his   downstream

co-conspirators in the way that Holmes seems to contend.                                    A

dealer who consigns or “fronts” drugs to a lower-level dealer

with the expectation that the drugs will be sold and he will be

repaid from the proceeds of those retail sales “overstep[s] a

mere seller’s role,” and assumes a control position.                           See United

States     v.    Pena,     67    F.3d    153,      156    (8th    Cir.     1995);    United

States v. Atkinson, 85 F.3d 376, 378 (8th Cir. 1996).

                Thus, Holmes cannot hide behind the structure of his

arrangements        with    his       underlings         to    insulate    himself        from

leadership       liability       in     this   conspiracy.            Contrary      to    what

Holmes argues, the nature of his arrangements only supports the

conclusion that he retained control, not that he relinquished

it.       Accordingly,      we    find     that     the       district    court     did   not

clearly err in giving Holmes a four-level adjustment for his

role in the conspiracy. *


      *
       Holmes has also argued that the district court erred by
not explicitly considering a lesser enhancement under USSG
§§ 3B1.1(b) or (c); however, Holmes has failed to cite to any
authority to support this argument and we are not aware of any.
Under these circumstances, we think a lesser enhancement under
either subsection (b) or (c) would have been inappropriate.



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                             II.    Obstruction of Justice

               Holmes     has      also     challenged            the     district       court’s

two-level enhancement for obstruction of justice under § 3C1.1.

The enhancement was based on the court’s findings that while

Holmes and a co-conspirator, Lynch, were incarcerated at the

same facility, Holmes threatened to expose Lynch as a government

snitch    if    Lynch     testified        against         him,    and    that   Holmes           had

arranged       for    a   $25,000      bounty        for    Lynch’s       murder     if       Lynch

continued to cooperate with the authorities.                              Holmes maintains

the   court     failed       to    give   him       adequate      notice    that        it    would

consider the enhancement, and that the uncorroborated testimony

of Lynch was an insufficient basis to find that he qualified for

the enhancement.          Both arguments lack merit.

               Holmes’    arguments        concerning         the       sufficiency          of   the

evidence are reviewed for clear error.                       United States v. Hughes,

401 F.3d 540, 560 (4th Cir. 2005).                         We believe there is ample

evidence in the record to support Holmes’ two-level enhancement

for threatening Lynch.

               The    main    thrust      of    Holmes’      argument       is     to    contest

Lynch’s credibility and to insist that he not be believed in the

absence    of        corroborative        evidence.           However,       there       is,       of

course, no requirement that the Government provide corroboration

for Lynch’s testimony, and this Court will not substitute its



                                                8
credibility determinations for that of the district court.                                  Cf.

United States v. Murray, 65 F.3d 1161, 1165 (4th Cir. 1995).

              Even      without       Lynch’s         testimony     that    Holmes       put    a

$25,000      bounty      on     his    head,          Holmes’     own    words    more      than

adequately establish that he threatened Lynch with the intent to

intimidate him or prevent him from testifying.                             In a letter to

the district court, Holmes admitted calling Lynch a “snitch” and

a “rat,” and threatening to expose Lynch as such in the prison

yard.        This       alone    is     an        adequate      ground     to    support       an

obstruction        of    justice       enhancement.             See     United     States      v.

Jackson, 974 F.2d 104, 105-106 (9th Cir. 1992) (disseminating

information that a cooperating witness is a “snitch” and a “rat”

to others can “potentially chill [the witness’] willingness to

testify”); United States v. Hurst, 228 F.3d 751, 761-62 (6th

Cir. 2000) (inciting other inmates to harm cooperating witness

warranted obstruction enhancement).                           Accordingly, the district

court   did    not      clearly       err    by    finding      that    Holmes     obstructed

justice.

              In     support      of        his       alternate    argument,       that     the

district court erred by failing to give him reasonable notice

that    it    would     consider       imposing          an    obstruction       enhancement,

Holmes cites to Federal Rule of Criminal Procedure 32(h), which

states that:



                                                  9
     Before the court may depart from the applicable
     sentencing range on a ground not identified for
     departure either in the presentence report or in a
     party’s prehearing submission, the court must give the
     parties reasonable notice that it is contemplating
     such a departure. The notice must specify any ground
     on which the court is contemplating a departure.

             The   Government      counters      by    arguing      that    Rule     32(h)

applies    only    to   “departures,”          and    that    an   adjustment       under

§ 3C1.1 is not a “departure,” but instead an inherent part of a

defendant’s guideline sentence, and that no notice was required.

We need not address the Government’s claim at this time, as

Holmes has failed to show a reversible error in any event.

             Because      Holmes    failed      to     object      to     the     district

court’s     allegedly     inadequate       notice      below,      this     Court       must

review for plain error.            See United States v. McClung, 483 F.3d

273, 276 (4th Cir. 2007).           To establish plain error, Holmes must

show that an error (1) was made, (2) is plain (i.e., clear or

obvious),    and    (3)    affects       his    substantial        rights.          United

States v.    Massenburg,      564    F.3d      337,    342-43      (4th    Cir.     2009).

Even if Holmes makes this three-part showing, this Court may

exercise     its   discretion       to    correct       the     error      only    if     it

“seriously affects the fairness, integrity or public reputation

of judicial proceedings.”           Id. at 343 (internal quotation marks

omitted).

             Even assuming that the district court was required to

provide notice to Holmes and that its notice was inadequate,

                                          10
Holmes    has   still    not    shown   that    the     court’s    alleged   failing

affected his substantial rights.               Holmes does not substantively

address the fact that his own letter sealed his fate just as

much as the testimony of Lynch did, except to say in completely

conclusory fashion that had he received notice, “it very likely

would have affected the outcome of the sentencing proceeding.”

At   no   point   does    Holmes    ever      explain    how    receiving    notice,

assuming he was entitled to receive it, would have changed the

fact that he admitted to behavior justifying the enhancement.

Therefore, Holmes has failed to carry his burden of establishing

that   the   district     court    committed     plain     error    by    failing   to

notify him that it might enhance his sentence for obstructing

justice.

             Accordingly, we affirm the district court’s judgment.

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




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