United States v. HolmesUnited States v. Holmes
- Reporters:
- Before:
- Dubina, Marcus, Kravitch (per curiam)
Laura G. Hastay, Law Office of Laura G. Hastay, PC, Savannah, GA, for Defendant-Appellant.
Before DUBINA, Chief Judge, MARCUS, аnd KRAVITCH, Circuit Judges.
PER CURIAM:
Appellant Eric Holmes appeals his conviction and 120-month sentence after a jury found him guilty of being a felon in possession of a firearm, in violation of
I.
We review a district court’s determination of the admissibility of hearsay for abuse of discretion. United States v. Miles, 290 F.3d 1341, 1351 (11th Cir.2002) (per curiam). We will not reverse an erroneous evidentiary ruling unless “there is a reasonable likelihood that [it] affeсted the defendant’s substantial rights.” United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir.1990). “[W]here an error had no substantial influence on the outcome, and sufficient evidence uninfected by error supports the verdict, reversal is not warranted.” Id.
“Hearsay” is a statement that: (1) the declarant makes outside of court; and (2) a party offers into evidence to prove the truth of the matter asserted in the statement.
Out-of-court statements offered for a reason other than the truth of the matter asserted are not hearsay, and
We conclude from the record that the district court did not abuse its discretion in finding that the recorded 911 calls werе admissible, if hearsay, as both present sense impressions and excited utterances. Even if the district court erred in admitting the content of the 911 calls as non-hearsay statements not offered for the truth of the matter asserted, we conclude that such error was harmless because (1) the court properly аdmitted the content of the calls as hearsay exceptions; and (2) sufficient trial evidence independent of the contested 911 calls established Holmes’s guilt. The district court’s admission of the 911 caller’s statements into evidence had no substantial influence on the outcome of the case.
II.
“We review the legal correctness of a jury instruction de novo but defer to thе district court on questions of phrasing absent an abuse of discretion.” United States v. Mintmire, 507 F.3d 1273, 1292-93 (11th Cir.2007). “District courts have broad discretion in formulating jury instructions, so long as the charge as a whole accurately reflects the law and facts,” and we will only reverse a conviction when the court inaccurately presented the issues of law, or its “charge improperly guided the jury in such a substantial way as to violate due process.” Id. at 1293 (internal quotation marks omitted). However, when the defendant fаils to object to the jury charge as read at trial prior to the jury retiring, we review the claim for plain error only. United States v. Schlei, 122 F.3d 944, 973 (11th Cir.1997). When analyzing a claim under the plain-еrror standard, we look to see (1) whether the district court committed error; (2) whether the error was plain; and (3) whether the error affected a substantial right. United States v. Bennett, 472 F.3d 825, 831 (11th Cir.2006) (рer curiam). Error affects substantial rights when it affects the outcome of the proceeding. United States v. Olano, 507 U.S. 725, 734 (1993). In order to be reversible, this error also must “seriously affect[] the fairness, integrity[,] or public reputation of judicial proceedings.” Id. at 732 (internal quotation marks omitted).
As a whole, we conclude that the district court’s instructions accurately reflected the law. Although the court deviated from the scripted written instructions, Holmes does not meet his burden of showing that any error in the court’s oral statement was plаin error or that any error of the court affected the outcome of the proceedings—that, but for the wording choices of the court, Holmes would not have been convicted as charged. Holmes does not show that the court committed
III.
We review a sentence imposed by the district court for reasonableness and evaluate the substantive reasonableness of a sentence under the deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 46 (2007). Although we do not apply a presumption of reasonableness for sentences falling within the guidelines range, “ordinarily we would expect a sentence within thе Guidelines range to be reasonable.” United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005) (per curiam).
We review the totality of the facts and circumstances to gauge for substantive error. United States v. Irey, 612 F.3d 1160, 1189-90 (11th Cir.2010) (en banc). The party сhallenging the sentence has the burden to establish that the sentence is unreasonable. Talley, 431 F.3d at 788. The relevant inquiry is “whether the sentence imposed by the district court fails to achieve the purposes of sentencing as stated in section 3553(a).” Id. The
(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need for deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed еducational or vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to victims.
Id. at 786 (summarizing
We conclude from the record that Holmes has not met his burden of showing that his 120-month sentence was substantively unreasonable.
IV.
For the aforementioned reasons, we affirm Holmes’s conviction and sentence.
AFFIRMED.