UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4540

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

KELVIN JEROD HOLMAN, a/k/a J-Five,

Defendant – Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Orangeburg. Margaret B. Seymour, District 

Judge. (5:04-cr-00964-MBS-2)

Submitted: December 6, 2010 Decided: January 12, 2011

Before MOTZ, KING, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Russell W. Mace, III, THE MACE FIRM, Myrtle Beach, South 

Carolina, for Appellant. William N. Nettles, United States 

Attorney, Stacey D. Haynes, Assistant United States Attorney, 

Columbia, South Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Kelvin Jerod Holman appeals the 360-month sentence 

imposed after we vacated his original sentence and remanded to 

the district court with instructions to apply the factors 

outlined in U.S. Sentencing Guidelines Manual § 3B1.1 cmt. n.4 

(2007), to determine whether his role in the offense warranted 

the two-level enhancement to his offense level. United 

States v. Holman, 354 F. App’x 791 (4th Cir. 2009) 

(unpublished). On appeal, Holman contends that the district 

court plainly erred by denying him the opportunity for 

allocution at the resentencing hearing. Finding no reversible 

error, we affirm.

Because Holman did not object to the denial of 

allocution in the district court, we review for plain error. 

United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007); 

see United States v. Olano, 507 U.S. 725, 732 (1993) (detailing 

plain error standard). “Before imposing sentence, the 

[district] court must . . . address the defendant personally in 

order to permit the defendant to speak or present any 

information to mitigate the sentence.” Fed. R. Crim. P. 

32(i)(4)(A)(ii). Even when the defendant is permitted to 

allocute at his original sentencing hearing, “he ha[s] a renewed 

right to allocute at resentencing.” Muhammad, 478 F.3d at 250. 

Here, while both counsel had ample opportunity to present 
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argument, the district court did not give Holman the opportunity 

to allocute during the resentencing hearing; thus, the court 

committed plain error. See id. at 249-50. 

Our finding of plain error does not, however, end the 

inquiry; we must next assess whether the error affected Holman’s 

substantial rights. Olano, 507 U.S. at 732. “[A] defendant 

[is] not prejudiced by the denial of allocution when there was 

no possibility that he could have received a shorter sentence.” 

Muhammad, 478 F.3d at 249. If, however, we can identify a 

ground on which a lower sentence might have been based, we may 

notice the error. See United States v. Cole, 27 F.3d 996, 999 

(4th Cir. 1994) (“When . . . the possibility remains that an 

exercise of the right of allocution could have led to a sentence 

less than that received, . . . fairness and integrity of the 

court proceedings would be brought into serious disrepute were 

we to allow the sentence to stand.”).

Upon review, we conclude that Holman has failed to 

demonstrate that he was prejudiced by the district court’s 

failure to permit him the opportunity to allocute at 

resentencing.*

 * To the extent Holman asserts that he should have been 

allowed to present to the district court evidence of mitigation 

unrelated to the role enhancement, the mandate rule precluded 

the district court from considering such evidence. See United 

States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993).

 Accordingly, we affirm the district court’s 
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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