United States of America v. Herbert Holder

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1426
U NITED STATES OF A MERICA ,
Plaintiff-Appellee,
v.
HERBERT HOLDER,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 21-cr-40047-SMY-1 — Staci M. Yandle, Judge.
____________________
A RGUED D ECEMBER 7, 2023 — D ECIDED MARCH 5, 2024
____________________
Before WOOD, KIRSCH , and J ACKSON-A KIWUMI, Circuit
Judges.
WOOD, Circuit Judge. For several years, Herbert Holder
made his living as a methamphetamine dealer in Williamson
County, Illinois. Eventually, however, the government caught
up with him, and he pleaded guilty to three charges stem-
ming from those activities. The district court sentenced him to
240 months in prison, a term that was 22 months below the
advisory range calculated under the U.S. Sentencing

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2 No. 23-1426
Guidelines. On appeal, Holder challenges only his sentence,
which he says is tainted by both procedural and substantive
error. The alleged procedural flaw lay in the court’s failure to
consider one of his arguments; the substantive problem was
its failure to attach sufficient weight to his mitigation argu-
ments. We find no reversible error in either of these respects,
and so we affirm.
I
Law enforcement officers launched an investigation into
Holder’s drug-trafficking activities in March 2021, after learn-
ing from a confidential informant that Holder was his meth-
amphetamine dealer. During the next month, undercover
agents purchased 3.5-gram batches of methamphetamine
from Holder on three separate occasions. The officers next ob-
tained a warrant to search Holder’s home. That search uncov-
ered 186 grams of methamphetamine hidden in various safes
and compartments, a loaded Ruger LC9S 9mm semi-auto-
matic handgun, and a large amount of ammunition. Holder
previously had been convicted of multiple felonies.
The government indicted Holder on three counts: distrib-
uting methamphetamine, 21 U.S.C. §§ 841(a)(1) and (b)(1)(C),
possessing with intent to distribute methamphetamine, 21
U.S.C. §§ 841(a)(1) and (b)(1)(A), and being a felon in posses-
sion of a firearm, 18 U.S.C. § 922(g)(1). Holder pleaded guilty
to everything. The presentence report (“PSR”) calculated a
base offense level of 32, relying on the conservative estimate
that Holder’s drug-trafficking activities between 2019 and
2021 involved 196.9 grams of actual methamphetamine and
739 grams of a mixture and substance containing metham-
phetamine, see U.S.S.G. § 2D1.1(c)(4). The PSR also classified
Holder as a career offender pursuant to U.S.S.G. § 4B1.1,

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No. 23-1426 3
based on his prior Illinois felony convictions for unlawful de-
livery of cannabis in 2002, for unlawful possession of meth-
amphetamine in 2003, and for possession with intent to de-
liver cannabis in 2009. After accounting for Holder’s career of-
fender enhancement, see id., an enhancement for possessing a
firearm, see U.S.S.G. § 2D1.1(b)(1), and reductions for his
timely plea and acceptance of responsibility, see U.S.S.G.
§§ 3E1.1(a) and (b), Holder’s total offense level was 34. Com-
bined with a criminal-history category of VI, he wound up
with a recommended guidelines range of 262 to 327 months’
imprisonment.
In his pre-sentence filings, Holder urged that several facts
warranted a downward variance. He explained that although
he had been sober for a substantial period, he relapsed after
his mother passed away in 2018. This was important, he said,
because his drug addiction impaired his decision-making
ability. He also cited the education credits he earned while he
was in prison and his positive employment history during his
time outside of prison. Finally, Holder noted that his most re-
cent conviction was in 2009, that he had matured over the in-
tervening 12 years, and that his risk of recidivism as a 48-year-
old was lower than that of younger offenders.
At the sentencing hearing, the district court adopted the
PSR’s findings. Both parties recommended a downward vari-
ance from the recommended sentencing range: the govern-
ment proposed a 180-month sentence, while Holder re-
quested 120 months. During the hearing, Holder informed the
court that two weeks before sentencing, a group of inmates
had assaulted him while he was in jail, causing him to suffer
bruises and a concussion. He asked the court to consider the
assault as a mitigating factor. Holder initially argued that the

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4 No. 23-1426
assault showed the “nature of … being in jail” and the “dan-
gers that defendants have to deal with” in prison, “especially
as [the prisoner] gets older.” But when the court asked how
the assault was relevant to the factors under 18 U.S.C.
§ 3553(a), Holder articulated a different argument:
I think that’s relevant to the nature and circum-
stances of, of the defendant, individual charac-
teristics, and … you know, some people would
think, well, he got a beat down while he was in
jail so … that’s some punishment that he got[.]
The court expressed sympathy for Holder but explained
that it was “not connecting the dots” between his assault and
the § 3553(a) factors (i.e., nature and circumstances of the of-
fense; history and characteristics of the defendant; and the
need for the sentence to reflect a number of points, including
seriousness of the offense, respect for the law, just punish-
ment, deterrence, protection of the public, and provision of
needed resources for the defendant). In response, Holder
doubled down on his argument that the assault was a form of
“punishment” that he had suffered for his offenses. The court
still did not see the connection between the assault and the
§ 3553(a) factors, and so it attempted to identify for itself to
what, if anything, the assault was relevant. Although the
judge initially stated that the assault was “not a basis for a
variance,” just a moment later she said, “well, I guess [the as-
sault is] part of his history” under § 3553(a). Holder agreed,
though he also continued to maintain that the assault was
“punishment” for which he should “get credit.”
After Holder concluded his arguments, the court ex-
plained the factors it took into account in determining his sen-
tence. It cited the seriousness of Holder’s latest offenses, the

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No. 23-1426 5
significant quantities of drugs involved in Holder’s two-year
methamphetamine-trafficking operation, and Holder’s prior
convictions for drug-trafficking-related offenses. The court
noted that Holder continued his illicit activities even after he
had learned that law enforcement was on to him in July 2020,
when officers who were investigating an unrelated incident
found evidence of drug-trafficking activity in Holder’s resi-
dence. At the same time, the court recognized that certain facts
counseled in favor of a below-guidelines sentence, including
Holder’s addiction, the loss of his mother, and the fact that his
prior offenses had occurred years earlier. The court also
acknowledged Holder’s assault in jail once more, though it
said it still was “not connecting the dots” between the assault
and the § 3553(a) factors.
When all was said and done, the court determined that a
downward adjustment was warranted, but not to the extent
proposed by either party. It settled on a sentence of 240
months’ imprisonment on counts one and two and 120
months’ imprisonment on count three, all to run concurrently,
followed by five years of supervised release. Holder’s primary
arguments on appeal are that this sentence was flawed both
procedurally and substantively. He also contends that his Il-
linois marijuana-trafficking convictions cannot serve as pred-
icate offenses for his career offender enhancement under
U.S.S.G. § 4B1.1, but we have squarely rejected that argument,
see United States v. Ruth, 966 F.3d 642, 651–55 (7th Cir. 2020).
Holder is seeking only to preserve this point for possible Su-
preme Court attention. To the extent he might also be asking
us to revisit our own law, we decline to do so.

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6 No. 23-1426
II
We begin with Holder’s procedural challenge, which we
review de novo. United States v. Miedzianowski, 60 F.4th 1051,
1056 (7th Cir. 2023). At sentencing, “a district court must con-
sider a defendant’s principal, nonfrivolous arguments for le-
nience.” United States v. Martin, 718 F.3d 684, 687 (7th Cir.
2013). Holder argues that he made such an argument when he
pointed out the fact that he was assaulted in jail two weeks
before sentencing; he contends that the district court erred by
brushing this point aside.
But that is not what the court did. This is not a case where
the district court “passe[d] over a colorable argument in si-
lence.” Id. To the contrary, the court thoroughly addressed the
assault. It expressed sympathy for the injuries Holder sus-
tained, engaged in a back-and-forth exchange with Holder
about the assault, and even acknowledged the assault as one
of Holder’s mitigation arguments when it explained its sen-
tencing decision.
That was not enough, in Holder’s view, because he reads
the record as indicating that the district court failed to recog-
nize that it had the authority to consider the assault as a miti-
gating factor. “When a district court does not consider an ar-
gument because it is unaware of its authority to do so, a re-
mand is warranted.” United States v. Sandoval-Velazco, 736 F.3d
1104, 1109 (7th Cir. 2013) (citing United States v. Taylor, 520
F.3d 746, 748 (7th Cir. 2008)). Holder interprets the district
court’s repeated statements that it was not “connecting the
dots” between the assault and § 3553(a), combined with its re-
mark that the assault was “not a basis for a variance,” as an
assertion that it did not know that it could consider the as-
sault.

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No. 23-1426 7
The problem is that Holder is reading these statements in
isolation, but the sentencing transcript as a whole tells a dif-
ferent story. The court went the extra mile and tried to imag-
ine what proper argument Holder might have been making.
Immediately after the court opined that the assault was “not
a basis for a variance,” it self-corrected, concluding that
Holder’s best argument for why the assault was relevant was
that it shed light on his history, see 18 U.S.C. § 3553(a)(1). This
dispels any possibility that the court was unaware of its au-
thority to take the assault into account when it sentenced
Holder.
Holder is also dissatisfied with the district court’s refusal
to consider two other arguments that he stressed: that the as-
sault was a form of “punishment” for his offenses and thus
somehow justified a discount on his formal sentence, and that
the assault showed how dangerous prison life can be. But the
court did not err in its treatment of those arguments. Holder’s
principal contention—that the assault was itself a form of
“punishment” for his offenses—plainly lacks merit. And his
argument that the assault shows the dangers that defendants
face in prison makes only a generic point, “rather than one
tailored to [Holder’s] unique characteristics and circum-
stances.” United States v. Schmitz, 717 F.3d 536, 542 (7th Cir.
2013) (finding that a district court need not even “explicitly
address” this type of generic argument). To be sure, Holder
noted in passing that prison is especially dangerous “as [a
prisoner] gets older.” But Holder did not explain how his age
might have rendered him unusually susceptible to abuse in
prison, compared to any other defendant facing incarceration.
Nor did Holder raise any other fact specific to himself that
might have expanded on this line of argument. Instead,

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8 No. 23-1426
Holder circled back to his theory that the assault was “pun-
ishment” for his offenses.
Judges need not credit underdeveloped or meritless argu-
ments. The court here did its best to understand Holder’s
point. It said more than enough to satisfy us that it under-
stood that it could take the assault into account as part of
Holder’s history under § 3553(a). The court therefore did not
commit procedural error.
III
Our review of the substantive reasonableness of a sentenc-
ing decision is only for abuse of discretion. United States v.
Moore, 851 F.3d 666, 674 (7th Cir. 2017). A sentence is substan-
tively reasonable if the district court “gives meaningful con-
sideration to the § 3553(a) factors and arrives at a sentence
that is objectively reasonable in light of the statutory factors
and the individual circumstances of the case.” United States v.
Patel, 921 F.3d 663, 672 (7th Cir. 2019) (cleaned up). There is a
“nearly irrebuttable presumption” that a below-guidelines
sentence is reasonable. United States v. Oregon, 58 F.4th 298,
302 (7th Cir. 2023) (quoting United States v. Miller, 829 F.3d
519, 527 (7th Cir. 2016)). Holder can overcome this presump-
tion “only by showing that the sentence does not comport
with the [§ 3553(a) factors].” United States v. Solomon, 892 F.3d
273, 278 (7th Cir. 2018).
Holder has not met this burden. The court acknowledged
Holder’s principal mitigation arguments, including his drug
addiction, the loss of his mother, the time that had elapsed
since his prior convictions, and his assault while in jail. But it
found these factors outweighed by the aggravating aspects of
his record, including the seriousness of the offenses and his

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No. 23-1426 9
criminal history. The court stressed the dangerousness of dis-
tributing a “serious drug” like methamphetamine and of pos-
sessing firearms; the fact that Holder had been “knee deep”
in trafficking methamphetamine for nearly two years in a
small community; the significant quantities of drugs found in
Holder’s residence, which went “far beyond a need to sup-
port” his addiction; the fact that Holder’s prior drug-traffick-
ing-related convictions were “consistent” with his latest of-
fenses; and the fact that Holder had continued his metham-
phetamine-trafficking activities even though he knew that
law enforcement knew about his drug dealings.
After balancing these factors, the court reasonably deter-
mined that they warranted a sentence reduction, though not
as much as Holder hoped for. Although Holder might wish
that the court had weighed the competing factors differently,
“[s]uch a thorough review of the relevant information is
simply not an abuse of discretion.” United States v. Clay, 50
F.4th 608, 613–14 (7th Cir. 2022).
IV
We AFFIRM the judgment of the district court.

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