IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-10428 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOVON JAMES HOLCOMB,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:01-CR-177-3-A -------------------- January 7, 2003

Before JOLLY, HIGGINBOTHAM and DAVIS, Circuit Judges.

PER CURIAM:*

Jovon James Holcomb appeals his sentence following his plea

of guilty to two counts of using and carrying a firearm during

and in relation to a crime of violence, and aiding and abetting.

Holcomb argues that, although the district court had the

authority to depart upwards, it abused its discretion in upwardly

departing from the guideline range, given his substantial

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 02-10428 -2-

assistance and because the court did not upwardly depart in

sentencing one of his codefendents, Adrium Clark.

Although Holcomb argued at the sentencing hearing that he

should be granted a downward departure, he did not argue at

sentencing, as he does on appeal, that an unwarranted sentencing

disparity exists between his sentence and that of a codefendant.

Therefore, this court reviews for plain error only. To establish

plain error, an appellant bears the burden to show: (1) there is

an error, (2) that is clear or obvious, and (3) that affects his

substantial rights. United States v. Calverley,

(5th Cir. 1994) (en banc) (citing United States v. Olano,

(1993)).

Although the district court should strive to avoid

sentencing disparities, see

(a)(6), a

codefendant’s sentence is not a “yardstick” by which to measure

the sentence of another codefendant. See United States v.

Sparks,

(5th Cir. 1993). A defendant “cannot

base a challenge to his sentence solely on the lesser sentence

given by the district court to his codefendant.” United States

v. Boyd,

(5th Cir. 1989); United States v.

Lindell,

(5th Cir. 1989). Thus, Holcomb has

not demonstrated plain error with respect to his

disparity-in-sentencing argument.

Moreover, the district court explicitly stated that its

upward departure was designed to avoid disparity in sentencing No. 02-10428 -3-

and that the court had considered the fact that codefendant

Cedric Diggs had received a 738-month sentence, codefendant

Andreco Lott had received a 1,111-month sentence, and Clark had

received a 438-month sentence. At Clark’s sentencing hearing,

the district court considered the fact that Clark already had

been sentenced to 12 years by the state court. The district

court ordered that Clark’s federal sentence be consecutive to his

state-court sentence. Thus, in sentencing Clark, the district

court knew that Clark was being sentenced to a total of 582

months.

Holcomb has failed to show that his sentence was plain

error. The judgment of the district court is AFFIRMED.