USA v. Owen Hinkson

Filing

Opinion issued by court as to Appellant Owen Hinkson. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 12-16306

Date Filed: 02/24/2014

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-16306
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-00106-JEC-AJB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OWEN HINKSON,
a.k.a. Paul Baxter,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
________________________
(February 24, 2014)
Before TJOFLAT, HULL and JORDAN, Circuit Judges.
PER CURIAM:

Case: 12-16306

Date Filed: 02/24/2014

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After pleading guilty, Defendant Owen Hinkson appeals his 48-month
sentence for reentry of a removed alien, in violation of 8 U.S.C. § 1326(a) and
(b)(2). On appeal, Hinkson argues that the district court erred in accepting an
erroneous presentence investigation report (“PSI”).
As to Defendant Hinkson’s criminal history, the PSI listed a 1984 felony
drug trafficking conviction in Boston, Massachusetts and recommended an eightlevel enhancement under U.S.S.G. § 2L1.2(b)(1)(B) based on this conviction. See
U.S.S.G. § 2L1.2(b)(1)(B) (providing for an eight-level increase if the defendant
was previously deported after being convicted of a felony drug trafficking offense
for which the sentence was 13 months or less and the conviction did not receive
criminal history points). The PSI did not assign any criminal history points for the
1984 Boston conviction.
Defendant Hinkson submitted to the sentencing court a certified copy of the
Boston Municipal Court’s docket sheet containing handwritten entries. According
to Hinkson, the docket sheet showed that in 1994, the Boston felony conviction
was reduced to simple possession, a misdemeanor. On appeal, Hinkson argues that
the district court was required to give “full faith and credit” to the Boston
Municipal Court’s final disposition and to reject the PSI’s characterization of his
Boston conviction as a felony.

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The problem for Hinkson is that in both the district court and this Court, he
conceded that his 1984 Boston conviction did not affect his sentence. Specifically,
Hinkson did not receive any criminal history points for the 1984 Boston
conviction, whether it was a felony or a misdemeanor. And, the parties agree that,
even absent Hinkson’s Boston conviction, he still qualified for the eight-level
enhancement because his prior 1999 conviction in Texas for illegal reentry in
violation of 8 U.S.C. § 1326 was an aggravated felony. See U.S.S.G.
§ 2L1.2(b)(1)(C) & cmt. n.3(A) (providing for an eight-level increase if the
defendant was previously deported after being convicted of an aggravated felony
as defined in 8 U.S.C. § 1101(a)(43)); see also 8 U.S.C. § 1101(a)(43)(O) (listing
as an “aggravated felony” an “offense described in” 8 U.S.C. § 1326 “committed
by an alien who was previously deported on the basis of a conviction for an offense
described in another subparagraph of this paragraph”). 1 Indeed, the district court
stressed that whether Hinkson’s 1984 Boston conviction was a felony or a

1

In 1988, Hinkson was convicted in Massachusetts of assault and battery on a police
officer. Hinkson served a one-year prison sentence, after which he was deported to Jamaica.
Hinkson subsequently was deported from the United States four more times (in 1991, 1995, 1996
and 2006) and was convicted of illegal reentry three times (in 1990, 1995 and 1999).
Hinkson’s last illegal reentry conviction occurred in the Eastern District of Texas in
1999. At that time, Hinkson was sentenced as an aggravated felon under 8 U.S.C. § 1326(b)(2)
because he had reentered the United States after having been convicted of a crime of violence
(his 1988 assault and battery offense) and deported. In this case, at both his sentencing and in his
appeal brief to this Court, Hinkson conceded that his 1999 illegal reentry conviction is an
aggravated felony under U.S.S.G. § 2L1.2.
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misdemeanor did not matter because his Texas illegal reentry conviction supported
the eight-level enhancement.
Accordingly, any alleged error in accepting the PSI’s characterization of the
Boston conviction as a felony was harmless and would not warrant a remand. See
Williams v. United States, 503 U.S. 193, 203, 112 S. Ct. 1112, 1120-21 (1992)
(explaining that remand based on a misapplication of the Sentencing Guidelines is
not required where the reviewing court concludes, based on the record as a whole,
“that the error did not affect the district court’s selection of the sentence
imposed”). Thus, we affirm Hinkson’s 48-month sentence.
AFFIRMED.

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