US v. Kenneth Hinson

Filing 920100202

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4875

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KENNETH GLENN HINSON, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, District Judge. (4:07-cr-00485-TLW-1)

Argued:

December 2, 2009

Decided:

February 2, 2010

Before NIEMEYER and AGEE, Circuit Judges, and John Preston BAILEY, Chief United States District Judge for the Northern District of West Virginia, sitting by designation.

Vacated and remanded for resentencing by unpublished opinion. Judge Bailey wrote the opinion, in which Judge Niemeyer and Judge Agee joined.

ARGUED: Michael Williams Chesser, Aiken, South Carolina, for Appellant. Rose Mary Sheppard Parham, OFFICE OF THE UNITED STATES ATTORNEY, Florence, South Carolina, for Appellee. ON BRIEF: W. Walter Wilkins, United States Attorney, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

BAILEY, Chief District Judge: The issue presented by this appeal is whether the

defendant's 1989 South Carolina conviction for trafficking in cocaine may be used in determining that the defendant is an Armed Career Criminal for purposes of 18 U.S.C. § 924(e). We

determine that the conviction may not be used to enhance the defendant's resentencing. sentence and, therefore, remand this case for

I. On March 17, 2006, Kenneth Glenn Hinson (Hinson) was

arrested in Darlington County, South Carolina, on outstanding state arrest warrants. At the time of his arrest, officers

found a Hi-Point 9 millimeter semi-automatic pistol tucked into his waistband at the small of his back. indicted on one count of being a Hinson was subsequently in possession of a

felon

firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and 924(e). On November 8, 2007, a federal jury convicted Hinson of

felon in possession of a firearm and ammunition after a one day trial. Prior to sentencing, the United States Probation Office

determined that Hinson was an Armed Career Criminal for purposes of § 924(e). As an Armed Career Criminal, the possible sentence

was increased from a maximum of ten (10) years, to a minimum of 2

fifteen (15) years and a maximum of life, with a guideline range of 262 to 327 months. sentencing follows: court to be The three convictions found by the qualifying predicate and offenses are as

(1) in

1983

Aggravated and

Assault (3) 1991

Battery; Degree

(2)

1989

Trafficking

Cocaine;

Second

Criminal

Sexual Conduct. Hinson admits that two of the three convictions qualify as predicate offenses under 18 U.S.C. § 924(e) (Armed Career

Criminal Act or ACCA).

The predicate conviction to which Hinson

objects, and which forms the basis of this appeal, is his 1989 trafficking conviction. Hinson objected to the inclusion of the

conviction as a predicate offense before the district court, but the Court overruled the objection, finding that United States v. Brandon, 247 F.3d 186 (4th Cir. 2001) did not apply to Hinson's South Carolina trafficking conviction; and, in the alternative, the search warrant return from Hinson's trafficking case was a comparable judicial record that could be considered under

Shepard v. United States, 544 U.S. 13 (2005). 1

The sentencing

The search warrant return included the following: nine five-dollar bills, forty-nine one-hundred dollar bills, eight ten-dollar bills, fifty-eight twenty-dollar bills, fifty-two one-dollar bills, three small plastic bags containing a large quantity of white powder, a brown medicine bottle containing four plastic bags with white powder, one pack of rolling papers, one cellophane bag containing a green leafy substance, one Uniden radar detector, one wallet containing various identification cards, one razor blade, one H & R 22 caliber (Continued) 3

1

court

overruled

the

remainder

of

defendant's

objections

and

sentenced defendant to 300 months imprisonment, five (5) years of supervised release, and a $100.00 special assessment.

II. This Court reviews de novo whether a previous conviction qualifies as a predicate offense under the Armed Career Criminal Act. 2009). United States v. Harcum, 587 F.3d 219, 222 (4th Cir. "The Government bears the burden of proving an ACCA Id.

predicate offense by a preponderance of the evidence."

"The ACCA mandates a minimum fifteen-year prison sentence for a person and who who is `has convicted three of unlawful possession ... of for a a

firearm,

previous

convictions

violent felony or a serious drug offense, or both, committed on occasions different from one another.' Id. under 18 U.S.C. § 924(e)(1)."

The ACCA defines a "serious drug offense" as "an offense State law, with involving intent ... to manufacturing, manufacture for which a distributing, or distribute, term or a of

possessing controlled

substance

maximum

pistol model 922, North American .22 caliber ammunition, 22 bullets, one pack yellow twist ties, two boxes of plastic bags, two boxes of trash bags, strips of plastic bags and numerous white twist ties. J.A., pp. 185-186. 4

imprisonment of ten years or more is prescribed by law." U.S.C.A. § 924(e)(2)(A)(ii). "In predicate applicable assessing offense, known whether two as an offense of constitutes are an

18

ACCA

types the

analyses

potentially and the

`categorical' Id.

approach

`modified categorical' approach."

We must first utilize the categorical approach. approach, we analyze the offense "generically -

Under that is, by

that

relying solely on its essential elements, rather than on the particular underlying facts." Id.; United States v. White, 571 F.3d 365, 368 (4th Cir. 2009) (citing James v. United States, 550 U.S. 192, 208 (2007)). Under the categorical approach, the sentencing court may look only to the fact of conviction and the statutory definition of the offense of conviction to determine whether the offense is a "serious drug offense" or a "violent felony." Id., citing Shepard v. United States, 544 U.S. 13, 17

(2005) and Taylor v. United States, 495 U.S. 575, 600-02 (1990). "Although the Supreme Court has expressed its preference for the categorical approach, that approach does not always

reveal the nature of the asserted predicate offense encountered by a sentencing court. in Shepard and Taylor, of Thus, pursuant to the Court's decisions when the the fact of are conviction unduly and vague the or

statutory

definition

offense

ambiguous, a sentencing court is entitled to turn to and apply 5

the

alternative

`modified

categorical'

approach.

See

Shepard,

544 U.S. at 20, 26; Taylor, 495 U.S. at 602.

In its 1990 Taylor

decision, for example, the Supreme Court was unable, under the categorical approach, to determine whether Taylor's burglary

offense qualified as a `violent felony' under the ACCA, because the record did not reflect which specific state burglary statute was applicable, and not all of the state's burglary statutes involved criminal conduct that would qualify as an ACCA violent felony. See 495 U.S. at 578 n. 1, 602. Thus, the Court

recognized that a sentencing court is entitled, in the proper circumstances, to go beyond the scope of the categorical

approach and assess the underlying charging documents or jury instructions to ascertain whether the offense qualifies as an ACCA predicate offense. See id. at 602 (utilizing modified

categorical approach for cases involving jury convictions); see also Shepard, to 544 U.S. 13 (expanding plea modified categorical Harcum,

approach

situations

involving

agreements)."

supra at 223. The statute under which Hinson was convicted in 1989

provides that "[a]ny person who knowingly sells, manufactures, delivers or brings into this State, or who provides financial assistance manufacture or or otherwise deliver aids, or bring abets into or conspires State, to or sell, who is

this

knowingly in actual or constructive possession of . . . ten 6

grams or more of cocaine or any mixtures containing cocaine . . . is guilty of a felony known as trafficking in cocaine . . .." S.C. Code § 44-53-370(e)(2). This statute may be violated both by conduct that falls within the ACCA definition of "serious drug felony" and conduct that does not fall within the definition; thus, we turn to the indictment. 2001). The indictment underlying the 1989 conviction charges that "Kenneth Hinson did in Darlington County on or about the 18th day of November, of 1988 , to unlawfully wit: more and knowingly (10) possess a United States v. Brandon, 247 F.3d 186 (4th Cir.

quantity

cocaine,

than

grams,

such

substance being a controlled substance in violation of section 44-53-370(E)(2) of the 1976 Code of Laws of South Carolina." J.A. 180. Based upon the foregoing, it would appear that the 1989 conviction involved only possession, not possession with intent to distribute, and would not satisfy the requirements of a

predicate sentence under the ACCA.

See Brandon, supra at 189.

In Brandon, this Court went further to determine whether the prior conviction involved possession with intent to

distribute, even if not a formal element of the crime under state law. The Brandon Court noted that "[i]n cases where

enhancement under section 924(e) is hinged not on the elements 7

of

the underlying

crime

but

on

whether the

the

crime

`involves' in

particular

conduct,

courts

follow

approach

outlined

Taylor and ask whether the proscribed conduct is an inherent part or result of the generic crime of conviction, without

regard to the facts surrounding the underlying conviction, or, stated somewhat differently, whether the abstract crime

intrinsically involves the proscribed conduct." 191. In Brandon, we held that intent to

247 F.3d at

distribute

is

not

inherent in the generic conduct of trafficking by possession where the amount of cocaine possessed was 28 grams. then, that intent to distribute is not It follows, in the

inherent

possession of 10 grams of cocaine. The Government urges this Court to determine the character of the previous conviction by reference to the return of the search warrant. 2 the Specifically, search warrant is the a Government judicial argues that it is

"[b]ecause

record,

admissible under Shepard."

Response Brief at 16.

Under the

facts of this case, we disagree. "When, as here, the underlying statute prohibits both

qualifying and non-qualifying offenses, the sentencing court may `determin[e] the character of' the prior offense by `examining The Government concedes that no other relating to the 1989 conviction can be located. 8
2

documentation

the

statutory

definition,

charging

document,

written

plea

agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented,' United States v. Maroquin-Bran, 544 U.S. 587 at F.3d 16), 214, or 218 (4th Cir.

2009)(quoting

Shepard,

"some

comparable

judicial record of this information." Consideration of the return of

Shepard, 544 U.S. at 26. the search warrant is

foreclosed by Shepard.

In United States v. Harcum, 587 F.3d

219, 224 (4th Cir. 2009), we held that "the Supreme Court has barred a sentencing court from considering unreliable evidence, which includes materials that are outside the record of the

court of conviction.

See Shepard, 544 U.S. at 20-23 (barring

sentencing court from considering police report and complaint application, which extended `beyond conclusive records made or used in adjudicating guilt'). More specifically, in assessing

whether the offense of conviction is a predicate offense under the ACCA, a sentencing court may, under the modified categorical approach, appropriately consider only `the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.' Id. at 16." 3

Subsequent to the Court's Shepard decision, this Court approved a sentencing court's utilization, under the modified categorical approach, of certain "external documents" - beyond (Continued) 9

3

A search warrant return is not a judicial record comparable to this narrow own range of documents, or which memorialize findings of "the fact

defendant's

admissions

accepted

confirming the factual basis for a valid plea."

Id. at 25.

Like the "warrant affidavit" considered by the Sixth Circuit in United States v. McGrattan, 504 F.3d 608 (6th Cir. 2007), a search warrant return is more "akin to the police report" deemed "inadmissible in Shepard" than it is to a "charging document," as the search return is not filed "in furtherance of formal prosecution and thus does not determine whether an earlier plea or conviction was for a [particular] offense." (quotations omitted). Hinson's sentence must be vacated and this case remanded to the District Court for resentencing consistent with this 504 F.3d at 616

opinion. VACATED AND REMANDED FOR RESENTENCING

the scope of otherwise permissible items - because they were "explicitly incorporated" into permissible documents. See United States v. Simms, 441 F.3d 313, 317 (4th Cir. 2006). There is no contention here that the return of search warrant was "explicitly incorporated" into a permissible document.

10