US v. Demethric Hinnant

Filing 920100624

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4197

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DEMETHRIC ANTWAN HINNANT, Defendant ­ Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:08-cr-00265-BO-1)

Submitted:

June 9, 2010

Decided:

June 24, 2010

Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Jane C. Norman, BOND & NORMAN, Washington, D.C., for Appellant. George E. B. Holding, United States Attorney, John Howarth Bennett, Assistant United States Attorney, Greenville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Demethric Antwan Hinnant pleaded guilty, without the benefit of a plea agreement, to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924 (2006). After determining that Hinnant was subject to

the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e) (2006), because he had three convictions for crimes of violence under North without Carolina law, to the 180 district months court sentenced On Hinnant, appeal,

objection,

imprisonment.

Hinnant contends that the district court committed plain error in counting two of the convictions for crimes that occurred when he was seventeen and violated the Eighth Amendment by using

those convictions to enhance his sentence. reasons, we affirm.

For the following

I. On March 20, 2008, the Wilson (North Carolina) Police Department received a tip that two individuals were selling a firearm at a Wilson market. The responding officers saw another

individual and Hinnant, who attempted to flee when approached but was quickly apprehended. The officers recovered a .25

caliber semi-automatic handgun near where Hinnant was arrested. Hinnant pleaded guilty to one count of being a felon in possession, in violation of §§ 922(g)(1) and 924. 2 Prior to

Hinnant's sentencing, the district court ordered the preparation of a Presentence Report (PSR). be subject to an enhanced The PSR recommended that Hinnant sentence under the ACCA.

Specifically, the PSR identified three convictions for breaking and entering, in 2003, 2004, and 2005. Hinnant was seventeen at Pursuant to the

the time of the 2003 and 2004 convictions.

ACCA, Hinnant faced a mandatory minimum sentence of 180 months imprisonment, and his guidelines range was 180 to 210 months imprisonment. * Hinnant filed no objections to the PSR, and at

sentencing, the district court adopted the PSR and sentenced Hinnant appeal. to 180 months imprisonment. Hinnant filed a timely

II. On appeal, Hinnant raises two arguments: that the

district court erred in counting the two convictions obtained when Hinnant was seventeen as predicate violent felonies under the ACCA and that Hinnant's sentence enhancement based on those convictions violates the Eighth Amendment's bar against cruel and unusual punishment. As Hinnant acknowledges, because he

failed to raise either of these arguments before the district court, our review is for plain error.
*

See Fed. R. Crim. P. under the

Without the statutory fifteen-year sentence ACCA, the guidelines range was 168-210 months. 3

52(b). that an

"To establish plain error, the appealing party must show error (1) was made, (2) is plain (i.e., clear or

obvious), and (3) affects substantial rights." Lynn, 592 F.3d 572, 577 (4th Cir. 2010).

United States v. Even assuming the

party satisfies this three-part showing, we may exercise our discretion to correct the error only if it "seriously affects the fairness, integrity or public reputation of judicial

proceedings."

United States v. Massenburg, 564 F.3d 337, 343

(4th Cir. 2009) (internal quotation marks omitted). The term "violent felony" is defined, for purposes of the ACCA, as "any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if

committed by an adult."

18 U.S.C. § 924(e)(2)(B).

In addition,

to qualify as a violent felony, the crime must either "ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another," or be one of 18 several U.S.C.

enumerated

crimes,

including

"burglary."

§ 924(e)(2)(B)(i), (ii). Hinnant contends that because his prior crimes were "juvenile adjudications," the Government had to prove that they involved the use or carrying of a firearm, knife, or destructive device under § 924(e)(2)(B). He asserts the generic reference 4

to breaking and/or entering in the PSR is insufficient to carry that burden. United States that We addressed and rejected Hinnant's argument in v. a Lender, 985 F.2d 151 (4th for Cir. 1993), and

concluding

defendant's

conviction

breaking

entering under North Carolina law when he was seventeen years old satisfied the definition of "violent felony" under

§ 924(e)(2)(B)'s first part.

As we explained in Lender, "if the

state prosecutes an individual as an adult, as it did here, the first part of the "violent felony" definition applies; if the state prosecutes as a juvenile, then the second part applies." Id. at 156. In this case, as in Lender, North Carolina tried

Hinnant as an adult, and, accordingly, as in Lender, Hinnant's two convictions when he was seventeen were "not for a juvenile offense, but for an adult crime punishable by imprisonment for a term exceeding one year -- a violent felony as defined by the first part of section 924(e)(2)(B)." Hinnant's convictions Id. at 156. also satisfy the second

requirement under § 924(e)(2)(B). 495 U.S. 575 (1990), the Supreme

In Taylor v. United States, Court construed the term

"burglary" in § 924(e)(2)(B)(ii) to be "generic burglary," that is, "unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." 599. Id. at

Based on this definition, we have held that the North

Carolina breaking and entering statute, N.C. Gen. Stat. § 14-54 5

(2009),

counts

as

a

predicate

offense

under

the

ACCA.

See

United States v. Thompson, 421 F.3d 278, 284 (4th Cir. 2005); United States v. Bowden, 975 F.2d 1080, 1083-85 (4th Cir. 1992). In the alternative, Hinnant argues that the district court violated the Eighth Amendment by using convictions

obtained when Hinnant was seventeen years old to enhance his sentence to fifteen years' imprisonment. This argument suffers

from the same misapprehension that Hinnant's prior crimes were handled as juvenile adjudications of delinquency and not as

adult criminal convictions.

Further, we have held, on numerous

occasions, that the fifteen-year sentence under the ACCA for a violation offense of § 922(g) cruel and "is neither disproportionate and thus to does the not

nor

unusual

punishment,

violate the Eighth Amendment." F.3d 64, 68 932 (4th F.2d Cir. 318, 1995). 323

United States v. Presley, 52 See also United States v.

Etheridge,

(4th

Cir.

1991)

(same);

United

States v. Crittendon, 883 F.2d 326, 331 (4th Cir. 1989) (same).

III. For the foregoing reasons, we affirm Hinnant's

conviction and sentence.

We dispense with oral argument because

the facts and legal contentions are adequately presented in the

6

materials

before

the

court

and

argument

would

not

aid

the

decisional process. AFFIRMED

7