US v. Kenneth Hinson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:07-cr-00485-TLW-1 Copies to all parties and the district court/agency. [998647325].. [10-4713]

Appeal: 10-4713

Document: 40

Date Filed: 08/04/2011

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4713

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)

Submitted:

July 27, 2011

Decided:

August 4, 2011

Before NIEMEYER, AGEE, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael
Chesser,
Aiken,
South
Carolina,
for
Appellant.
William N. Nettles, United States Attorney, Robert F. Daley,
Jr., Assistant United States Attorney, Columbia, South Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Kenneth

Glenn

Hinson

was

convicted

of

unlawful

possession of a firearm by a convicted felon and sentenced to a
term of 115 months’ imprisonment. *

Hinson appeals his sentence,

arguing that the court erred in finding that he possessed the
firearm

in

connection

Guidelines

Manual

discretion
varying

in

with

§ 2K2.1(b)(6)

departing

upward

another

pursuant

felony,

(2009),

upward

under

to

U.S.C.

18

USSG

U.S.
and

Sentencing
abused

§ 4A1.3,

§ 3553(a)

its

p.s.

and

(2006).

We

affirm.
A

sentence

is

reviewed

abuse of discretion standard.
38, 51 (2007).

for

reasonableness

under

an

Gall v. United States, 552 U.S.

This review requires consideration of both the

procedural and substantive reasonableness of a sentence.

Id.;

see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).
The court must first ensure that the district court did not
commit any “significant procedural error,” such as failing to
properly calculate the applicable Guidelines range, failing to
consider

the

18

U.S.C.A.

§ 3553(a)

*

(West

2000

&

Supp.

2006)

The district court initially sentenced Hinson as an armed
career criminal to 300 months imprisonment.
18 U.S.C.A.
§ 924(e) (West 2000 & Supp. 2011). In his first appeal, we held
that he lacked the necessary predicate convictions for an armed
career criminal sentence and remanded the case for resentencing.
United States v. Hinson, 363 F. App’x 998 (4th Cir. 2010).

2

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factors, or failing to explain the sentence adequately.
552

U.S.

at

51.

If

the

sentence

is

free

of

Gall,

significant

procedural error, the appellate court reviews the substantive
reasonableness of the sentence.
Section 2K2.1(b)(6)

Lynn, 592 F.3d at 575.
provides

for

a

four-level

enhancement “[i]f the defendant used or possessed any firearm or
ammunition in connection with another felony offense.”
§ 2K2.1(b)(6).

USSG

“[T]he purpose of Section 2K2.1(b)(6) [is] to

punish more severely a defendant who commits a separate felony
offense that is rendered more dangerous by the presence of a
United States v. Jenkins, 566 F.3d 160, 164 (4th Cir.

firearm.”

2009) (internal quotation marks omitted).
“‘Another felony offense,’ for purposes of subsection
(b)(6),

means

any

federal,

punishable

by

regardless

of

whether

or

for

term

imprisonment

state,

conviction obtained.”

a

a

criminal

local

offense[]

exceeding

charge

was

USSG § 2K2.1 cmt. n.14(C).

one

brought,

. . .
year,
or

a

A firearm is

used or possessed “in connection with” another felony offense if
it

“facilitated,

offense.

or

had

the

potential

of

facilitating,”

the

Id. cmt. n.14(A); see Jenkins, 566 F.3d at 162-63.

“[I]n the case of a drug trafficking offense in which a firearm
is found in close proximity to drugs, . . . application of [the
four-level enhancement] is warranted because the presence of the
firearm has the potential of facilitating another felony offense
3

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. . . .”

Date Filed: 08/04/2011

Page: 4 of 7

USSG § 2K2.1 cmt. n.14(B); see Jenkins, 566 F.3d at

163.
The district court determined that the enhancement was
warranted because Hinson had testified under oath at his state
trial on other charges that he was a drug dealer and that he
fled his home because he thought law enforcement officers knew
about four pounds of marijuana he had stored in his basement.
In addition, the district court considered Hinson’s post-arrest
statement to law enforcement officers that he always had a gun
with him.
we

Based on the uncontested evidence before the court,

conclude

that

the

district

court

did

not

clearly

err

in

finding that Hinson was selling marijuana and that the firearm
he

possessed

had

the

potential

to

facilitate

that

activity.

Therefore, the district court properly applied the four-level
enhancement under USSG § 2K2.1(b)(6).
Next,

we

review

the

district

court’s

departure

by

considering “whether the sentencing court acted reasonably both
with respect to its decision to impose such a sentence and with
respect
range.”
123

to

the

extent

of

the

divergence

from

the

sentencing

United States v. Hernandez-Villanueva, 473 F.3d 118,

(4th Cir. 2007).

Under

USSG

§ 4A1.3(a)(1),

the

district

court may upwardly depart from the Guidelines sentence if the
court determines that “the defendant’s criminal history category
substantially

under-represents
4

the

seriousness

of

the

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defendant’s

Date Filed: 08/04/2011

criminal

history

or

Page: 5 of 7

the

likelihood

defendant will commit other crimes[.]”
prior

sentences

category.

not

used

in

that

the

The court may consider

computing

the

criminal

history

See USSG § 4A1.3(a)(2)(A).
The district court considered two sentences that were

too old to be counted:

one for aggravated assault and battery;

and one for cocaine trafficking.

Hinson points out that a prior

sentence not counted in the defendant’s criminal history because
it is too old, i.e., outside the applicable time period set out
in § 4A1.2, may be the basis for a departure only if the old
conviction involved similar or serious dissimilar conduct.
USSG § 4A1.2 cmt. n.8.

See

The district court specifically declined

to find that the prior criminal conduct underlying the uncounted
sentences was similar to Hinson’s § 922(g)(1) conviction, but
found that the offenses were “very serious.”
Hinson
assault

and

sufficiently

argues

battery
serious

that
and

to

the

prior

cocaine
warrant

a

offenses,

aggravated

trafficking,
departure

were

not

because

the

aggravated assault occurred at least twenty years before the
instant

offense

and

the

cocaine

trafficking

only possession of eleven grams of cocaine.

offense

involved

However, the age of

the assault and battery does not lessen its seriousness; the
presentence report states that Hinson struck another man with a
car

jack.

Moreover,

Hinson
5

appears

to

understate

the

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seriousness of his cocaine trafficking offense.
this

appeal

does

not

disclose

the

exact

The record in

quantity

of

cocaine

involved in Hinson’s cocaine trafficking offense but, from the
available information, it appears that it was more than eleven
grams.

We

conclude

that

the

district

court

reasonably

determined that both of Hinson’s uncounted sentences were for
serious criminal conduct and that criminal history category II
significantly
risk

of

under-represented

recidivism.

reasonable.

his
the

Thus,

criminal

history

decision

his

depart

to

and

was

Moreover, in departing, the district court followed

the incremental approach set out in § 4A1.3(a)(4)(A), and the
extent of the departure was reasonable.
After departing upward, the district court announced
that it would also vary upward by two levels.
that

the

variance

was

both

procedurally

Hinson maintains
and

substantively

unreasonable because, in his view, the court relied again on the
uncounted sentences which were the basis for the departure to
justify

a

further

mischaracterizes
court

noted

the

Hinson’s

increase
court’s

in
reasons

propensity

to

his
for

sentence.
the

commit

variance.

new

crimes

Hinson
The
after

incarceration, and to commit violent crimes, first against an
adult, then against a child.

The court also reviewed the §

3553(a) factors in light of the undisputed record and stated
that an upward variance was necessary to reflect the seriousness
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of the instant offense, promote respect for the law, provide
adequate deterrence to criminal conduct, and protect the public
from further crimes of the defendant.

Alternatively, the court

found that the testimony of the four witnesses who testified at
sentencing that Hinson had sexually abused them when they were
children had sufficient indicators of reliability to justify a
two-level variance.
Thus, the court’s first ground for a variance was not
simply the fact of Hinson’s prior uncounted offenses, but his
failure to be deterred by prior incarcerations and the nature of
his offenses.

The court’s second ground was credible evidence

of a number of sexual crimes Hinson had committed, only one of
which he had been convicted and punished for.

We are satisfied

that the court’s variance was reasonable on either ground and
the

resulting

sentence

was

procedurally

and

substantively

reasonable.
We
district
facts

court.

and

materials

therefore

legal
before

We

affirm

dispense

the
with

sentence
oral

argument

contentions

are

adequately

the

and

argument

court

imposed

by

the

because

the

presented

would

not

in

the

aid

the

decisional process.

AFFIRMED

7