US v. Colin Hawkin

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:16-cr-00015-JPJ-PMS-1 Copies to all parties and the district court/agency. [1000139847].. [16-4808]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4808

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
COLIN HAWKINS,
Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at
Abingdon. James P. Jones, District Judge. (1:16-cr-00015-JPJ-PMS-1)

Submitted: July 28, 2017

Decided: August 18, 2017

Before KEENAN and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Helen Eckert Phillips, PHILLIPS & THOMAS, PLLC, Abingdon, Virginia, for
Appellant. Rick A. Mountcastle, Acting United States Attorney, Jean B. Hudson,
Assistant United States Attorney, Charlottesville, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Following a jury trial in which he represented himself, Colin Hawkins was
convicted of one count of mailing a threatening communication, in violation of 18 U.S.C.
§ 876 (2012). The district court imposed a 48-month sentence, which was an upward
variance from Hawkins’ Sentencing Guidelines range of 15-21 months. Hawkins timely
appeals, challenging the district court’s computation of his criminal history score and the
substantive reasonableness of the upward variance. We affirm.
Hawkins first asserts that his prior Maryland convictions should not have been
counted in the computation of his criminal history score because, at the time of those
convictions, he was not represented by counsel. We disagree.
While a defendant may challenge the validity of a prior conviction on the ground
that he was denied counsel, see Custis v. United States, 511 U.S. 485, 495-96 (1994),
Hawkins bears the heavy burden of showing that the prior conviction is invalid on this
basis, United States v. Jones, 977 F.2d 105, 110-11 (4th Cir. 1992). See United States v.
Hondo, 366 F.3d 363, 365 (4th Cir. 2004) (“[E]ven when an arguable Custis challenge is
raised, the defendant bears an especially difficult burden of proving that the conviction
was invalid.”). Specifically, Hawkins bore the burden to overcome the presumption that
the state court informed him of his right to counsel, as it was required to do, and that, if
he was not represented, it was because he waived his right to counsel. * See Parke v.

*

A criminal defendant’s right to counsel is protected by the Sixth Amendment to
the United States Constitution and by Article 21 of the Maryland Declaration of Rights,
Dykes v. State, 121 A.3d 113, 116 (Md. 2015), and the relevant notice provisions are
(Continued)
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Raley, 506 U.S. 20, 28-34 (1992) (holding presumption of regularity that attaches to final
judgments makes it appropriate for defendant to have burden of showing irregularity of
prior plea). Hawkins clearly did not meet this burden in this case. He submitted neither
documentary evidence nor testimony at the sentencing hearing to establish that he was
convicted, in either instance, in a manner that violated his constitutional right to counsel.
Cf. Jones, 977 F.2d at 110-11 (explaining why defendant’s “vague [and] inconclusive
testimony” about distant events was insufficient to carry his burden of showing invalidity
of prior conviction). We conclude that, in the absence of any contrary evidence, the
district court properly rejected Hawkins’ claims based on the presumption that the
relevant Maryland court rules were followed in the challenged cases.
Hawkins next challenges the substantive reasonableness of the 48-month upward
variant sentence. In reviewing the substantive reasonableness of a sentence, this Court
“take[s] into account the totality of the circumstances, including the extent of any
variance from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007).
While “[a] major departure from the advisory range ‘should be supported by a more
significant justification than a minor one,’” United States v. Morace, 594 F.3d 340, 346

currently codified in Md. Rules 4-213 & 4-213.1. Maryland law also has codified the
specific, mandatory process that must be employed before a defendant is permitted to
waive his right to counsel. See Md. R. 4-215; Parren v. State, 523 A.2d 597, 607 (Md.
1987) (holding that “the requirements of Rule 4-215 are to be construed as mandatory”).
“Maryland Rule 4-215 implements a defendant’s right to waive counsel, and incorporates
safeguards to ensure that the defendant is acting knowingly and voluntarily in making
that choice.” Dykes, 121 A.3d at 118.

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(4th Cir. 2010) (quoting Gall, 552 U.S. at 50), “district courts have extremely broad
discretion when determining the weight to be given each of the [18 U.S.C.] § 3553(a)
[(2012)] factors,” United States v. Jeffery, 631 F.3d 669, 679 (4th Cir. 2011).
Hawkins’ primary argument is that the upward variance is substantively
unreasonable.

He maintains that the variance is inconsistent with the four-level

Guidelines reduction because the underlying crime involved a single instance of conduct
that evidenced “little or no deliberation.”

U.S. Sentencing Guidelines Manual

§ 2A6.1(b)(6) (2016).
However, the court imposed the upward variance based on factors beyond the
basis for this reduction. The reduction applies when, along with the absence of certain
aggravating factors, “the offense involved a single instance evidencing little or no
deliberation.” USSG § 2A6.1(b)(6). By contrast, in accord with 18 U.S.C. § 3553(a),
the district court offered multiple reasons for the variant sentence. First, the district court
identified that an upward variance was warranted in light of Hawkins’ persistence in his
position that he was intoxicated when he wrote the threatening letter. This position both
was untenable based on the lack of any indicia of intoxication, and reflected Hawkins’
overall refusal to accept responsibility for his actions. The court also found an upward
variance was necessary to account for Hawkins’ lack of remorse and the impact a death
threat has on the criminal justice system. Finally, a longer sentence was warranted, in the
court’s view, to protect the public from future crimes by Hawkins, who consistently
showed himself unwilling to conform his conduct to the law even during his period of
incarceration.
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The record establishes the district court’s thorough and well-reasoned basis for
varying upward from Hawkins’ Guidelines range of 15-21 months to impose a 48-month
sentence. In light of the deference accorded to a district court’s sentencing decision, we
hold that Hawkins has failed to establish that his sentence is substantively unreasonable.
See United States v. Hargrove, 701 F.3d 156, 163-64 (4th Cir. 2012) (affirming 60-month
upward variant sentence imposed on defendant whose assumed Guidelines range was 0-6
months); see also United States v. Angle, 598 F.3d 352, 359 (7th Cir. 2010) (“All that
matters is that the sentence imposed be reasonable in relation to the ‘package’ of reasons
given by the court . . . .”).
Accordingly, we affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately presented in the
materials before this Court and argument would not aid the decisional process.
AFFIRMED

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