United States v. Marvin Hick

Filing

PER CURIAM OPINION FILED - THE COURT: James B. Loken, C. Arlen Beam and Lavenski R. Smith (UNPUBLISHED) [4447475] [15-2521]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-2521
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Marvin Hicks
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
____________
Submitted: April 11, 2016
Filed: September 13, 2016
[Unpublished]
____________
Before LOKEN, BEAM, and SMITH, Circuit Judges.
____________
PER CURIAM.
Marvin Hicks pleaded guilty to being a felon in possession of a firearm and
now appeals the 70-month sentence imposed by the district court.1 Hicks argues the

1

The Honorable Linda R. Reade, Chief Judge of the United States District
Court for the Northern District of Iowa.

Appellate Case: 15-2521

Page: 1

Date Filed: 09/13/2016 Entry ID: 4447475

court procedurally erred in applying a four-level enhancement for possessing a
firearm “in connection with another felony offense,” U.S.S.G. § 2K2.1(b)(6)(B), and
that his sentence is substantively unreasonable. We affirm.
Hicks was a front seat passenger in a vehicle stopped by the police in Cedar
Rapids, Iowa, on August 1, 2011. After the stop, Hicks tossed a loaded .38 caliber
revolver to the back seat passengers, but the police found the firearm under the left
rear seat. Having a prior felony conviction for delivery of crack cocaine, Hicks was
charged with and pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court determined that
his advisory guidelines sentencing range was 70 to 87 months in prison, applying the
four-level § 2K2.1(b)(6)(B) enhancement.
Section 2K2.1(b)(6)(B) provides for a four-level enhancement if a defendant
“used or possessed [the] firearm . . . in connection with another felony offense.”
“Another felony offense” is defined as “any federal, state, or local offense, other than
the explosive or firearms possession or trafficking offense, punishable by
imprisonment for a term exceeding one year, regardless of whether a criminal charge
was brought, or a conviction obtained.” § 2K2.1 comment. (n. 14(C)) (emphasis
added). We construe this application note as excluding “only the underlying firearms
possession offense of conviction,” and a state offense if the defendant “could not
have committed the underlying federal offense without also violating the state
offense.” United States v. Jackson, 633 F.3d 703, 705-07 (8th Cir.), cert. denied, 536
U.S. 1027 (2011).
In this case, the district court ruled that Hicks used or possessed the firearm “in
connection with” a violation of Iowa Code § 724.4(1). This statute provides, as
relevant here, that “a person who . . . knowingly carries or transports in a vehicle a
pistol or revolver, commits an aggravated misdemeanor.” The Iowa crime is a felony
offense for purposes of the § 2K2.1(b)(6)(B) enhancement because it is punishable
-2-

Appellate Case: 15-2521

Page: 2

Date Filed: 09/13/2016 Entry ID: 4447475

by up to two years of imprisonment. See United States v. Walker, 771 F.3d 449, 451
(8th Cir. 2014), cert. denied, 135 S. Ct. 1538 (2015). In Walker, we held that a
violation of Iowa Code § 724.4(1) is “another felony offense” for purposes of
§ 2K2.1(b)(6)(B) because a federal felon-in-possession offender is “not doomed to
automatically commit” this state felony offense; it requires additional proof that he
carried a concealed weapon, or carried a pistol or revolver “within the limits of any
city” or “in a vehicle.” 771 F.3d at 452.
On appeal, as at sentencing, Hicks concedes that he violated Iowa Code
§ 724.4(1) by carrying the firearm in a vehicle and therefore our decision in Walker
applies. But he argues that Walker was wrongly decided and “will result in a lot of
double-punishing of the act of possession in Iowa cases.” However, our panel is
bound by the controlling decision in Walker. See United States v. Boots, 816 F.3d
971, 975 (8th Cir. 2016), petition for cert. filed, No. 16-5233 (U.S. July 11, 2016).
Therefore, we conclude, the district court properly applied the four-level
§ 2K2.1(b)(6)(B) enhancement.
Hicks further argues that his 70-month sentence is substantively unreasonable
because the court did not properly take into account mitigating factors, including his
difficult upbringing. We review sentences under a “highly deferential” abuse-ofdiscretion standard. United States v. Roberts, 747 F.3d 990, 992 (8th Cir. 2014). If
a sentence is within the Guidelines range, as in this case, it is “presumptively
reasonable.” United States v. Cromwell, 645 F.3d 1020, 1022 (8th Cir. 2011). The
district court explicitly weighed Hicks’s “lack of parental guidance as a youth” and
other mitigating factors against his extensive criminal history, his “struggle[s] with
correctional supervision,” and his failure to complete probation after a lenient state
court sentence. The court found no basis for a downward variance and sentenced
Hicks to the bottom of his advisory guidelines range. “The district court has wide
latitude to weigh the [18 U.S.C.] § 3553(a) factors in each case and assign some
factors greater weight than others in determining an appropriate sentence.” United
-3-

Appellate Case: 15-2521

Page: 3

Date Filed: 09/13/2016 Entry ID: 4447475

States v. Bridges, 569 F.3d 374, 379 (8th Cir. 2009). After closely reviewing the
sentencing record, we conclude there was no abuse of the district court’s substantial
sentencing discretion.
The judgment of the district court is affirmed.
______________________________

-4-

Appellate Case: 15-2521

Page: 4

Date Filed: 09/13/2016 Entry ID: 4447475