United States v. Hinnant

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4197

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 Carolina law, the district court sentenced Hinnant,

without objection, to 180 months imprisonment. On appeal,

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. For the following

reasons, we affirm.

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. Prior to

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Hinnant’s sentencing, the district court ordered the preparation

of a Presentence Report (PSR). The PSR recommended that Hinnant

be subject to an enhanced sentence under the ACCA.

Specifically, the PSR identified three convictions for breaking

and entering, in 2003, 2004, and 2005. Hinnant was seventeen at

the time of the 2003 and 2004 convictions. Pursuant to the

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 to 180 months imprisonment. Hinnant filed a timely

appeal.

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.

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

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52(b). “To establish plain error, the appealing party must show

that an error (1) was made, (2) is plain (i.e., clear or

obvious), and (3) affects substantial rights.” United States v.

Lynn, 592 F.3d 572, 577 (4th Cir. 2010). 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 several

enumerated crimes, including “burglary.” 18 U.S.C.

§ 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

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to breaking and/or entering in the PSR is insufficient to carry

that burden. We addressed and rejected Hinnant’s argument in

United States v. Lender, 985 F.2d 151 (4th Cir. 1993),

concluding that a defendant’s conviction for breaking and

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).” Id. at 156.

Hinnant’s convictions also satisfy the second

requirement under § 924(e)(2)(B). In Taylor v. United States,

495 U.S. 575 (1990), the Supreme 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.” Id. at

599. Based on this definition, we have held that the North

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

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(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 of § 922(g) “is neither disproportionate to the

offense nor cruel and unusual punishment, and thus does not

violate the Eighth Amendment.” United States v. Presley, 52

F.3d 64, 68 (4th Cir. 1995). See also United States v.

Etheridge, 932 F.2d 318, 323 (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

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materials before the court and argument would not aid the

decisional process.

AFFIRMED