United States v. Kenneth Hinson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4713

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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 with another felony, U.S. Sentencing

Guidelines Manual § 2K2.1(b)(6) (2009), and abused its

discretion in departing upward under USSG § 4A1.3, p.s. and

varying upward pursuant to 18 U.S.C. § 3553(a) (2006). We

affirm.

A sentence is reviewed for reasonableness under an

abuse of discretion standard. Gall v. United States, 552 U.S.

38, 51 (2007). 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).

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factors, or failing to explain the sentence adequately. Gall,

552 U.S. at 51. If the sentence is free of significant

procedural error, the appellate court reviews the substantive

reasonableness of the sentence. Lynn, 592 F.3d at 575.

Section 2K2.1(b)(6) provides for a four-level

enhancement “[i]f the defendant used or possessed any firearm or

ammunition in connection with another felony offense.” USSG

§ 2K2.1(b)(6). “[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

firearm.” United States v. Jenkins, 566 F.3d 160, 164 (4th Cir.

2009) (internal quotation marks omitted).

“‘Another felony offense,’ for purposes of subsection

(b)(6), means any federal, state, or local offense[] . . .

punishable by imprisonment for a term exceeding one year,

regardless of whether a criminal charge was brought, or a

conviction obtained.” USSG § 2K2.1 cmt. n.14(C). A firearm is

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

it “facilitated, or had the potential of facilitating,” the

offense. 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

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. . . .” 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. Based on the uncontested evidence before the court,

we 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 to the extent of the divergence from the sentencing

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

123 (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 the seriousness of the

4
defendant’s criminal history or the likelihood that the

defendant will commit other crimes[.]” The court may consider

prior sentences not used in computing the criminal history

category. 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. See

USSG § 4A1.2 cmt. n.8. 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 argues that the prior offenses, aggravated

assault and battery and cocaine trafficking, were not

sufficiently serious to warrant a departure because the

aggravated assault occurred at least twenty years before the

instant offense and the cocaine trafficking offense involved

only possession of eleven grams of cocaine. 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 appears to understate the

5
seriousness of his cocaine trafficking offense. The record in

this appeal does not disclose the exact 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 under-represented his criminal history and his

risk of recidivism. Thus, the decision to depart was

reasonable. 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. Hinson maintains

that the variance was both procedurally 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 increase in his sentence. Hinson

mischaracterizes the court’s reasons for the variance. The

court noted Hinson’s propensity to commit new crimes 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 therefore affirm the sentence imposed by the

district court. We dispense with oral argument because the

facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the

decisional process.

AFFIRMED