UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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
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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
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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
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