UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4185
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KHALEEL ALI HILLIARD,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:06-cr-00156-NCT-1)
Submitted: September 29, 2011 Decided: October 4, 2011
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
George E. Crump, III, Rockingham, North Carolina, for Appellant.
John Stuart Bruce, OFFICE OF THE UNITED STATES ATTORNEY, William
Miller Gilmore, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Khaleel Ali Hilliard was convicted following his guilty
plea to bank robbery, in violation of 18 U.S.C. § 2113(a) (2006).
The district court sentenced Hilliard to 188 months of
imprisonment. Counsel has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), stating that there are
no meritorious issues for appeal, but raising the issue of whether
the district court improperly sentenced him as a career offender
when one of the predicate convictions was not punishable by
imprisonment for a term exceeding one year under North Carolina
law. In light of United States v. Simmons, 649 F.3d 237, 2011 WL
3607266 (4th Cir. Aug. 17, 2011) (en banc), we vacate the sentence
and remand, but affirm Hilliard’s conviction.
This court reviews a sentence for reasonableness under an
abuse of discretion standard. Gall v. United States, 552 U.S. 38,
51 (2007). This review requires appellate consideration of both
the procedural and substantive reasonableness of a sentence. Id.
Procedural reasonableness is determined by reviewing whether the
district court properly calculated the defendant’s advisory
Guidelines range and then considered the 18 U.S.C. § 3553(a) (2006)
factors, analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Id. at 49-51.
“Regardless of whether the district court imposes an above, below,
or within-Guidelines sentence, it must place on the record an
‘individualized assessment’ based on the particular facts of the
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case before it.” United States v. Carter, 564 F.3d 325, 330 (4th
Cir. 2009). Finally, this court reviews the substantive
reasonableness of the sentence, “examining the totality of the
circumstances to see whether the sentencing court abused its
discretion in concluding that the sentence it chose satisfied the
standards set forth in § 3553(a).” United States v.
Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010), cert. denied,
131 S. Ct. 3078 (2011).
Hilliard challenges the district court’s designation of
him as a career offender on the ground that the court erred in
finding that a prior North Carolina conviction for possession with
intent to sell and deliver cocaine counted as a conviction with a
sentence greater than one year for career offender purposes.*
Hilliard received a six to eight month sentence for the offense.
Section 4B1.1 of the Sentencing Guidelines defines a career
offender as a defendant who (1) was at least eighteen years old
when he committed the instant offense, (2) is convicted of a felony
“that is either a crime of violence or a controlled substance
offense,” and (3) “has at least two prior felony convictions of
either a crime of violence or a controlled substance offense.”
USSG § 4B1.1(a). This court reviews de novo the district court’s
classification of Hilliard as a career offender and reviews for
*
Hilliard concedes that he has one qualifying felony of
felony assault on a police officer, but argues that none of his
remaining convictions qualify as a felony.
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clear error its factual findings. United States v. Farrior, 535
F.3d 210, 223 (4th Cir. 2008).
When Hilliard raised this argument in the district court,
it was foreclosed by this court’s decision in United States v.
Harp, 406 F.3d 242 (4th Cir. 2005). Subsequently, however, this
court overruled Harp with the en banc decision in Simmons, in which
the court determined that the evaluation of whether a particular
offense was a felony must focus on the maximum sentence for which a
particular defendant was eligible, in light of his criminal
history, rather than the maximum sentence that could be imposed on
a defendant with the worst possible criminal record. Simmons, 2011
WL 3607266 at *6.
In light of the decision in Simmons, we conclude that
Hilliard’s argument has merit. We therefore vacate the district
court’s sentence and remand the case to the district court for
resentencing. Further, because the record on appeal does not
address Hilliard’s prior state record level or whether the state
sentencing court made findings of aggravating or mitigating
circumstances, we do not express an opinion on whether the
convictions qualify as career offender predicates and leave that
determination for the district court on remand. We deny Hilliard’s
counsel’s motion to withdraw as counsel.
In accordance with Anders, we have reviewed the record in
this case and have found no other meritorious issues for appeal.
We therefore affirm Hilliard’s conviction, however vacate the
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sentence, and remand for resentencing. This court requires that
counsel inform Hilliard, in writing, of the right to petition the
Supreme Court of the United States for further review. If Hilliard
requests that a petition be filed, but counsel believes that such a
petition would be frivolous, then counsel may move in this court
for leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Hilliard.
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 IN PART,
VACATED IN PART, AND REMANDED
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