United States v. Khaleel Hilliard

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4180

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

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 28, 2012 Decided: October 11, 2012

Before KING, GREGORY, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

George E. Crump, III, Rockingham, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Khaleel Ali Hilliard pleaded guilty to one count of

credit union robbery, in violation of 18 U.S.C. § 2113(a)

(2006), pursuant to a written plea agreement. Hilliard was

sentenced in 2006. As a result of 28 U.S.C.A. § 2255 (West

Supp. 2012) relief, Hilliard was resentenced, however his

sentence was vacated on appeal in light of United States v.

Simmons, 649 F.3d 237 (4th Cir. 2011). Hilliard was

re-sentenced on February 2, 2012. After consideration of

Simmons, Hilliard no longer qualified as a career offender.

However, the court imposed a two-level enhancement for

obstruction of justice, which it previously found at the 2006

sentencing, but did not apply because the enhancement was moot

due to Hilliard’s career offender status. At re-sentencing the

court also departed upward one criminal history category.

Hilliard received a 150-month sentence. Finding no error, we

affirm.

Hilliard argues that the district court improperly

applied a two-level enhancement for obstruction of justice under

U.S. Sentencing Guidelines Manual § 3C1.1 (2006) for his attempt

at having a witness perjure herself regarding whether he kicked

a door in to enter her apartment while fleeing the crime or

whether she permitted him inside. He contends that the

conversation he had with Government witness William Greene to

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persuade Karen White to testify that she permitted Hilliard into

the apartment was immaterial to the credit union robbery. In so

arguing, he challenges the procedural reasonableness of his

sentence. This court reviews a sentence for reasonableness

“under a deferential abuse-of-discretion standard.” Gall v.

United States, 552 U.S. 38, 41 (2007). In determining

procedural reasonableness, we consider whether the district

court properly calculated the defendant’s Sentencing Guidelines

range. Id. at 49-51.

The court reviews the district court’s “factual

findings for clear error and [its] legal conclusions de novo.”

United States v. Llamas, 599 F.3d 381, 387 (4th Cir. 2010).

Properly preserved claims of procedural error are subject to

harmless error review. United States v. Lynn, 592 F.3d 572, 576

(4th Cir. 2010).

Under USSG § 3C1.1, “(A) the defendant’s offense level

may be increased two levels if the defendant willfully

obstructed or impeded, or attempted to obstruct or impede, the

administration of justice with respect to the investigation,

prosecution, or sentencing of the instant offense of conviction,

and (B) the obstructive conduct related to (i) the defendant’s

offense of conviction and any relevant conduct; or (ii) a

closely related offense.” Material evidence means “evidence,

fact, statement, or information that, if believed, would tend to

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influence or affect the issue under determination.” USSG

§ 3C1.1 cmt. n.6. “Obstructive conduct that occurred prior to

the start of the investigation . . . may be covered by this

Guideline if the conduct was purposefully calculated, and

likely, to thwart the investigation or prosecution” of the

offense. USSG § 3C1.1 n.1. The endangerment of innocent

bystanders is sufficient to support an enhancement under USSG

§ 3C1.1 for obstruction of justice. United States v. Hicks, 948

F.2d 877, 884 (4th Cir. 1991).

Hilliard argues that the obstruction of justice in his

case is related to a breaking and entering, but not the credit

union robbery. He also argues that the conduct would not

influence the decision maker. He mainly rests this portion of

the argument on the fact that he pleaded guilty on the second

day of trial, therefore the obstruction related to attempting to

suborn perjury by a witness did not affect a decision maker.

The Government argues that Hilliard attempted to suborn perjury

and that it was material and relevant to evidence of guilt and

Hilliard’s initial defense strategy to implicate one of Greene’s

sons in the robbery.

The district court, while entertaining argument on the

enhancement at the first sentencing, found that Greene’s

testimony that Hilliard asked him to get Ms. White to change her

story for trial was more likely true than not and was material

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to an attempt to escape and related to consciousness of guilt.

After reviewing the evidence, we conclude that the court did not

err in making these findings, and the enhancement was proper.

Next, Hilliard argues that the district court erred in

departing upward for under-represented criminal history.

Hilliard argues that the court erred in departing upward for

four reasons. First, his criminal history does not

substantially under-represent the seriousness of his criminal

history or propensity to commit crimes. Second, the types of

information identified in the Guideline, such as prior sentences

that were not counted, sentences of substantially more than one

year, pending charges or sentences on other charges, no reliable

information of any prior similar conduct not resulting in a

criminal conviction, are not present in Hilliard’s case. See

USSG § 4A1.3(a)(2)(A)-(E). Third, Hilliard argues that the

court made an improper assessment of the seriousness of his

criminal history by relying, in part, on characteristics of the

current offense and by putting undue weight upon his conviction

for pointing a gun at a police officer when he was seventeen

years old. Finally, Hilliard argues that, had the 2011

Guidelines been used to calculate his sentence instead of the

2006 Guidelines, the additional two criminal history points for

commission of the offense less than two years after release from

prison would have been eliminated.

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When the district court imposes a departure or

variance sentence, this court considers 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). The

district court “has flexibility in fashioning a sentence outside

of the Guidelines range,” and need only “set forth enough to

satisfy the appellate court that [it] has considered the

parties’ arguments and has a reasoned basis” for its decision.

United States v. Diosdado-Star, 630 F.3d 359, 364 (4th Cir.)

(citing Rita v. United States, 551 U.S. 338, 356 (2007)), cert.

denied, 131 S. Ct. 2946 (2011).

A district court may depart upward from the applicable

Guidelines range if “reliable information indicates that the

defendant’s criminal history category substantially under

represents the seriousness of the defendant’s criminal history

or the likelihood that the defendant will commit other crimes.”

USSG § 4A1.3(a)(1), p.s.; see United States v. Whorley, 550 F.3d

326, 341 (4th Cir. 2008) (noting that an under-represented

criminal history category is an encouraged basis for departure).

To determine whether a departure sentence is appropriate in such

circumstances, the Guidelines state that a court may consider

prior sentences not used in the criminal history calculation,

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prior sentences of “substantially more than one year” for

independent crimes committed at different times, prior similar

misconduct resolved by civil or administrative adjudication,

charges pending at the time of the offense, or prior, similar

conduct that did not result in a conviction. USSG

§ 4A1.3(a)(2), p.s.

The Guidelines state factors that may be relied upon

in departing upward, but not all of the factors identified need

be present. It is sufficient that the criminal history

substantially under-represents “the likelihood that the

defendant will commit other crimes.” USSG § 4A1.3. Here, the

district court clearly enumerated its reasons for departing

upward. It was heavily influenced by Hilliard’s previous crimes

of violence, including arrest in 1999 for resisting an officer

and then, a year later in 2000, for pointing a revolver directly

at a police officer, and selling drugs while armed. The court

also cited the violent elements of the credit union robbery and

getaway. The court rejected the Government’s position that the

court should move directly to the career offender category after

Simmons struck the crimes that qualified Hilliard for the

designation. However, the court determined that a reasonable

basis of departure would be one criminal history category to

category five.

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On appeal, Hilliard essentially challenges the court’s

evaluation of the evidence and the reasonableness of the

inferences drawn from his past criminal conduct. Although

Hilliard disagrees with the court’s characterization of his past

acts, the court did not rely on an improper basis in departing

upward. Although the court cited the circumstances of the

current crime, there were sufficient reasons given without

consideration of the current circumstances and, further, the

court discussed it to substantiate its determination that

Hilliard lacked respect for the criminal justice system. We

conclude that the departure was reasonable given the grounds

stated by the court. See Diosdado-Star, 630 F.3d at 365-66

(finding that the method of deviation from the Guidelines range—

whether by a departure or by varying—is irrelevant so long as at

least one rationale is justified and reasonable).

We therefore affirm the judgment. We dispense with

oral argument because the facts and legal contentions are

adequately presented in the materials before the court and

argument would not aide the decisional process.

AFFIRMED