UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4180
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 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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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