United States v. Timothy Heggins ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5100
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY DEWAYNE HEGGINS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:09-cr-00043-RLV-DCK-1)
Submitted: September 30, 2011 Decided: October 17, 2011
Before AGEE, DAVIS, and DIAZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
John J. Cacheris, DOZIER, MILLER, POLLARD & MURPHY, LLP,
Charlotte, North Carolina, for Appellant. Anne M. Tompkins,
United States Attorney, Richard Lee Edwards, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy Dewayne Heggins pled guilty to unlawful
possession of a firearm by a convicted felon, 18 U.S.C.
§ 922(g)(1) (2006), and was sentenced to a term of eighty-seven
months of imprisonment. Heggins appeals his sentence,
contending that the district court erred in assigning him a base
offense level of 24 under U.S. Sentencing Guidelines Manual
§ 2K2.1(a)(2) (2009), and in finding that Heggins possessed the
gun in connection with another felony offense, USSG
§ 2K2.1(b)(6). In light of our recent decision in United
States v. Simmons, 649 F.3d 237, 2011 WL 3607266 (4th Cir.
Aug. 17, 2011) (en banc), we agree with Heggins that his 2007
drug trafficking conviction does not qualify as a felony
conviction. Accordingly, although we affirm the conviction and
the court’s determination that Heggins possessed the firearm in
connection with an armed robbery, we vacate the sentence and
remand for resentencing.
A sentence is reviewed for abuse of discretion.
Gall v. United States, 552 U.S. 38, 51 (2007). The district
court commits significant procedural error when it improperly
calculates the Guidelines range. Id. At sentencing, Heggins
objected to the base offense level of 24 on the ground that his
2007 drug trafficking conviction did not expose him to a
sentence of more than one year of imprisonment. See § 2K2.1
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cmt. n.1 (defining felony conviction). He maintained that the
base offense level should be 20, pursuant to § 2K2.1(a)(4).
Following United States v. Harp, 406 F.3d 242 (4th Cir. 2005),
the court overruled Heggins’ objection and sentenced him within
his Guidelines range to a term of 120 months imprisonment. Harp
has since been overruled by Simmons, which held that, under the
North Carolina structured sentencing scheme, see N.C. Gen. Stat.
§ 15A-1340.17(c)-(d) (2009), the evaluation of whether a
particular conviction was a felony must focus on the maximum
sentence for which a particular defendant was eligible, based on
his own criminal history, rather than the maximum sentence that
could be imposed on a defendant with the worst possible criminal
record. Simmons, 649 F.3d at ___, 2011 WL 3607266, at *6.
Judged by this standard, Heggins’ 2007 conviction does not
qualify as a felony. Resentencing is thus required.
Heggins’ second claim of sentencing error is
meritless. The 4-level increase under USSG § 2K2.1(b)(6)
applies if the defendant possessed a firearm in connection with
another felony offense. In this context, possessing in
connection with another offense means that the firearm
“facilitated or had the potential of facilitating” the other
offense. USSG § 2K2.1 cmt. n.14(A). “This requirement is
satisfied if the firearm had some purpose or effect with respect
to the other offense.” United States v. Jenkins, 566 F.3d 160,
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163 (4th Cir.), cert. denied, 130 S. Ct. 330 (2009) (internal
quotation marks omitted).
Heggins’ objection to the enhancement was based wholly
on his assertion that he did not participate in the robbery.
The district court had before it information that the victim had
identified Heggins as one of the robbers and that the victim
said one robber choked him while the other displayed a gun and
stole his money. The court also heard Heggins’ deny, during his
videotaped interrogation, that he had any involvement in the
robbery. The district court decided that Heggins’ denial was
not credible, and found as a fact that Heggins had participated
in the armed robbery. Once that fact was established, the
further determination that the gun was possessed in connection
with the robbery followed without dispute.
An appellate court generally defers to the district
court’s credibility determinations. United States v. Abu Ali,
528 F.3d 210, 232 (4th Cir. 2008). Given that the victim
identified Heggins as one of the robbers, the district court’s
determination that he took part in the robbery was not clearly
erroneous. United States v. Battle, 499 F.3d 315, 322-23 (4th
Cir. 2007). In this appeal, Heggins contends that the court
clearly erred in finding that he took part in the robbery. We
disagree, and conclude that the enhancement was properly
applied.
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Because Heggins will be resentenced, his claim that
the district court erred in failing to impose a variance
sentence below the Guidelines range is moot. However, on
remand, before imposing sentence, the district court should,
“[r]egardless of whether [it] imposes an above, below, or
within-Guidelines sentence . . . place on the record an
‘individualized assessment’ based on the particular facts of the
case before it.” United States v. Carter, 564 F.3d 325, 330
(4th Cir. 2009) (quoting Gall, 552 U.S. at 50). The
individualized assessment should “apply the relevant § 3553(a)
factors to the specific circumstances of the case before it.”
Carter, 564 F.3d at 328.
Accordingly, we affirm Heggins’ conviction, vacate his
sentence, and remand for resentencing consistent with Simmons.
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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