United States v. Hawkins , 149 F. App'x 184 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4734
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROGER DALE HAWKINS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry F. Floyd, District Judge.
(CR-03-946)
Submitted: August 19, 2005 Decided: September 22, 2005
Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Benjamin T. Stepp, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Alan Lance Crick, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Roger Dale Hawkins appeals a 400-month sentence imposed
after he pleaded guilty to conspiracy to rob a post office and
present stolen money orders for payment, in violation of 18 U.S.C.
§§ 371, 500, 2114(a) (2000); assault and robbery of a postal
employee and aiding and abetting, in violation of 18 U.S.C.
§§ 2114(a), 2 (2000); using, carrying and possessing a firearm
during and in relation to a crime of violence, in violation of 18
U.S.C. § 924(c)(1)(A) (2000); conspiracy to use, carry, and possess
a firearm during and in relation to a crime of violence, in
violation of 18 U.S.C. § 924(o) (2000); theft and conversion of
blank postal money orders and aiding and abetting, in violation of
18 U.S.C. §§ 500, 2 (2000); and being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), 924(e)
(2000). Counsel for Hawkins filed an Anders1 brief, in which he
states that there are no meritorious issues for appeal, but
suggests that the district court erred in departing upward from the
guideline2 range in sentencing Hawkins. Hawkins was advised of his
right to file a pro se supplemental brief, but did not file a
brief.
1
Anders v. California, 386 U.S. 738 (1967).
2
U.S. Sentencing Guidelines Manual (USSG) (2003).
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The probation officer concluded that Hawkins qualified
for sentencing as a career offender and an armed career criminal,3
and calculated a guideline range of 272 to 319 months of
imprisonment. The probation officer also recommended an upward
departure from the guideline range based upon Hawkins’s prior
convictions and the nature of those crimes. Hawkins objected to
the probation officer’s recommendation for an upward departure,
contending that the calculated guideline range provided adequate
punishment options for the district court in his case. The
district court concluded that an upward departure was warranted,
determined that a departure to offense level thirty-seven in
criminal history category VI was appropriate, and sentenced Hawkins
to 400 months of imprisonment.
On appeal, Hawkins repeats his arguments that an upward
departure was not warranted in this case, and that even if a
departure was appropriate, the district court erred in determining
the extent of the departure. “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, an upward departure may be warranted.” USSG § 4A1.3(a)(1).
We have noted that “[s]ection 4A1.3 was drafted in classic
3
Hawkins did not object to classification as an armed career
criminal or career offender.
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catch-all terms for the unusual but serious situation where the
criminal history category does not adequately reflect past criminal
conduct or predict future criminal behavior.” United States v.
Lawrence, 349 F.3d 724, 730 (4th Cir. 2003). “In determining
whether an upward departure from Criminal History Category VI is
warranted, the court should consider that the nature of the prior
offenses rather than simply their number is often more indicative
of the seriousness of the defendant’s criminal record.” USSG
§ 4A1.3 comment. (n.2(B)). In deciding the extent of a departure
in the case of a defendant who is already in criminal history
category six, “the court should structure the departure by moving
incrementally down the sentencing table to the next higher offense
level in Criminal History Category VI until it finds a guideline
range appropriate to the case.” USSG § 4A1.3(a)(4)(B).
Our review of the record reveals that the district court
explained in great detail its decision that an upward departure was
appropriate in this case, as well as its reasoning supporting a
conclusion that the intervening offense levels of thirty-five and
thirty-six did not adequately address the inadequacy of Hawkins’s
criminal history. We conclude that, under either a de novo or
abuse of discretion standard of review, the district court did not
err in its decision to upwardly depart, or its selection of the
ultimate sentence in this case.
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In accordance with Anders, we have thoroughly examined
the entire record, including the transcripts of the Fed. R. Crim.
P. 11 and sentencing hearings, for any other potentially
meritorious issues and have found none.4 Accordingly, we affirm
Hawkins’s convictions and sentence. This court requires that
counsel inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the
client 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 the client. 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
4
This court entered an order on March 3, 2005, that stated:
“[t]o assist this Court in determining the impact, if any, of the
Supreme Court’s decision in United States v. Booker, 543 U.S. __
(2005), upon this appeal, appellant is accorded the opportunity to
submit supplemental briefing raising any claims based upon Booker
that appellant wishes this Court to consider.” Hawkins was given
until March 31, 2005, to file supplemental briefs, but no briefs
were filed. Accordingly, we have not considered any potential
issues arising under Booker.
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