United States v. Timothy Hickson ( 2012 )

Filed: December 20, 2012
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4439
(4:11-cr-00769-TLW-1)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY CHAMEL HICKSON,
Defendant - Appellant.
O R D E R
The Court amends its opinion filed December 13, 2012,
as follows:
On page 2, line 10 of text -- the word “the” is added
before the word “sentence.”
For the Court – By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4439
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TIMOTHY CHAMEL HICKSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:11-cr-00769-TLW-1)
Submitted: October 31, 2012 Decided: December 13, 2012
Before WYNN, DIAZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. Alfred William Walker Bethea,
Jr., Assistant United States Attorney, Florence, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy Chamel Hickson pleaded guilty to possession of
a firearm after sustaining a prior conviction for an offense
punishable by a term exceeding one year of imprisonment, in
violation of 18 U.S.C. § 922(g)(1) (2006). The district court
sentenced Hickson to 188 months of imprisonment, and he now
appeals. Appellate counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), questioning whether
the district court fully complied with Fed. R. Crim. P. 11,
whether the court erred in finding that Hickson was an armed
career criminal, and whether the sentence was reasonable.
Hickson has also filed a pro se supplemental brief raising
additional issues. * Finding no error, we affirm.
Counsel first questions whether the district court
complied with Rule 11. The purpose of the Rule 11 colloquy is
to ensure that the plea of guilt is entered into knowingly and
voluntarily. See United States v. Vonn, 535 U.S. 55, 58 (2002).
Accordingly, prior to accepting a guilty plea, a trial court,
through colloquy with the defendant, must inform the defendant
of, and determine that he understands, the nature of the charges
to which the plea is offered, any mandatory minimum penalty, the
*
We have considered the issues raised in Hickson’s pro se
brief and conclude they lack merit.
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maximum possible penalty he faces, and the various rights he is
relinquishing by pleading guilty. Fed. R. Crim. P. 11(b). The
court also must determine whether there is a factual basis for
the plea. Id.; United States v. DeFusco, 949 F.2d 114, 120 (4th
Cir. 1991).
In addition, as Hickson did not move in the district
court to withdraw his guilty plea, any error in the Rule 11
hearing is reviewed for plain error. United States v. Martinez,
277 F.3d 517, 525 (4th Cir. 2002). We have thoroughly reviewed
the record and conclude that the district court fully complied
with the requirements of Rule 11. We conclude, therefore, that
Hickson’s guilty plea was knowing and voluntary.
Counsel next questions whether the district court
correctly concluded that Hickson qualified for the enhanced
penalties of the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e) (2006). We review a district court’s determination of
whether prior convictions qualify as predicate convictions for
purposes of the ACCA de novo. United States v. Brandon, 247
F.3d 186, 188 (4th Cir. 2001). Under the ACCA, if a defendant
is convicted of violating § 922(g) and has sustained three prior
convictions for violent felonies or serious drug offenses
committed on occasions different from one another, the defendant
is subject to a statutory mandatory minimum of fifteen years of
imprisonment. 18 U.S.C. § 924(e)(1). A violent felony is
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defined as a “crime, punishable by a term exceeding one year of
imprisonment, . . . that . . . has as an element the use,
attempted use, or threatened use of force against the person of
another.” 18 U.S.C. § 924(e)(2)(B)(i)-(ii). A serious drug
offense is any offense under state law that involves the
distribution of a controlled substance for which a maximum term
of imprisonment of ten years or more is prescribed by law.
In addition, to determine whether offenses were
committed on occasions different from one another, a court must
consider:
(1) whether the offenses arose in different geographic
locations; (2) whether the nature of each offense was
substantively different; (3) whether each offense
involved different victims; (4) whether each offense
involved different criminal objectives; and (5) after
the defendant committed the first-in-time offense, did
the defendant have the opportunity to make a conscious
and knowing decision to engage in the next-in-time
offense.
United States v. Leeson, 453 F.3d 631, 640 (4th Cir. 2006)
(citing United States v. Letterlough, 63 F.3d 332, 335-37 (4th
Cir. 1995)). Here, Hickson had sustained prior convictions for
assault and battery of a high and aggravated nature and two
counts of distribution of cocaine base. The district court did
not err in determining that the controlled substance offenses
were committed on occasions separate from one another and
qualified as two predicate offenses for purposes of the ACCA.
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Finally, counsel questions whether the sentence is
reasonable. We review a sentence for reasonableness, applying
an abuse of discretion standard. Gall v. United States, 552
U.S. 38, 51 (2007); see also United States v. Layton, 564 F.3d
330, 335 (4th Cir. 2009). In so doing, we examine the sentence
for “significant procedural error,” including “failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
[18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” Gall, 552 U.S. at 51. We will
presume on appeal that a sentence within a properly calculated
advisory Guidelines range is reasonable. United States v.
Allen, 491 F.3d 178, 193 (4th Cir. 2007); see Rita v. United
States, 551 U.S. 338, 346-56 (2007) (upholding presumption of
reasonableness for within-Guidelines sentence). We have
thoroughly reviewed the record and conclude that the sentence
was procedurally and substantively reasonable.
We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal. Accordingly, we affirm the judgment of the district
court. This court requires that counsel inform Hickson, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Hickson requests that a
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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 Hickson. 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
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