United States v. Hooker , 160 F. App'x 273 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4123
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEVIN RAISHAUN HOOKER,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-7780)
Submitted: October 5, 2005 Decided: December 7, 2005
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Angela H.
Miller, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
On June 30, 2004, this court affirmed Kevin Raishaun
Hooker’s conviction and sentence. See United States v. Hooker, No.
04-4123, 2004 WL 1465671 (4th Cir. June 30, 2004) (unpublished).
On January 24, 2005, the Supreme Court granted Hooker’s petition
for writ of certiorari, vacated this court’s judgment and remanded
to this court for further consideration in light of United States
v. Booker, 125 S. Ct. 738 (2005). Having reconsidered Hooker’s
sentence in light of Booker and its progeny, we find no reversible
error. Accordingly, we affirm.
Kevin Raishaun Hooker pled guilty to one count of
possession of a firearm by a felon in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2) (2000). Hooker was assigned a base offense
level of twenty-four.1 See U.S. Sentencing Guidelines Manual
§ 2K2.1(a)(2) (2003). The district court determined that Hooker
possessed the firearm in connection with another felony offense and
increased his base offense level by four. See USSG § 2K2.1(b)(5).
The district court then applied a three-level adjustment for
acceptance of responsibility, thereby giving Hooker an adjusted
offense level of twenty-five. Hooker was assessed eight criminal
history points, which included a two-point increase under
§ 4A1.1(d) because he committed the offense while on state
1
Hooker does not contend that his base offense level of
twenty-four was erroneously calculated.
- 2 -
probation and a one-point increase under § 4A1.1(e) because he
committed the offense less than two years after release from
imprisonment on a sentence counted under § 4A1.1(a) or (b), thereby
placing him in criminal history category IV. Therefore, Hooker’s
guideline range was 84 to 105 months.
At sentencing, Hooker objected to the four-point increase
under § 2K2.1(b)(5). He argued that his possession of the firearm
was not “in connection with” another felony offense. Hooker
maintained that while an individual who lived at his residence was
involved in the possession and/or distribution of marijuana, he was
not a party to the illegal activities. The district court
disagreed with Hooker’s argument, found that it was “more likely
true than not[] that Mr. Hooker was possessing marijuana for the
purpose of distributing or maintaining a dwelling for that
purpose[,]” and sentenced him to a term of imprisonment for
ninety-two months.
On appeal, Hooker argues that the district court
“violated [his] Sixth Amendment rights by applying [the] four-level
enhancement under USSG § 2K2.1(b)(5) . . . when the factual
predicate for that enhancement was neither admitted by [him], nor
found beyond a reasonable doubt by a jury.”2
2
The Government contends we should vacate and remand Hooker’s
sentence because the district court sentenced him under a mandatory
guideline scheme. As this issue was not raised by Hooker, it is
arguably waived. In any event, we find no plain error in this
respect. See United States v. White, 405 F.3d 208, 223-24 (4th
- 3 -
As Hooker raises this issue for the first time on appeal,
review is for plain error. See United States v. Evans, 416 F.3d
298, 300 (4th Cir. 2005). To establish that a Sixth Amendment
error occurred during sentencing, a defendant must show that the
district court imposed a sentence exceeding the maximum allowed
based only on the facts to which he admitted. Id.Though Hooker admitted that he was a felon in possession
of a firearm, he has never admitted that he possessed the firearm
in connection with another felony offense. Instead, the district
court concluded, after hearing evidence on the issue, that “it’s
more likely true than not” that Hooker in fact possessed the
firearm in connection with another felony offense. Without this
enhancement, Hooker’s base offense level would have been
twenty-four rather than twenty-eight. Based on a base offense
level of twenty-four and a criminal history category of IV,
Hooker’s guideline range would have been 77 to 96 months’
imprisonment. See USSG Ch. 5, Pt. A (2003) (sentencing table).
Because Hooker’s sentence of ninety-two months does not exceed the
maximum authorized by the facts to which he admitted, no Sixth
Amendment error occurred. See Evans, 416 F.3d at 300-01.
We therefore affirm the sentence imposed by the district
court. We dispense with oral argument because the facts and legal
Cir. 2005).
- 4 -
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
- 5 -