United States v. Hillian , 210 F. App'x 251 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4729
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RANDALL EUGENE HILLIAN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-04-41)
Submitted: August 4, 2006 Decided: December 19, 2006
Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Ames C. Chamberlin, LAW OFFICES OF AMES C. CHAMBERLIN, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Robert A.J. Lang, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Randall Eugene Hillian appeals his conviction and 120-
month sentence imposed after a jury found him guilty of being a
convicted felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1)
& 924(a)(2) (2000). For the reasons stated below, we affirm
Hillian’s conviction, but vacate his sentence and remand for
resentencing.
Hillian claims error in the district court’s refusal to
instruct the jury on the defense of justification in regard to his
possession of a firearm. To establish a justification defense, the
defendant must show that: (1) he was under unlawful and present
threat of death or serious bodily injury; (2) he did not recklessly
place himself in a situation where he could be forced to engage in
criminal conduct; (3) he had no reasonable legal alternative (to
both the criminal act and the avoidance of the threatened harm);
and (4) there was a direct causal relationship between the criminal
action and the avoidance of the threatened harm. United States v.
Perrin, 45 F.3d 869, 873-74 (4th Cir. 1995). We find that Hillian
fails to establish all of the requisite elements of this defense.
First, Hillian alleges that based on a heated argument
with his father and the fact that his father shot him in 1991, he
was “under an unlawful and present threat of death or serious
bodily injury.” In United States v. Crittendon, 883 F.2d 326, 330
(4th Cir. 1989), this court held that the defendant was not
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entitled to an instruction on the justification defense when he
obtained a gun for protection after he was shot following death
threats eight months earlier. Id. The court held that
“generalized fears will not support the defense of justification.”
Id. Based on a shooting that occurred in 1991 and the district
court’s specific finding that there was no indication that
Hillian’s father was going to get his gun at the time of the
altercation, we conclude Hillian at best faced only a more
generalized fear, not an imminent threat or danger. We therefore
find Hillian failed to establish the first prong of the
justification defense.
Second, Hillian claims that he had no reasonable legal
alternatives, as his choices were to run unarmed from the scene,
and risk being shot in the back by his father, or remove the rifle
from the house to prevent his father from having access to the gun.
As the Supreme Court held in United States v. Bailey, 444 U.S. 394,
410 (1980), “if there was a reasonable, legal alternative to
violating the law, ‘a chance both to refuse to do the criminal act
and also to avoid the threatened harm’ the defense[] will fail.”
We find Hillian failed to avail himself of several reasonable
alternatives to the actions taken and conclude the district court
did not err when it declined to give a jury instruction on the
justification defense.
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Hillian further contends that, based on Blakely v.
Washington, 542 U.S. 296 (2004), the four-level enhancement applied
to his sentence, pursuant to U.S. Sentencing Guidelines Manual
(“USSG”) § 2K2.1(b)(5) (2003) for possessing a firearm in
connection with the felony offense of “Assault with a Deadly Weapon
with Intent to Kill,” is unconstitutional because it was not
charged in the indictment or admitted to by Hillian.*
Nevertheless, a Sixth Amendment error occurs when the district
court imposes a sentence greater than the maximum permitted based
on facts found by a jury or admitted by the defendant. United
States v. Booker, 543 U.S. 220, 244 (2005).
To ascertain whether the defendant’s sentence violated
his Sixth Amendment rights post-Booker, this court employs the
defendant’s “guideline range based on the facts he admitted before
adjusting that range for acceptance of responsibility.” United
States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005). Hillian’s
unenhanced base offense level was twenty-four. Applying criminal
history category VI, Hillian’s sentencing range would be 100 to 125
months’ imprisonment. See USSG Ch. 5, Pt. A. As Hillian’s
*
Because Hillian objected at sentencing based on Blakely,
Hillian preserved the constitutional issue. See United States v.
Rodriguez, 433 F.3d 411, 415 (4th Cir. 2006). In addition, we
reject the Government’s argument that there were was no error as to
the calculation of Hillian’s offense level, based on his assent to
the accuracy of the presentence report. In United States v. Milam,
443 F.3d 382 (4th Cir. 2006), this court held that a failure to
object to the presentence report does not constitute an admission
of facts set forth in the report for the purposes of Booker.
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sentence does not exceed the maximum sentence authorized by the
facts he admitted, there is no Sixth Amendment violation.
Hillian also challenges the use of prior convictions used to
calculate a criminal history category of VI. The fact of a prior
conviction need not be proven beyond a reasonable doubt.
Almendarez-Torres v. United States, 523 U.S. 224, 233-36, 243-44
(1998); United States v. Cheek, 415 F.3d 349, 351-54 (4th Cir.)
(reaffirming continuing validity of Almendarez-Torres after
Booker), cert. denied, 126 S. Ct. 640 (2005). Thus, the district
court was not required to make any factual findings concerning
Hillian’s prior record or his status at the time of the instant
offenses, but could rely on “the conclusive significance” of his
record, see Shepard v. United States, 544 U.S. 13, 25 (2005), as
set out in the presentence report. See United States v. Thompson,
421 F.3d 278, 285 (4th Cir. 2005) (sentencing judge entitled to
rely on undisputed information in presentence report that “bears
the earmarks of derivation from Shepard-approved sources such as
the indictments and state-court judgments from [defendant’s] prior
convictions”), cert. denied, 126 S. Ct. 1463 (2006). We find that
the district court did not violate Hillian’s Sixth Amendment rights
when it considered his legal status and prior convictions in
determining his sentence.
Finally, Hillian contends that the district court erred
when it treated the guidelines as mandatory, in violation of
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Booker. Because Hillian preserved this issue by objecting to the
presentence report on Blakely grounds, this court reviews for
harmless error. Rodriguez, 433 F.3d at 415. Under the harmless
error standard, this court "must reverse unless [it] find[s] this
constitutional error harmless beyond a reasonable doubt, with the
Government bearing the burden of proving harmlessness." United
States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003) (citations
omitted); see United States v. White, 405 F.3d 208, 223 (4th Cir.)
(discussing difference in burden of proving that error affected
substantial rights under harmless error standard in Fed. R. App. P.
52(a), and plain error standard in Fed. R. App. P. 52(b)), cert.
denied, 126 S. Ct. 668 (2005).
The district court imposed a sentence of 120 months’
imprisonment. The district court did not impose an alternate
sentence, nor did it announce what sentence it would have imposed
if the guidelines were treated as advisory. Thus, the district
court’s application of the sentencing guidelines as mandatory was
error; the Government concedes statutory Booker error occurred and
that resentencing is appropriate.
Accordingly, we affirm Hillian’s conviction, but vacate
his sentence and remand for resentencing consistent with Booker.
We further dismiss Hillian’s pro se motion to remand as moot. We
dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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