United States v. Hinnant , 384 F. App'x 276 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4197
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEMETHRIC ANTWAN HINNANT,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:08-cr-00265-BO-1)
Submitted: June 9, 2010 Decided: June 24, 2010
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jane C. Norman, BOND & NORMAN, Washington, D.C., for Appellant.
George E. B. Holding, United States Attorney, John Howarth
Bennett, Assistant United States Attorney, Greenville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Demethric Antwan Hinnant pleaded guilty, without the
benefit of a plea agreement, to one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1)
and 924 (2006). After determining that Hinnant was subject to
the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e) (2006),
because he had three convictions for crimes of violence under
North Carolina law, the district court sentenced Hinnant,
without objection, to 180 months imprisonment. On appeal,
Hinnant contends that the district court committed plain error
in counting two of the convictions for crimes that occurred when
he was seventeen and violated the Eighth Amendment by using
those convictions to enhance his sentence. For the following
reasons, we affirm.
I.
On March 20, 2008, the Wilson (North Carolina) Police
Department received a tip that two individuals were selling a
firearm at a Wilson market. The responding officers saw another
individual and Hinnant, who attempted to flee when approached
but was quickly apprehended. The officers recovered a .25
caliber semi-automatic handgun near where Hinnant was arrested.
Hinnant pleaded guilty to one count of being a felon
in possession, in violation of §§ 922(g)(1) and 924. Prior to
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Hinnant’s sentencing, the district court ordered the preparation
of a Presentence Report (PSR). The PSR recommended that Hinnant
be subject to an enhanced sentence under the ACCA.
Specifically, the PSR identified three convictions for breaking
and entering, in 2003, 2004, and 2005. Hinnant was seventeen at
the time of the 2003 and 2004 convictions. Pursuant to the
ACCA, Hinnant faced a mandatory minimum sentence of 180 months
imprisonment, and his guidelines range was 180 to 210 months
imprisonment. * Hinnant filed no objections to the PSR, and at
sentencing, the district court adopted the PSR and sentenced
Hinnant to 180 months imprisonment. Hinnant filed a timely
appeal.
II.
On appeal, Hinnant raises two arguments: that the
district court erred in counting the two convictions obtained
when Hinnant was seventeen as predicate violent felonies under
the ACCA and that Hinnant’s sentence enhancement based on those
convictions violates the Eighth Amendment’s bar against cruel
and unusual punishment. As Hinnant acknowledges, because he
failed to raise either of these arguments before the district
court, our review is for plain error. See Fed. R. Crim. P.
*
Without the statutory fifteen-year sentence under the
ACCA, the guidelines range was 168-210 months.
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52(b). “To establish plain error, the appealing party must show
that an error (1) was made, (2) is plain (i.e., clear or
obvious), and (3) affects substantial rights.” United States v.
Lynn, 592 F.3d 572, 577 (4th Cir. 2010). Even assuming the
party satisfies this three-part showing, we may exercise our
discretion to correct the error only if it “seriously affects
the fairness, integrity or public reputation of judicial
proceedings.” United States v. Massenburg, 564 F.3d 337, 343
(4th Cir. 2009) (internal quotation marks omitted).
The term “violent felony” is defined, for purposes of
the ACCA, as “any crime punishable by imprisonment for a term
exceeding one year, or any act of juvenile delinquency involving
the use or carrying of a firearm, knife, or destructive device
that would be punishable by imprisonment for such term if
committed by an adult.” 18 U.S.C. § 924(e)(2)(B). In addition,
to qualify as a violent felony, the crime must either “ha[ve] as
an element the use, attempted use, or threatened use of physical
force against the person of another,” or be one of several
enumerated crimes, including “burglary.” 18 U.S.C.
§ 924(e)(2)(B)(i), (ii).
Hinnant contends that because his prior crimes were
“juvenile adjudications,” the Government had to prove that they
involved the use or carrying of a firearm, knife, or destructive
device under § 924(e)(2)(B). He asserts the generic reference
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to breaking and/or entering in the PSR is insufficient to carry
that burden. We addressed and rejected Hinnant’s argument in
United States v. Lender, 985 F.2d 151 (4th Cir. 1993),
concluding that a defendant’s conviction for breaking and
entering under North Carolina law when he was seventeen years
old satisfied the definition of “violent felony” under
§ 924(e)(2)(B)’s first part. As we explained in Lender, “if the
state prosecutes an individual as an adult, as it did here, the
first part of the “violent felony” definition applies; if the
state prosecutes as a juvenile, then the second part applies.”
Id. at 156. In this case, as in Lender, North Carolina tried
Hinnant as an adult, and, accordingly, as in Lender, Hinnant’s
two convictions when he was seventeen were “not for a juvenile
offense, but for an adult crime punishable by imprisonment for a
term exceeding one year — a violent felony as defined by the
first part of section 924(e)(2)(B).” Id. at 156.
Hinnant’s convictions also satisfy the second
requirement under § 924(e)(2)(B). In Taylor v. United States,
495 U.S. 575 (1990), the Supreme Court construed the term
“burglary” in § 924(e)(2)(B)(ii) to be “generic burglary,” that
is, “unlawful or unprivileged entry into, or remaining in, a
building or structure, with intent to commit a crime.” Id. at
599. Based on this definition, we have held that the North
Carolina breaking and entering statute, N.C. Gen. Stat. § 14-545
(2009), counts as a predicate offense under the ACCA. See
United States v. Thompson, 421 F.3d 278, 284 (4th Cir. 2005);
United States v. Bowden, 975 F.2d 1080, 1083-85 (4th Cir. 1992).
In the alternative, Hinnant argues that the district
court violated the Eighth Amendment by using convictions
obtained when Hinnant was seventeen years old to enhance his
sentence to fifteen years’ imprisonment. This argument suffers
from the same misapprehension that Hinnant’s prior crimes were
handled as juvenile adjudications of delinquency and not as
adult criminal convictions. Further, we have held, on numerous
occasions, that the fifteen-year sentence under the ACCA for a
violation of § 922(g) “is neither disproportionate to the
offense nor cruel and unusual punishment, and thus does not
violate the Eighth Amendment.” United States v. Presley, 52
F.3d 64, 68 (4th Cir. 1995). See also United States v.
Etheridge, 932 F.2d 318, 323 (4th Cir. 1991) (same); United
States v. Crittendon, 883 F.2d 326, 331 (4th Cir. 1989) (same).
III.
For the foregoing reasons, we affirm Hinnant’s
conviction and sentence. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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