United States v. Hamilton

• Citation: 950 F.3d 567
• Decision Date: 19 February 2020
• Docket Number: No. 18-2436,18-2436
• Parties: UNITED STATES of America Plaintiff - Appellee v. Markell Jay HAMILTON, also known as Poo Defendant - Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

950 F.3d 567

UNITED STATES of America Plaintiff - Appellee

v.Markell Jay HAMILTON, also known as Poo Defendant - Appellant

No. 18-2436

United States Court of Appeals, Eighth Circuit.

Submitted: October 14, 2019

Filed: February 19, 2020

Dan Chatham, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Iowa, Cedar Rapids, IA, for Plaintiff-Appellee.

Markell Jay Hamilton, U.S. Penitentiary, Marion, IL, pro. se.

John D. Jacobsen, Jacobsen & Johnson, Cedar Rapids, IA, for Defendant-Appellant.

Before LOKEN, SHEPHERD, and STRAS, Circuit Judges.

SHEPHERD, Circuit Judge.

In 2017, following a guilty plea to possession of heroin with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(c), the district court sentenced Markell Hamilton to 81 months imprisonment. Hamilton’s criminal history score in his presentence investigation report (PSR), which was used to calculate his United States Sentencing Guidelines range, included a previous felony conviction, under Illinois law, for aggravated unlawful use of a weapon. In United States v. Hamilton, 709 F. App'x 425 (8th Cir. 2018) (per curiam), we vacated Hamilton’s sentence because part of the Illinois statute of conviction had been declared unconstitutional by the Illinois Supreme Court and the Seventh Circuit. We remanded for resentencing to allow the district court to determine whether the Illinois conviction was appropriately included in his criminal history score. At resentencing, the district court stated that, based on our opinion vacating Hamilton’s sentence, the scope of resentencing was limited to the issue involving Hamilton’s previous Illinois conviction. The district court ultimately concluded that this conviction was properly accounted for in Hamilton’s criminal history score because Hamilton was convicted under a provision of the Illinois statute that remained in effect. The district court then reimposed the same sentence of 81 months. Hamilton again appeals, asserting that the district court erred by considering documents related to this conviction that did not satisfy the standards set out by Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), and by limiting the scope of resentencing to only the issue involving his previous Illinois conviction. Having jurisdiction pursuant to 28 U.S.C. § 1291, we vacate Hamilton’s sentence and remand for resentencing.

Hamilton’s first point of error—that, in determining his criminal history score, the district court relied on documents that did not satisfy Shepard to determine that Hamilton had a valid conviction for aggravated unlawful use of a weapon—is without merit. "We review de novo the district court’s construction and interpretation of Chapter Four of the Guidelines, and we review for clear error the district court’s application of Chapter Four to the facts. Decisions regarding offenses counted in a criminal history calculation are factual determinations subject to clear-error review." United States v. Townsend, 408 F.3d 1020, 1022 (8th Cir. 2005) (citation and internal quotation marks omitted).

To sustain a conviction under 720 Ill. Stat. Comp. § 5/24-1.6 for aggravated unlawful use of a weapon, a defendant must have violated either subsection (a)(1) or (a)(2), which provide the locational elements of the crime, and one of the enumerated factors contained in subsection (a)(3). Following Hamilton’s conviction under this statute, the Illinois Supreme Court held that one of the enumerated factors, subsection (a)(3)(A), was unconstitutional. People v. Mosley, 392 Ill.Dec. 588, 33 N.E.3d 137, 150-151 (2015) ; People v. Aguilar, 377 Ill.Dec. 405, 2 N.E.3d 321, 327-28 (2013). Under these circumstances, where part of the statute of conviction was declared unconstitutional, the district court must determine which subsection formed the basis of conviction before including the conviction in calculating the criminal history score. In making such determination, "the court may refer to the ‘terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information,’ in order to determine whether the plea ‘ "necessarily" rested’ on facts equating to the qualifying offense." United States v. Vasquez-Garcia, 449 F.3d 870, 872 (8th Cir. 2006) (quoting Shepard, 544 U.S. at 21, 26, 125 S.Ct. 1254 ) (applying modified categorical approach to sentencing enhancement for previous firearms conviction).

Hamilton argues that the government produced only the Information and the Order Assessing Fines, Fees and Costs from Hamilton’s Illinois conviction and that these documents do not satisfy Shepard because they do not provide specific facts about how the crime was committed, do not include any colloquy between Hamilton and the sentencing court, and do not include the specific subsection of the statute for which Hamilton was convicted. Hamilton asserts, therefore, that the district court could not ascertain from the documents it considered whether he was convicted of a violation of a subsection that has since been held unconstitutional. We are not persuaded by Hamilton’s contentions. The Order Assessing Fines, Fees and Costs shows that Hamilton was convicted of Count 2 of a seven-count Information, the official charging document under Illinois law, see 725 Ill. Comp. Stat. § 5/111-2, for a violation of 720 Ill. Comp. Stat. § 5/24-1.6(a)(2), and the Information for Count 2 alleges that Hamilton

knowingly carried or possessed on or about his person a firearm, upon any public lands, ... at a time when he was not on his own land or in his own abode or fixed place of business, and he was not an invitee thereon for the purpose of display of such weapon or the lawful commerce in weapons, and he had not been issued a currently valid firearm owner’s identification card, in violation of Chapter 720 Act 5 Section 24-1.6(a)(2)/(3)(C) of the Illinois Compiled Statutes[.]

R. Doc. 61-2, at 3. The language in the Information directly corresponds to the language of 720 Ill. Comp. Stat. § 5/24-1.6(a)(2) and (a)(3)(C). These documents thus conclusively demonstrate that Hamilton was not convicted of an offense under the invalidated subsection (a)(3)(A).

And as this Court has previously held, "where a charging document already narrows the overinclusive statute, Shepard does not require the government to produce ... additional documentation" of "a record of the factual basis or admissions by [a defendant] at the state plea hearing, or a record of judicial findings of fact in the state court proceeding." Vasquez-Garcia, 449 F.3d at 873. Because the Information identifies subsections (a)(2) and (a)(3)(C), reference...