U.S. v. Hawkins

• Decision Date: 01 November 1995
• Docket Number: No. 94-11015,94-11015
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kedrick HAWKINS, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

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69 F.3d 11

UNITED STATES of America, Plaintiff-Appellee, v. Kedrick HAWKINS, Defendant-Appellant.

No. 94-11015

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Nov. 1, 1995.

William A. Bratton, III (Court-appointed), Dallas, TX, for Appellant.

Peter A. Winn, Asst. U.S. Atty., Paul E. Coggins, U.S. Atty., Paul David Macaluso, Asst. U.S. Atty., Dallas, TX, for Appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GARWOOD, WIENER and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Appellant, Kedrick Hawkins ("Hawkins") was found guilty by a jury of the offense felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1). He was sentenced to a term of one-hundred-twenty (120) months in prison, three (3) years supervised release and a $50.00 special assessment. He appealed, bringing two points of error relating to his sentence.

BACKGROUND

Hawkins's presentence report (PSR) stated that Hawkins's crime carried a base offense level of 24 under U.S.S.G. Sec. 2K2.1(a)(2) because he had two prior felony convictions for crimes of violence, one for aggravated assault and one for theft from a person. ¹ The PSR further recommended a two-level enhancement in the offense level under Sec. 2K2.1(b)(4) because the firearm was stolen. Based on a total offense level of 26 and a criminal history category of VI, Hawkins's guideline imprisonment range was 120 to 150 months. U.S.S.G., Chap. 5, Sentencing Table. The statutory maximum term of imprisonment for felon in possession of a firearm is ten years. 18 U.S.C. Sec. 922(g)(1).

In his written objections to the PSR and at the sentencing hearing, Hawkins argued, inter alia, that his base offense level was incorrectly calculated because his prior state-court conviction for theft from a person was not "a crime of violence" under Sec. 4B1.2, and that his criminal history category should not have been calculated using all three prior felony convictions because at least one of those convictions had already been taken into account in his offense level as the Sec. 922(g)(1) predicate felony offense. The district court overruled Hawkins's objections and sentenced him to imprisonment for 120 months--the maximum allowed under the statute, but the lowest possible sentence within the calculated guideline range.

WAS THEFT FROM A PERSON A CRIME OF VIOLENCE?

"This court will uphold a sentence imposed under the Guidelines so long as it is the product of a correct application of the Guidelines to factual findings which are not clearly erroneous." United States v. Jackson, 22 F.3d 583, 584 (5th Cir.1994). The district court's findings of fact are reviewed for clear error, and its determination of legal principles is reviewed de novo. Id.

Hawkins argues that the district court incorrectly calculated his base offense level because his prior state-court conviction for theft from a person was not "a crime of Hawkins asserts that the crime of theft from another person under Tex. Penal Code Sec. 31.03(e)(4)(B) is not a "crime of violence" because it does not have any of the elements of Sec. 4B1.2(1). There is no published Fifth Circuit precedent addressing whether theft from a person is a crime of violence for purposes of Sec. 4B1.2. However, in affirming the district court's detention order in this case, we determined that the crime of theft from a person under Texas criminal law is a "crime of violence" under 18 U.S.C. Sec. 3156(a)(4)(B) of the Bail Reform Act. United States v. Hawkins, No. 94-10414, 25 F.3d 1044 (5th Cir. June 9, 1994). That provision defines a "crime of violence" as "any ... offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." Hawkins contends that theft from a person is not a crime of violence, especially when read in conjunction with the Texas Penal Code's definition of robbery, because when there is violence in the context of a theft, under Texas law the crime is robbery. This Court noted, however, in the earlier Hawkins opinion that in Earls v. State, 707 S.W.2d 82, 86 (Tex.Crim.App.1986), the Texas Court of Criminal Appeals described the crime of theft from a person as consisting of "conduct which involves the risk of injury inherent in taking property from a person." See also, Sanders v. State, 664 S.W.2d 705, 707 (Tex.Crim.App.1982) ("[t]heft from the person includes a risk of injury to the person from whom the property is taken). This Court concluded that theft from a person is a felony crime under the Texas Code that "involves an 'inherent' risk of injury to the victim." Hawkins at 5. There is no logical basis for distinguishing the inquiry required by 4B1.2(1)(ii) that would justify reaching a contrary result. Based on this Court's prior ruling in this case and on Texas law, we conclude that the felony theft from a person under Texas law is a crime of violence for purposes of 4B1.2(1).

                violence" within the meaning of Sec. 4B1.2. 2  Section 2K2.1(a)(2) provides for a base offense level of 24 "if the defendant had at least two prior felony convictions of either a crime of violence or a controlled substance offense[.]"  Application note 5 of the Commentary to Sec. 2K2.1 indicates that "crime of violence" is defined in Sec. 4B1.2.  That section defines crime of violence as "any offense under federal or state law punishable by imprisonment for a term exceeding one year that ... has as an element the use, attempted use, or threatened use of physical force against the person of another, ... or otherwise involves conduct that presents a serious potential risk of physical injury to another."   U.S.S.G. Sec. 4B1.2(1).  Application note 2 of the Commentary to Sec. 4B1.2 provides that "[u]nder this section, the conduct of which the individual was convicted is the focus of inquiry."
                

DOUBLE COUNTING

Hawkins also contends that the district court improperly considered his three prior felony convictions in determining his criminal history category because at least one of those convictions had already been taken into account in his offense level as the Sec. 922(g)(1) predicate felony offense. The Government points out that three other circuits have determined that prior felony convictions can be used both as the predicate for establishing a defendant's base offense level under Sec. 2K2.1(a) and for calculating his criminal history category under Sec. 4A1.1. United States v. Alessandroni, 982 F.2d 419, 420 (10th Cir.1992) ("[W]e hold that the district court properly used Alessandroni's burglary conviction both as a predicate felony offense under Sec. 922(g)(1) and to increase the defendant's criminal history score. We believe this holding is consistent with the language and the policies behind the Guidelines."); United States v. Saffeels, 39 F.3d 833 (8th Cir.1994) (upholding the use of a conviction as an element of Sec. 924(e)(1) and as part of the defendant's criminal history score); United States v. Wyckoff, 918 F.2d 925, 927 (11th Cir.1990) (Such "double counting" The Sentencing Guidelines do not forbid all double counting. United States v. Godfrey, 25 F.3d 263, 264 (5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 429, 130 L.Ed.2d 342 (1994). Double counting is prohibited only if the particular guidelines at issue specifically forbid it. Id.; United States v. Box, 50 F.3d 345, 359 (5th Cir.), cert. denied --- U.S. ----, 116 S.Ct. 309, --- L.Ed.2d ---- (1995). Rather than prohibiting double counting, Application note 15 of the Commentary to Sec. 2K2.1 specifically provides that "[p]rior felony conviction(s) resulting in an increased base offense level under subsection (a)(2) are also counted for purposes of determining criminal history points pursuant to Chapter Four, Part A (Criminal History)." However, Hawkins argues that the Commentary to Sec. 4A1.2 prohibits the district court from using the same felony conviction in calculating both his offense level and his criminal history category score. Application note 1 of the Commentary to Sec. 4A1.2 states that a " '[p]rior sentence' means a sentence imposed prior to sentencing on the instant offense, other than a sentence for conduct that is part of the instant offense." According to Hawkins, because at least one of his prior convictions served as a predicate element for Sec. 922(g)(1), that prior conviction constitutes conduct that is "part of the instant offense"...