United States v. Hope

• Citation: 28 F.4th 487
• Decision Date: 09 March 2022
• Docket Number: No. 20-4420,20-4420
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Soterio Lamar HOPE, Defendant - Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

28 F.4th 487

UNITED STATES of America, Plaintiff - Appellee,

v.Soterio Lamar HOPE, Defendant - Appellant.

No. 20-4420

United States Court of Appeals, Fourth Circuit.

Argued: October 29, 2021

Decided: March 9, 2022

ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Thomas Ernest Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Jill E.M. HaLevi, MEDIATION & LEGAL SERVICES, LLC, Charleston, South Carolina, for Appellant. Nicholas L. McQuaid, Acting Assistant Attorney General, Robert A. Zink, Acting Deputy Assistant Attorney General, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; M. Rhett DeHart, Acting United States Attorney, Kathleen M. Stoughton, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Before GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges.

Vacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Wynn joined. Judge Thacker wrote a dissenting opinion.

GREGORY, Chief Judge:

Hope pled guilty to one count of knowingly possessing a firearm and ammunition. J.A. 36. During sentencing, the United States Probation Office completed a presentence report ("PSR") determining that Hope qualified for a mandatory minimum sentence under the Armed Career Criminal Act ("ACCA"), based on three prior South Carolina convictions, dated May 22, 2013, for possession of marijuana with intent to distribute in proximity of a school. J.A. 152. Hope objected, arguing that his prior South Carolina convictions were not predicate offenses under the ACCA. J.A. 159–60. The district court overruled Hope's objection and imposed a minimum sentence of 15-years' incarceration, followed by three years of supervised release. J.A. 101–03, 113. Hope now appeals.

We hold that the district court erred in finding that Hope's prior state convictions qualified as "serious drug offenses" under the ACCA, and, thus, we vacate and remand for resentencing.

I.

On February 1, 2018, Soterio Lamar Hope was named in a one-count superseding indictment in the United States District Court in South Carolina charging him with knowingly possessing a firearm and ammunition, all of which had been shipped and transported in interstate and foreign commerce, having previously been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and 924(e) (Count One). J.A. 36, 143. On November 19, 2019, Hope pled guilty to Count One of the Superseding Indictment. J.A. 6, 68. On February 11, 2020, the United States Probation Office completed a PSR, which was subsequently revised on March 23, 2020. J.A. 142. The PSR noted that Hope qualified for a mandatory minimum of 15-years' incarceration under the ACCA, based on three prior South Carolina convictions dated May 22, 2013. J.A. 152; PSR ¶ 40. This determination resulted in an offense level of 33. J.A. 152. After receiving credit for acceptance of responsibility, Hope's total offense level was 30, which would have resulted in a sentencing guideline range of 135–168 months. J.A. 152; PSR ¶ 55.

During his sentencing hearing on August 12, 2020, Hope objected to the application of the ACCA by arguing that his prior South Carolina convictions were not predicate offenses under the ACCA. J.A. 159–60. The district court overruled Hope's objections and imposed a mandatory minimum sentence under the ACCA of 180-months' incarceration. J.A. 154, 101–03, 113. Final judgment was entered on August 13, 2020. On August 17, 2020, Hope filed a timely notice of appeal to this court.

II.

As an initial matter, there is a question of whether we review de novo or for plain error. Generally, we review de novo whether a prior conviction qualifies as a "serious drug offense" under the ACCA because it is a question of law. United States v. Burns-Johnson , 864 F.3d 313, 315 (4th Cir. 2017). Additionally, we review de novo a trial court's legal interpretation of the United States Sentencing Guidelines. United States v. Wessells , 936 F.2d 165, 168 (4th Cir. 1991).

Here, the Government alleges that Hope did not object during sentencing to the determination that his predicate offenses qualified as a "serious drug offense" under the ACCA. Resp. Br. at 6–8. Thus, the Government argues that Hope forfeited his ACCA claim and that we are limited to plain error review because Hope's argument on appeal is "different from his claim in the district court." Resp. Br. at 6–8. While it is true that claims not raised at the district court are forfeited and thus, limit appellate review to plain error, this is not the case here. See, e.g., United States v. White , 836 F.3d 437, 444 (4th Cir. 2016) (holding that if the defendant did not object at trial, he has forfeited his claim on appeal, and the reviewing court is limited to plain error); United States v. Chong Lam , 677 F.3d 190, 200 (4th Cir. 2012) (same); United States v. Olano , 507 U.S. 725, 113 S. Ct. 1770, 1776, 123 L.Ed.2d 508, (1993) (holding that courts may review a forfeited claim for plain error).

We review de novo because Hope properly and timely objected at sentencing that his prior South Carolina convictions were not serious drug offenses as a matter of law under the ACCA. J.A. 101, 159–60.¹

Thus, Hope did not forfeit his claim. See Olano , 113 S. Ct. at 1777 (1993) (clarifying that "forfeiture [is] the failure to make the timely assertion of a right"). Though the dissent argues that Hope "never argued — either in written objections to the PSR or at sentencing" that his state convictions were not serious drug offenses under the ACCA, see Dissenting Op. at 509, we find that during sentencing and in his PSR, Hope's counsel argued that the South Carolina statute was divisible and that though the Fourth Circuit previously held that it was a categorical match, this was no longer true because Congress decriminalized hemp in 2018. Though we understand this could be a close question and recognize that counsel could have provided a better analysis to guide the district court, Hope specifically objected to the application of the ACCA on the grounds that there was no categorical match with his previous state convictions. The district court understood Hope's objection and overruled it.²

Still, the Government would have us believe that Hope's objection was solely based on a duplicitous indictment theory. While it is true that counsel also raised an objection based on the duplicitous indictment theory, counsel first objected on the basis that Hope's South Carolina offenses did not qualify as predicate offenses under the ACCA and cited to United States v. Marshall , 747 F. App'x 139 (4th Cir. 2018), cert. denied , ––– U.S. ––––, 139 S. Ct. 1214, 203 L.Ed.2d 207 (2019), a case dealing with the same objection and same South Carolina offense at issue here.³ We have clarified that for purposes of de novo appellate review, it is sufficient for counsel to articulate an objection based on multiple theories. See Yee v. City of Escondido, Cal. , 503 U.S. 519, 112 S. Ct. 1522, 1532, 118 L.Ed.2d 153 (1992) ("Once a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below."); United States v. Robinson , 744 F.3d 293, 300 (4th Cir. 2014) (holding that although a petitioner did not make the same "precise" argument before the district court, as he did on appeal, he did "challenge criminal history score, and thus preserved his claim").⁴ Though Hope now adds more weight to his argument on appeal, the district court had an opportunity to evaluate his specific objection that his state convictions were not predicate offenses for the ACCA enhancement. See J.A. 101–02. Moreover, this is not a situation where Hope made an argument that was "too general to alert the district court to the specific [objection]." See United States v. Bennett , 698 F.3d 194, 199 (4th Cir. 2012) (applying plain error review because defendant's objection below was "far to general to alert the district court" of the argument that he later raised on appeal.). Hope is neither raising a new claim nor a new theory. Rather, Hope is adding a finer point to his objection raised below. See Robinson , 744 F.3d at 300 n.6 (finding that petitioner's claim challenging his sentencing guidelines criminal history score was preserved in district court even though he made a new argument against that score on appeal).

Even if we found that plain error review is appropriate here, the outcome would be the same as we would correct the district court's error. See Section III.E. at 32–34. Recently, in a similar case, we clarified that we may first examine the merits of the appeal and need not decide whether plain error or de novo review apply if the outcome would be the same. See United States v. Green , 996 F.3d 176, 184 (4th Cir. 2021) (deciding the case first on the merits and then holding that, "even if plain error review is appropriate – and not our ordinary de novo review of a ‘crime of violence’ determination[,] ... we would correct the district court's error here and vacate and remand for resentencing"). Still, in comparison to Green , our instant case is a better candidate for de novo review because Hope sufficiently raised an objection below to a "reasonable degree of specificity which [...] adequately apprised the trial court of the true basis of his objection." United States v. LeBlanc , 612 F.2d 1012, 1014 (6th Cir. 1980) (internal quotes and citation omitted); see also Fed. R. Crim. P. 51(b). In Green , for example, the petitioner's objection to the career offender enhancement consisted of "one sentence and two footnotes." Id. at 178. Here, we need not "parse what may be a fine line between a new ‘claim’ or ‘objection,’ on the one hand, and a new ‘twist’ on a preserved claim." Id. (first quoting In re Under Seal , 749 F.3d 276, 287 (4th Cir. 20...