             Case: 12-16306   Date Filed: 02/24/2014   Page: 1 of 4


                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 12-16306
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 1:12-cr-00106-JEC-AJB-1


UNITED STATES OF AMERICA,
                                                                 Plaintiff-Appellee,

                                    versus

OWEN HINKSON,
a.k.a. Paul Baxter,

                                                           Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                        ________________________

                              (February 24, 2014)

Before TJOFLAT, HULL and JORDAN, Circuit Judges.

PER CURIAM:
              Case: 12-16306      Date Filed: 02/24/2014   Page: 2 of 4


      After pleading guilty, Defendant Owen Hinkson appeals his 48-month

sentence for reentry of a removed alien, in violation of 8 U.S.C. § 1326(a) and

(b)(2). On appeal, Hinkson argues that the district court erred in accepting an

erroneous presentence investigation report (“PSI”).

      As to Defendant Hinkson’s criminal history, the PSI listed a 1984 felony

drug trafficking conviction in Boston, Massachusetts and recommended an eight-

level enhancement under U.S.S.G. § 2L1.2(b)(1)(B) based on this conviction. See

U.S.S.G. § 2L1.2(b)(1)(B) (providing for an eight-level increase if the defendant

was previously deported after being convicted of a felony drug trafficking offense

for which the sentence was 13 months or less and the conviction did not receive

criminal history points). The PSI did not assign any criminal history points for the

1984 Boston conviction.

      Defendant Hinkson submitted to the sentencing court a certified copy of the

Boston Municipal Court’s docket sheet containing handwritten entries. According

to Hinkson, the docket sheet showed that in 1994, the Boston felony conviction

was reduced to simple possession, a misdemeanor. On appeal, Hinkson argues that

the district court was required to give “full faith and credit” to the Boston

Municipal Court’s final disposition and to reject the PSI’s characterization of his

Boston conviction as a felony.




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       The problem for Hinkson is that in both the district court and this Court, he

conceded that his 1984 Boston conviction did not affect his sentence. Specifically,

Hinkson did not receive any criminal history points for the 1984 Boston

conviction, whether it was a felony or a misdemeanor. And, the parties agree that,

even absent Hinkson’s Boston conviction, he still qualified for the eight-level

enhancement because his prior 1999 conviction in Texas for illegal reentry in

violation of 8 U.S.C. § 1326 was an aggravated felony. See U.S.S.G.

§ 2L1.2(b)(1)(C) & cmt. n.3(A) (providing for an eight-level increase if the

defendant was previously deported after being convicted of an aggravated felony

as defined in 8 U.S.C. § 1101(a)(43)); see also 8 U.S.C. § 1101(a)(43)(O) (listing

as an “aggravated felony” an “offense described in” 8 U.S.C. § 1326 “committed

by an alien who was previously deported on the basis of a conviction for an offense

described in another subparagraph of this paragraph”). 1 Indeed, the district court

stressed that whether Hinkson’s 1984 Boston conviction was a felony or a




       1
         In 1988, Hinkson was convicted in Massachusetts of assault and battery on a police
officer. Hinkson served a one-year prison sentence, after which he was deported to Jamaica.
Hinkson subsequently was deported from the United States four more times (in 1991, 1995, 1996
and 2006) and was convicted of illegal reentry three times (in 1990, 1995 and 1999).
       Hinkson’s last illegal reentry conviction occurred in the Eastern District of Texas in
1999. At that time, Hinkson was sentenced as an aggravated felon under 8 U.S.C. § 1326(b)(2)
because he had reentered the United States after having been convicted of a crime of violence
(his 1988 assault and battery offense) and deported. In this case, at both his sentencing and in his
appeal brief to this Court, Hinkson conceded that his 1999 illegal reentry conviction is an
aggravated felony under U.S.S.G. § 2L1.2.
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misdemeanor did not matter because his Texas illegal reentry conviction supported

the eight-level enhancement.

      Accordingly, any alleged error in accepting the PSI’s characterization of the

Boston conviction as a felony was harmless and would not warrant a remand. See

Williams v. United States, 503 U.S. 193, 203, 112 S. Ct. 1112, 1120-21 (1992)

(explaining that remand based on a misapplication of the Sentencing Guidelines is

not required where the reviewing court concludes, based on the record as a whole,

“that the error did not affect the district court’s selection of the sentence

imposed”). Thus, we affirm Hinkson’s 48-month sentence.

      AFFIRMED.




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