    16-913-cr
    United States v. Hill

                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER
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        At a stated term of the United States Court of Appeals for the Second Circuit, held at
    the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
    York, on the 24th day of April, two thousand seventeen.

    PRESENT:
                        AMALYA L. KEARSE,
                        JOHN M. WALKER, JR.,
                        PETER W. HALL,
                             Circuit Judges.

    United States of America,
                             Appellee,

                        v.                                   No. 16-913-cr

    Shawn Hill,
                             Defendant-Appellant.


    FOR APPELLANT:                                    ROBERT M. FROST, JR., Frost Bussert LLC,
                                                      New Haven, CT.

    FOR APPELLEE:                                     JOHN H. DURHAM, Assistant United States
                                                      Attorney (Marc H. Silverman, Assistant
                                                      United States Attorney, on the brief), for
                                                      Deirdre M. Daly, United States Attorney for
                                                      the District of Connecticut, New Haven, CT.
   Appeal from a judgment of the United States District Court for the District of Connecticut

(Chatigny, J.).

   UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

   Defendant-Appellant Shawn Hill appeals his sentence of 72 months’ imprisonment, entered

after he pled guilty to the offense of unlawful possession of a firearm by a convicted felon. We

assume the parties’ familiarity with the underlying facts and the procedural history of the case.

   The sole issue on appeal is whether the district court committed procedural error in

determining that Hill’s prior state law conviction, based on his guilty plea to possession of

narcotics with intent to sell in violation of Conn. Gen. Stat. § 21a-277(a), was a controlled

substance offense within the meaning of U.S.S.G. §§ 2K2.1(a)(4)(A) and 4B1.2(b), resulting in

an incorrect computation of Hill’s Guidelines range.

   “A sentencing court commits procedural error when it fails to calculate (or incorrectly

calculates) the Guidelines range[.]” United States v. Pattee, 820 F.3d 496, 512 (2d Cir. 2016)

(citing United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc)). “We review de

novo the district court’s determination of whether a prior offense was a ‘controlled substance

offense,’ as defined by U.S.S.G. § 4B1.2[.]” United States v. Savage, 542 F.3d 959, 964 (2d Cir.

2008).

   Prior convictions under Conn. Gen. Stat. § 21a-277(a) are analyzed for sentencing purposes

using the modified categorical approach. See id. at 966. Under this approach, the Government

bears the burden of showing “that the plea ‘necessarily’ rested on a fact identifying the

conviction as a predicate offense.” Id. at 964 (quoting Shepard v. United States, 544 U.S. 13, 24

(2005)).


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    Here, the Government carried its burden by presenting the transcript of proceedings before

the state court, which squarely addressed the matter. The transcript documents, inter alia, the

state court requesting facts from the prosecutor. It documents the state prosecutor then stating

that Hill was apprehended holding 13 bags of crack cocaine in his mouth. It documents the state

court subsequently asking Hill, “Are the facts correct?” And it documents Hill answering “Yes.”

    Hill argues that his simple and unequivocal response of “yes” was insufficient because it

followed a recitation of facts with respect to three charges, he was not asked to admit each fact as

the prosecutor presented it, and he might not have meant to “confirm[] every statement of fact by

the prosecutor in all three files.” Appellant’s Brief at 11. We see no merit in this argument, given

that the transcript shows that Hill was asked at the outset, with respect to the “charge of

possession of narcotics with intent to sell, violation of 21a-277(a), what is your plea, guilty or

not guilty?” He responded, “Guilty.” App’x at 131.

    The record clearly shows that Hill confirmed that he possessed 13 bags of crack cocaine. Hill

does not and cannot seriously dispute that this conduct constitutes possession of a controlled

substance with intent to distribute, which amounts to a “controlled substance offense” under the

Guidelines definition. Compare U.S.S.G. § 4B1.2(b) (“The term ‘controlled substance offense’

means an offense under federal or state law, punishable by imprisonment for a term exceeding

one year, that prohibits the . . . possession of a controlled substance (or a counterfeit substance)

with intent to . . . distribute[.]”), with Conn. Gen. Stat. § 21a-277(a) (“Any person who . . .

possesses with the intent to sell . . . any controlled substance . . . for a first offense, shall be

imprisoned not more than fifteen years[.]”). The district court correctly determined that Hill’s

Connecticut conviction was a controlled substance offense and correctly computed the

Guidelines range accordingly. There was no procedural error.


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   We have considered all of Hill’s arguments to the contrary and find them without merit. The

judgment of the district court is AFFIRMED.

                                           FOR THE COURT:
                                           Catherine O’Hagan Wolfe, Clerk




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