                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-4875


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

KENNETH GLENN HINSON,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:07-cr-00485-TLW-1)


Argued:   December 2, 2009                 Decided:   February 2, 2010


Before NIEMEYER and AGEE, Circuit Judges, and John Preston
BAILEY, Chief United States District Judge for the Northern
District of West Virginia, sitting by designation.


Vacated and remanded for resentencing by unpublished opinion.
Judge Bailey wrote the opinion, in which Judge Niemeyer and
Judge Agee joined.


ARGUED: Michael Williams Chesser, Aiken, South Carolina, for
Appellant.   Rose Mary Sheppard Parham, OFFICE OF THE UNITED
STATES ATTORNEY, Florence, South Carolina, for Appellee.  ON
BRIEF: W. Walter Wilkins, United States Attorney, Columbia,
South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
BAILEY, Chief District Judge:

     The     issue     presented       by       this    appeal      is   whether     the

defendant’s 1989 South Carolina conviction for trafficking in

cocaine may be used in determining that the defendant is an

Armed Career Criminal for purposes of 18 U.S.C. § 924(e).                                We

determine that the conviction may not be used to enhance the

defendant’s     sentence       and,    therefore,         remand     this   case     for

resentencing.



                                            I.

     On    March     17,   2006,      Kenneth        Glenn     Hinson    (Hinson)    was

arrested in Darlington County, South Carolina, on outstanding

state arrest warrants.             At the time of his arrest, officers

found a Hi-Point 9 millimeter semi-automatic pistol tucked into

his waistband at the small of his back.                   Hinson was subsequently

indicted   on   one    count    of    being      a     felon   in   possession      of    a

firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and

924(e).    On November 8, 2007, a federal jury convicted Hinson of

felon in possession of a firearm and ammunition after a one day

trial.

     Prior    to     sentencing,      the    United      States     Probation    Office

determined that Hinson was an Armed Career Criminal for purposes

of § 924(e).       As an Armed Career Criminal, the possible sentence

was increased from a maximum of ten (10) years, to a minimum of

                                            2
fifteen (15) years and a maximum of life, with a guideline range

of 262 to 327 months.                The three convictions found by the

sentencing    court    to    be    qualifying     predicate          offenses     are   as

follows:    (1)     1983    Aggravated      Assault         and    Battery;    (2)    1989

Trafficking    in    Cocaine;       and   (3)    1991       Second    Degree     Criminal

Sexual Conduct.

     Hinson admits that two of the three convictions qualify as

predicate     offenses      under    18    U.S.C.       §    924(e)     (Armed    Career

Criminal Act or ACCA).            The predicate conviction to which Hinson

objects, and which forms the basis of this appeal, is his 1989

trafficking conviction.           Hinson objected to the inclusion of the

conviction as a predicate offense before the district court, but

the Court overruled the objection, finding that United States v.

Brandon, 247 F.3d 186 (4th Cir. 2001) did not apply to Hinson’s

South Carolina trafficking conviction; and, in the alternative,

the search warrant return from Hinson’s trafficking case was a

comparable     judicial      record       that   could        be     considered      under

Shepard v. United States, 544 U.S. 13 (2005). 1                        The sentencing


     1
        The search warrant return included the following: nine
five-dollar bills, forty-nine one-hundred dollar bills, eight
ten-dollar bills, fifty-eight twenty-dollar bills, fifty-two
one-dollar bills, three small plastic bags containing a large
quantity of white powder, a brown medicine bottle containing
four plastic bags with white powder, one pack of rolling papers,
one cellophane bag containing a green leafy substance, one
Uniden    radar  detector,   one   wallet   containing   various
identification cards, one razor blade, one H & R 22 caliber
(Continued)
                                           3
court      overruled      the    remainder         of    defendant’s       objections     and

sentenced defendant to 300 months imprisonment, five (5) years

of supervised release, and a $100.00 special assessment.



                                              II.

        This Court reviews de novo whether a previous conviction

qualifies as a predicate offense under the Armed Career Criminal

Act.       United States v. Harcum, 587 F.3d 219, 222 (4th Cir.

2009).       “The Government bears the burden of proving an ACCA

predicate offense by a preponderance of the evidence.”                           Id.

        “The ACCA mandates a minimum fifteen-year prison sentence

for    a   person    who    is    convicted         of     unlawful       possession    of   a

firearm,     and    who    ‘has    three       previous         convictions     ...    for    a

violent felony or a serious drug offense, or both, committed on

occasions different from one another.’                          18 U.S.C. § 924(e)(1).”

Id.     The ACCA defines a “serious drug offense” as “an offense

under      State    law,    involving         manufacturing,           distributing,         or

possessing         with    intent       to     manufacture           or     distribute,      a

controlled         substance      ...        for        which    a    maximum    term        of




pistol model 922, North American .22 caliber ammunition, 22
bullets, one pack yellow twist ties, two boxes of plastic bags,
two boxes of trash bags, strips of plastic bags and numerous
white twist ties. J.A., pp. 185-186.


                                               4
imprisonment of ten years or more is prescribed by law.”                                    18

U.S.C.A. § 924(e)(2)(A)(ii).

       “In   assessing       whether       an     offense     constitutes          an    ACCA

predicate       offense,      two    types       of     analyses      are    potentially

applicable      -   known     as     the    ‘categorical’           approach       and    the

‘modified categorical’ approach.”                 Id.

       We must first utilize the categorical approach.                         Under that

approach,     we    analyze    the    offense         “generically     -    that    is,    by

relying solely on its essential elements, rather than on the

particular underlying facts.” Id.; United States v. White, 571

F.3d 365, 368 (4th Cir. 2009) (citing James v. United States,

550 U.S. 192, 208 (2007)). Under the categorical approach, the

sentencing court may look only to the fact of conviction and the

statutory definition of the offense of conviction to determine

whether the offense is a “serious drug offense” or a “violent

felony.”     Id., citing Shepard v. United States, 544 U.S. 13, 17

(2005) and Taylor v. United States, 495 U.S. 575, 600-02 (1990).

       “Although the Supreme Court has expressed its preference

for    the   categorical      approach,         that    approach     does    not        always

reveal the nature of the asserted predicate offense encountered

by a sentencing court.              Thus, pursuant to the Court's decisions

in    Shepard    and   Taylor,      when    the       fact   of    conviction      and    the

statutory       definition     of     the       offense      are    unduly      vague      or

ambiguous, a sentencing court is entitled to turn to and apply

                                             5
the    alternative       ‘modified         categorical’          approach.          See    Shepard,

544 U.S. at 20, 26; Taylor, 495 U.S. at 602.                                In its 1990 Taylor

decision, for example, the Supreme Court was unable, under the

categorical       approach,        to      determine        whether         Taylor's       burglary

offense qualified as a ‘violent felony’ under the ACCA, because

the record did not reflect which specific state burglary statute

was applicable, and not all of the state's burglary statutes

involved criminal conduct that would qualify as an ACCA violent

felony.      See       495    U.S.    at    578      n.    1,    602.        Thus,     the      Court

recognized that a sentencing court is entitled, in the proper

circumstances,          to    go     beyond       the      scope       of     the    categorical

approach and assess the underlying charging documents or jury

instructions to ascertain whether the offense qualifies as an

ACCA    predicate       offense.           See    id.      at    602    (utilizing         modified

categorical approach for cases involving jury convictions); see

also    Shepard,        544    U.S.        13    (expanding            modified      categorical

approach     to    situations        involving            plea   agreements).”                 Harcum,

supra at 223.

       The   statute         under      which     Hinson         was     convicted         in    1989

provides that “[a]ny person who knowingly sells, manufactures,

delivers or brings into this State, or who provides financial

assistance        or   otherwise         aids,       abets       or     conspires         to    sell,

manufacture       or    deliver      or     bring       into     this       State,    or       who   is

knowingly in actual or constructive possession of . . . ten

                                                 6
grams or more of cocaine or any mixtures containing cocaine . .

. is guilty of a felony known as trafficking in cocaine . . ..”

S.C. Code § 44-53-370(e)(2).

       This statute may be violated both by conduct that falls

within the ACCA definition of “serious drug felony” and conduct

that does not fall within the definition; thus, we turn to the

indictment.       United States v. Brandon, 247 F.3d 186 (4th Cir.

2001).

        The indictment underlying the 1989 conviction charges that

“Kenneth Hinson did in Darlington County on or about the 18th

day    of   November,    1988   ,    unlawfully        and   knowingly   possess      a

quantity     of    cocaine,     to   wit:      more    than    (10)    grams,     such

substance being a controlled substance in violation of section

44-53-370(E)(2) of the 1976 Code of Laws of South Carolina.”

J.A. 180.

        Based upon the foregoing, it would appear that the 1989

conviction involved only possession, not possession with intent

to    distribute,    and   would     not     satisfy     the   requirements     of    a

predicate sentence under the ACCA.              See Brandon, supra at 189.

       In Brandon, this Court went further to determine whether

the     prior     conviction    involved        possession      with     intent      to

distribute, even if not a formal element of the crime under

state    law.      The   Brandon     Court     noted    that   “[i]n   cases    where

enhancement under section 924(e) is hinged not on the elements

                                           7
of   the         underlying        crime     but    on    whether          the   crime    ‘involves’

particular           conduct,         courts       follow       the    approach       outlined       in

Taylor and ask whether the proscribed conduct is an inherent

part        or    result      of     the    generic       crime       of    conviction,      without

regard to the facts surrounding the underlying conviction, or,

stated           somewhat          differently,          whether           the    abstract        crime

intrinsically involves the proscribed conduct.”                                       247 F.3d at

191.

        In       Brandon,       we    held      that     intent        to    distribute      is     not

inherent in the generic conduct of trafficking by possession

where the amount of cocaine possessed was 28 grams.                                      It follows,

then,        that      intent        to     distribute          is     not       inherent    in     the

possession of 10 grams of cocaine.

        The Government urges this Court to determine the character

of the previous conviction by reference to the return of the

search           warrant. 2          Specifically,            the    Government       argues      that

“[b]ecause           the      search       warrant       is    a     judicial      record,     it   is

admissible under Shepard.”                         Response Brief at 16.                  Under the

facts of this case, we disagree.

        “When,        as      here,       the   underlying           statute       prohibits      both

qualifying and non-qualifying offenses, the sentencing court may

‘determin[e] the character of’ the prior offense by ‘examining

        2
       The Government concedes that no other                                         documentation
relating to the 1989 conviction can be located.


                                                     8
the     statutory       definition,        charging        document,      written        plea

agreement, transcript of plea colloquy, and any explicit factual

finding by the trial judge to which the defendant assented,’

United      States     v.   Maroquin-Bran,         587    F.3d    214,   218    (4th     Cir.

2009)(quoting          Shepard,   544     U.S.     at    16),     or   “some    comparable

judicial record of this information.”                    Shepard, 544 U.S. at 26.

      Consideration         of    the    return      of    the     search      warrant    is

foreclosed by Shepard.              In United States v. Harcum, 587 F.3d

219, 224 (4th Cir. 2009), we held that “the Supreme Court has

barred a sentencing court from considering unreliable evidence,

which       includes    materials       that   are      outside    the   record    of     the

court of conviction.              See Shepard, 544 U.S. at 20-23 (barring

sentencing court from considering police report and complaint

application, which extended ‘beyond conclusive records made or

used in adjudicating guilt’).                  More specifically, in assessing

whether the offense of conviction is a predicate offense under

the ACCA, a sentencing court may, under the modified categorical

approach, appropriately consider only ‘the statutory definition,

charging document, written plea agreement, transcript of plea

colloquy, and any explicit factual finding by the trial judge to

which the defendant assented.’                 Id. at 16.” 3


        3
       Subsequent to the Court's Shepard decision, this Court
approved a sentencing court's utilization, under the modified
categorical approach, of certain “external documents” - beyond
(Continued)
                                               9
      A search warrant return is not a judicial record comparable

to    this   narrow     range   of   documents,     which    memorialize      “the

defendant’s       own   admissions      or   accepted       findings    of    fact

confirming the factual basis for a valid plea.”                    Id. at 25.

Like the “warrant affidavit” considered by the Sixth Circuit in

United States v. McGrattan, 504 F.3d 608 (6th Cir. 2007), a

search warrant return is more “akin to the police report” deemed

“inadmissible in Shepard” than it is to a “charging document,”

as the search return is not filed “in furtherance of formal

prosecution and thus does not determine whether an earlier plea

or conviction was for a [particular] offense.”                 504 F.3d at 616

(quotations omitted).

      Hinson’s sentence must be vacated and this case remanded to

the    District     Court   for      resentencing    consistent        with   this

opinion.

                                     VACATED AND REMANDED FOR RESENTENCING




the scope of otherwise permissible items - because they were
“explicitly incorporated” into permissible documents.      See
United States v. Simms, 441 F.3d 313, 317 (4th Cir. 2006).
There is no contention here that the return of search warrant
was “explicitly incorporated” into a permissible document.




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