United States v. Hines
United States v. Hines
Opinion of the Court
ORDER
In October 1999 Brian Hines was convicted of one count of possession of a firearm by a felon, see 18 U.S.C. § 922(g)(1), and was, sentenced to 51 months of incarceration followed by three years of supervised release. He began serving his term of supervised release in October 2001, but in December 2003 the government petitioned to revoke it, alleging that Hines had left the United States and reentered with a false birth certificate and false driver’s license in violation of the conditions of his release that he not commit another crime and not leave the district of supervision without authorization. In January 2004 the government filed a supplemental petition, alleging in addition that Hines possessed a hatchet in violation of the condi
This case arose when Hines was stopped at the border trying to enter the State of New York from Canada. He identified himself as Huthaifa Abdul-Hakeem and offered an Ohio driver’s license to support his identity. After conducting a fingerprint check, agents determined Hines’s real identity and discovered that he was on supervised release. They released Hines and notified his probation officer. The district court issued a warrant for Hines’s arrest, and when agents went to his home to execute the warrant, Hines consented to a search of his vehicle. In Hines’s truck the officers found a metal hatchet, several identification cards bearing a false name, an embossing device that reads “Seal of Cook County of Illinois,” and a notary public ink stamp bearing the name of Mark Fisher of Mecklenburg County, North Carolina.
The district court held a hearing and ultimately determined that Hines had entered the United States with false identification, possessed additional false identification documents with the intent to defraud, and possessed access devices with the intent to defraud, which the district court considered to be Grade B violations of supervised release. See U.S.S.G. § 7B1.1. The court also concluded that Hines had left the district of his supervision without authorization and possessed a dangerous weapon, both Grade C violations of supervised release. See id. After the revocation hearing, a probation officer prepared a sentencing report and concluded that, because Hines had committed a Grade B violation and fell within a criminal history category of three, the guidelines suggested a sentencing range of 8 to 14 months. The probation officer recommended, however, that the court instead impose two years of imprisonment — the maximum term of imprisonment allowed by statute. See 18 U.S.C. § 3583(e)(3) (two-year statutory maximum sentence following revocation of supervised release imposed for a Class B felony); id. § 3559(a)(3) (offenses punishable by 10 to 25 years are class B felonies); id. § 924(a)(2) (violations of § 922(g) are punishable by up to 10 years). The district court followed the recommendation of the probation officer and sentenced Hines to two years of imprisonment.
In her Anders brief, counsel first considers whether Hines might challenge the court’s determination that he violated
Counsel also considers arguing that the district court abused its discretion in failing to notify Hines of its intention to sentence him above the range recommended in the sentencing guidelines. As counsel correctly notes, however, courts are not bound to impose a sentence within the guideline ranges for violations of supervised release. See U.S.S.G. Ch. 7 Pt. A(l); United States v. Marvin, 135 F.3d 1129, 1136-37 (7th Cir. 1998). Judges may impose the maximum term of imprisonment allowed by statute. Based on Hines’s conduct, the statutory maximum in this case was two years. See 18 U.S.C. § 3583(e)(3) (two-year statutory maximum sentence following revocation of supervised release imposed for a Class B felony). We agree with counsel that it would be frivolous to argue that the court erred in imposing the maximum sentence allowed by statute or that the court was required to give Hines notice before deciding to impose a two-year sentence.
Counsel next considers arguing that the district court erred by limiting argument at the revocation hearing to matters that affected the court’s decision to revoke Hines’s supervised release. Specifically, at the revocation hearing when Hines’s counsel began to discuss whether the hatchet found in Hines’s car qualified as a dangerous weapon and whether there was sufficient evidence that Hines intended to defraud anyone with the identification cards and access devices found in his possession, the district court said that it would not be basing its decision to revoke Hines’s supervision on these matters. The court
Counsel finally considers arguing that the district court relied on inaccurate information when deciding to give Hines a two-year term of imprisonment. Specifically, when explaining why he was giving Hines the maximum term of imprisonment allowed by the statute, the judge said:
Why am I doing this? You know Mr. Muhammad, I wanted to believe in you from the very first time I saw you and hoped that you might change your conduct. But, as the reporting probation officer observes in his report to me, that you do not appear, you have a criminal history approaching 15 years of criminal activity, and you don’t appear to be losing any vigor in regards to your criminal activity, witness: you were found in possession of these fraudulent documents and materials from which you could create further fraudulent documents.
You bought an automobile under a fraudulent name, financed it through a bank. I heard all of that testimony. You have been consistently, consistently involved in criminal activity while you have been on supervised release.
(Tr. of Sentencing Hear’g at 40). There was no evidence, however, that Hines bought an automobile under a fraudulent name or financed it though a bank. But there is also no evidence in the record to prove that this information was inaccurate. Counsel did not object at the sentencing hearing and make a record on this issue. If counsel was ineffective for failing to object, Hines would need to raise that argument in a collateral proceeding under 28 U.S.C. § 2255, in which he can develop the record. Furthermore, Hines would also be unable to prove that the judge relied on the allegedly mistaken information. Reading the judge’s comments in context, it appears that the district court was expressing a general concern that Hines had continued his illegal behavior while on supervised release, not a specific concern about any illegal conduct with respect to the vehicle. And although there is no evidence in the record to suggest that Hines bought an automobile under a fraudulent name, there was evidence that Hines had continued his illegal activities by possessing fraudulent identification documents and devices that he could use to make additional fraudulent documents. So we agree with counsel that it would be frivolous to argue that the judge based his decision on inaccurate information.
Accordingly we GRANT counsel’s motion to withdraw and DISMISS the appeal.
Reference
- Full Case Name
- United States v. Brian L. HINES a/k/a Imam ABU Muhammad
- Status
- Published