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United States v. Hinkson

United States District Court, N.D. Georgia, Atlanta Division

September 8, 2017

UNITED STATES OF AMERICA,
v.
OWEN GARTH HINKSON, Defendant.

          OPINION AND ORDER

          WILLIAM S. DIJFFEY, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the parties' sentencing memoranda [26], [27] on whether the maximum authorized punishment in this case is 20 years imprisonment under 8 U.S.C. § 1326(b)(2).

         I. BACKGROUND

         Defendant Owen Garth Hinkson (“Defendant”) is a Jamaican citizen. (Presentence Investigation Report (Aug. 29, 2017) (“PSR”) ¶¶ 7, 9). On November 16, 1987, he pleaded guilty in Boston Massachusetts Municipal Court to assault and battery of a police officer (the “1987 Assault and Battery Conviction”). (PSR ¶ 45). On June 19, 1989, after serving a one-year prison sentence, he was deported to Jamaica. (PSR ¶¶ 7, 45); United States v. Hinkson, 556 F. App'x 837, 838 n.1 (11th Cir. 2014). On September 20, 1990, Defendant was convicted in the United States District Court for the District of Massachusetts of illegal reentry by a previously deported alien. (PSR ¶ 35). On June 18, 1991, he was again deported to Jamaica. (PSR ¶¶ 7, 35). On February 27, 1995, after entering the United States illegally, he was deported a further time for violating the conditions of his supervised release. (PSR ¶ 35).

         On July 24, 1995, Defendant was convicted in the United States District Court for the Northern District of Georgia of illegal reentry by a previously deported alien. (PSR ¶ 36). On October 31, 1996, after serving a sentence of imprisonment, he was deported to Jamaica. (PSR ¶ 36). On June 14, 1999, Defendant pleaded guilty in the United States District Court for the Eastern District of Texas to illegal reentry by a previously deported alien, in violation of 8 U.S.C. §§ 1326(a) and (b)(2) (the “1999 Texas Illegal Reentry Conviction”). (PSR ¶ 37; [26] at 4). The Texas court “sentenced [Defendant] 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 [sic] assault and battery offense) and deported.” Hinkson, 556 F. App'x at 838 n.1. Defendant received a prison sentence of 110 months and, on December 21, 2006, he was again deported to Jamaica. (PSR ¶ 37).

         On February 1, 2005, Defendant's 1987 Assault and Battery Conviction was vacated by docket entry. (PSR ¶ 45; [26] at 4; [27] at 3). The docket entry does not explain why the conviction was vacated. (PSR ¶ 45; [26] at 4; [27] at 3).

         On August 10, 2012, Defendant was convicted in the United States District Court for the Northern District of Georgia of illegal reentry by a previously deported alien, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). (PSR ¶ 38). The district court found, and the parties agreed, that Defendant's 1999 Texas Illegal Reentry Conviction constituted an aggravated felony “due to the 1987 assault and battery conviction.” See Hinkson, 556 F. App'x at 838 & n.1; ([26] at 8-9; [27] at 6). On September 24, 2015, after serving a prison sentence, Defendant again was deported to Jamaica. (PSR ¶¶ 7, 38).

         On February 21, 2017, after again reentering the United States, a grand jury in the Northern District of Georgia returned an Indictment [1] charging Defendant with one count of illegal reentry of a previously deported alien, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). On June 22, 2017, Defendant pleaded guilty to the charge alleged in the Indictment. ([22]). On August 29, 2017, the Government filed its Sentencing Memorandum [26], arguing that the Court is authorized, under 8 U.S.C. § 1326(b)(2), to sentence Defendant to a maximum of 20 years in prison because he is an alien “whose removal was subsequent to a conviction for commission of an aggravated felony.” 8 U.S.C. § 1326(b)(2). On September 1, 2017, Defendant filed his Response to the Government's Sentencing Memorandum [27]. Defendant argues that his prior removals were not subsequent to an “aggravated felony conviction, ” under Section 1326(b)(2), because his 1987 Assault and Battery Conviction was vacated on February 1, 2005.

         II. DISCUSSION

         Under Section 1326(a), the maximum sentence for illegal reentry of a previously deported alien is two years imprisonment. 8 U.S.C. § 1326(a). Subsection (b)(2) authorizes a maximum sentence of 20 years, however, for aliens “whose removal was subsequent to a conviction for commission of an aggravated felony.” 8 U.S.C. § 1326(b)(2).[1] The term “aggravated felony” includes, among other offenses, (1) “a crime of violence” and (2) illegal reentry “by an alien who was previously deported on the basis of a conviction for [another aggravated felony, such as a crime of violence].” 8 U.S.C. §§ 1101(a)(43)(F), (O). A “crime of violence” is (1) “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, ” or (2) “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 18 U.S.C. § 16.

         A. Whether Defendant Committed an Aggravated Felony

         In 1987, Defendant was convicted, in Massachusetts state court, of assaulting and battering a police officer. This offense “requires proof of either the intentional and unjustified use of force or the intentional commission of a wanton or reckless act causing physical or bodily injury to another.” Com. v. Gordon, 974 N.E.2d 645, 652-53 (Mass. App. Ct. 2012).[2] The Court finds, and Defendant does not meaningfully dispute, that this constitutes a “crime of violence” under 18 U.S.C. § 16 and that it thus qualifies as an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(F). See, e.g., Blake v. Gonzales, 481 F.3d 152, 163 (2d Cir. 2007) (finding that the Massachusetts offense of assault and battery of a police officer is a “crime of violence” under 18 U.S.C. § 16); cf. United States v. Santos, 363 F.3d 19, 23 (1st Cir. 2004) (“[V]iolence, the use of force, and a serious risk of physical harm are all likely to accompany an assault and battery upon a police officer.”).[3]

         Defendant's 1999 Texas Illegal Reentry Conviction also constitutes an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(O). The Texas court “sentenced [Defendant] 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 198[7] assault and battery offense) and deported.” Hinkson, 556 F. App'x at 838 n.1. Defendant thus was convicted of illegal reentry after “previously [being] deported on the basis of a conviction” of a crime of violence. 8 U.S.C. § 1101(a)(43)(O). Defendant's 1999 Texas Illegal Reentry Conviction constitutes an aggravated felony under the plain language of Section 1101(a)(43)(O). See United States v. Zamora, 519 F. App'x 251, 252 (5th Cir. 2013) (“[A] conviction for illegal reentry under § 1326(b)(2) is an aggravated felony within the meaning of § 1101(a)(43)(O).”).

         Defendant appears to argue that his 1999 Texas Illegal Reentry Conviction is not an aggravated felony, under Section 1101(a)(43)(O), because his 1987 Assault and Battery Conviction was vacated in 2005. The Eleventh Circuit considered a similar argument in United States v. Orduno-Mireles, 405 F.3d 960 (11th Cir. 2005). In Orduno-Mireles, the defendant's sentence was enhanced because the defendant reentered the United States having been previously . . . deported . . . after . . . a conviction for a felony that is . . . a crime of violence.” Id. at 962 n.1. The district court applied the sentencing enhancement because the defendant had a felony conviction when he was previously deported, even though the conviction was vacated before sentencing. The Eleventh Circuit affirmed the district court's application of the sentencing enhancement, and rejected defendant's “novel argument that since he successfully got []his conviction vacated after illegally returning to the United States, the offense should not count for the purposes of the [sentencing enhancement provision].” Id. The court held that, “[b]y its plain language, the [provision's] relevant time period is the time of deportation, not the time of sentencing for an illegal reentry conviction.” Id. The court found that the sentencing enhancement applied because defendant ‚Äúpreviously was deported after a conviction for a felony that is a crime of violence, ...


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