US v. Khaleel Hilliard, No. 12-4180 (4th Cir. 2012)
Annotate this Case
Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4180 UNITED STATES OF AMERICA, Plaintiff Appellee, v. KHALEEL ALI HILLIARD, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:06-cr-00156-NCT-1) Submitted: September 28, 2012 Decided: October 11, 2012 Before KING, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. George E. Crump, III, Rockingham, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Khaleel Ali Hilliard pleaded guilty to one count of credit union (2006), robbery, pursuant to sentenced in 2006. Supp. 2012) a in violation written plea of 18 U.S.C. agreement. § 2113(a) Hilliard was As a result of 28 U.S.C.A. § 2255 (West relief, Hilliard was resentenced, however his sentence was vacated on appeal in light of United States v. Simmons, 649 re-sentenced Simmons, However, F.3d on (4th February Hilliard the 237 no court 2, Cir. 2011). Hilliard 2012. consideration qualified longer After as career imposed a a two-level was of offender. enhancement for obstruction of justice, which it previously found at the 2006 sentencing, but did not apply because the enhancement was moot due to Hilliard s career offender status. court also departed upward one At re-sentencing the criminal Hilliard received a 150-month sentence. history category. Finding no error, we affirm. Hilliard argues that the district court improperly applied a two-level enhancement for obstruction of justice under U.S. Sentencing Guidelines Manual § 3C1.1 (2006) for his attempt at having a witness perjure herself regarding whether he kicked a door in to enter her apartment while fleeing the crime or whether she permitted him inside. He contends that the conversation he had with Government witness William Greene to 2 persuade Karen White to testify that she permitted Hilliard into the apartment was immaterial to the credit union robbery. arguing, he sentence. challenges This court the procedural reviews a reasonableness sentence for States, procedural 552 U.S. reasonableness, 38, 41 we (2007). consider of his reasonableness under a deferential abuse-of-discretion standard. United In so In whether Gall v. determining the district court properly calculated the defendant s Sentencing Guidelines range. Id. at 49-51. The court reviews the district court s factual findings for clear error and [its] legal conclusions de novo. United States v. Llamas, 599 F.3d 381, 387 (4th Cir. 2010). Properly preserved claims of procedural error are subject to harmless error review. United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010). Under USSG § 3C1.1, (A) the defendant s offense level may be increased two levels if the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant s offense of conviction and closely related offense. any relevant conduct; or (ii) a Material evidence means evidence, fact, statement, or information that, if believed, would tend to 3 influence or affect § 3C1.1 cmt. n.6. the issue under determination. USSG Obstructive conduct that occurred prior to the start of the investigation . . . may be covered by this Guideline likely, if to offense. the conduct thwart USSG § the was purposefully investigation 3C1.1 n.1. The or calculated, prosecution endangerment of of and the innocent bystanders is sufficient to support an enhancement under USSG § 3C1.1 for obstruction of justice. United States v. Hicks, 948 F.2d 877, 884 (4th Cir. 1991). Hilliard argues that the obstruction of justice in his case is related to a breaking and entering, but not the credit union robbery. He also argues influence the decision maker. that the conduct would not He mainly rests this portion of the argument on the fact that he pleaded guilty on the second day of trial, therefore the obstruction related to attempting to suborn perjury by a witness did not affect a decision maker. The Government argues that Hilliard attempted to suborn perjury and that it was material and relevant to evidence of guilt and Hilliard s initial defense strategy to implicate one of Greene s sons in the robbery. The district court, while entertaining argument on the enhancement at the first sentencing, found that Greene s testimony that Hilliard asked him to get Ms. White to change her story for trial was more likely true than not and was material 4 to an attempt to escape and related to consciousness of guilt. After reviewing the evidence, we conclude that the court did not err in making these findings, and the enhancement was proper. Next, Hilliard argues that the district court erred in departing upward for under-represented criminal history. Hilliard argues that the court erred in departing upward for four reasons. substantially First, his under-represent criminal the history seriousness history or propensity to commit crimes. of does his not criminal Second, the types of information identified in the Guideline, such as prior sentences that were not counted, sentences of substantially more than one year, pending charges or sentences on other charges, no reliable information of any prior similar conduct not resulting in a criminal conviction, are not present in Hilliard s case. See USSG the court § 4A1.3(a)(2)(A)-(E). made an improper Third, assessment Hilliard of the argues that seriousness of his criminal history by relying, in part, on characteristics of the current offense and by putting undue weight upon his conviction for pointing a gun at a police officer when he was seventeen years old. Finally, Hilliard argues that, had the 2011 Guidelines been used to calculate his sentence instead of the 2006 Guidelines, the additional two criminal history points for commission of the offense less than two years after release from prison would have been eliminated. 5 When the district court imposes a departure or variance sentence, this court considers whether the sentencing court acted reasonably both with respect to its decision to impose such a sentence and with respect to the extent of the divergence from the sentencing range. United States Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). v. The district court has flexibility in fashioning a sentence outside of the Guidelines range, and need only set forth enough to satisfy the appellate court that [it] has considered the parties arguments and has a reasoned basis for its decision. United States v. Diosdado-Star, 630 F.3d 359, 364 (4th Cir.) (citing Rita v. United States, 551 U.S. 338, 356 (2007)), cert. denied, 131 S. Ct. 2946 (2011). A district court may depart upward from the applicable Guidelines range defendant s if criminal reliable information history category indicates that substantially the under represents the seriousness of the defendant s criminal history or the likelihood that the defendant will commit other crimes. USSG § 4A1.3(a)(1), p.s.; see United States v. Whorley, 550 F.3d 326, 341 (4th Cir. 2008) (noting that an under-represented criminal history category is an encouraged basis for departure). To determine whether a departure sentence is appropriate in such circumstances, the Guidelines state that a court may consider prior sentences not used in the criminal history calculation, 6 prior sentences of substantially more than one year for independent crimes committed at different times, prior similar misconduct resolved by civil or administrative adjudication, charges pending at the time of the offense, or prior, similar conduct that did not result in a conviction. USSG § 4A1.3(a)(2), p.s. The Guidelines state factors that may be relied upon in departing upward, but not all of the factors identified need be present. substantially It is sufficient under-represents that the defendant will commit other crimes. district upward. court clearly enumerated the criminal likelihood USSG § 4A1.3. its reasons for history that the Here, the departing It was heavily influenced by Hilliard s previous crimes of violence, including arrest in 1999 for resisting an officer and then, a year later in 2000, for pointing a revolver directly at a police officer, and selling drugs while armed. The court also cited the violent elements of the credit union robbery and getaway. The court rejected the Government s position that the court should move directly to the career offender category after Simmons struck designation. the crimes that qualified Hilliard for the However, the court determined that a reasonable basis of departure would be one criminal history category to category five. 7 On appeal, Hilliard essentially challenges the court s evaluation of the inferences drawn evidence from his and past the reasonableness criminal conduct. of the Although Hilliard disagrees with the court s characterization of his past acts, the court did not rely on an improper basis in departing upward. current Although crime, consideration court the there of discussed were the it court the sufficient current to cited circumstances reasons circumstances substantiate its given and, of the without further, the determination that Hilliard lacked respect for the criminal justice system. We conclude that the departure was reasonable given the grounds stated by the court. See Diosdado-Star, 630 F.3d at 365-66 (finding that the method of deviation from the Guidelines range whether by a departure or by varying is irrelevant so long as at least one rationale is justified and reasonable). We therefore affirm the judgment. oral argument adequately because presented in the the facts and materials We dispense with legal before contentions the court are and argument would not aide the decisional process. AFFIRMED 8
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
