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    The United States Court of Appeals for the Fourth Circuit affirmed Craig Hines' conviction and sentence for conspiracy to commit bank robbery, attempted bank robbery, possession of a firearm in furtherance of a crime of violence, and being a felon in possession of a firearm. The court found that the district court did not err in denying Hines' motion to suppress evidence, that the evidence was sufficient to support the convictions, and that the district court properly classified Hines as a career offender for sentencing purposes based on his prior bank robbery convictions.

    Original Description:

    Filed: 2005-07-13 Precedential Status: Non-Precedential Docket: 04-4278

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    The United States Court of Appeals for the Fourth Circuit affirmed Craig Hines' conviction and sentence for conspiracy to commit bank robbery, attempted bank robbery, possession of a firearm in furtherance of a crime of violence, and being a felon in possession of a firearm. The court found that the district court did not err in denying Hines' motion to suppress evidence, that the evidence was sufficient to support the convictions, and that the district court properly classified Hines as a career offender for sentencing purposes based on his prior bank robbery convictions.

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    71 views8 pages

    United States v. Hines, 4th Cir. (2005)

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    The United States Court of Appeals for the Fourth Circuit affirmed Craig Hines' conviction and sentence for conspiracy to commit bank robbery, attempted bank robbery, possession of a firearm in furtherance of a crime of violence, and being a felon in possession of a firearm. The court found that the district court did not err in denying Hines' motion to suppress evidence, that the evidence was sufficient to support the convictions, and that the district court properly classified Hines as a career offender for sentencing purposes based on his prior bank robbery convictions.

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    of 8

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 04-4278

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    versus
    CRAIG DUSHAW HINES,
    Defendant - Appellant.

    Appeal from the United States District Court for the District of
    Maryland, at Baltimore. Richard D. Bennett, District Judge. (CR03-280-RDB)

    Submitted:

    June 10, 2005

    Decided:

    July 13, 2005

    Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.

    Affirmed by unpublished per curiam opinion.

    Timothy J. Sullivan, SULLIVAN & SULLIVAN, College Park, Maryland,


    for Appellant. Thomas M. DiBiagio, United States Attorney, Chan
    Park, Barbara S. Skalla, Assistant United States Attorneys,
    Greenbelt, Maryland, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.


    See Local Rule 36(c).

    PER CURIAM:
    Craig Dushaw Hines (Hines) appeals his conviction and
    sentence, following the district courts denial of a motion to
    suppress, for conspiracy to commit bank robbery, in violation of 18
    U.S.C. 371 (2000); attempted bank robbery, in violation of 18
    U.S.C. 2113(a), (d), (f) (2000); possession of a firearm in
    furtherance of a crime of violence, in violation of 18 U.S.C.
    924(c) (2000); and for being a felon in possession of a firearm
    with an obliterated serial number, in violation of 18 U.S.C.
    922(g)(1) (2000).
    Hines first appeals the denial of his motion to suppress
    evidence obtained as a result of his arrest, asserting that his
    arrest occurred without lawful authority since it was made by
    Montgomery County detectives operating in Prince Georges County,
    acting alone, without a warrant, and in absence of an emergency.
    This Court reviews the district courts factual findings underlying
    a motion to suppress for clear error, and the district courts
    legal determinations de novo.

    Ornelas v. United States, 517 U.S.

    690, 699 (1996); United States v. Perkins, 363 F.3d 317, 320 (4th
    Cir. 2004).

    When a suppression motion has been denied, this Court

    reviews the evidence in the light most favorable to the government.


    United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998).
    Maryland law provides that a police officer may make
    arrests and conduct investigations in a foreign jurisdiction in

    - 2 -

    Maryland only when the officer is (1) participating in a joint


    investigation with at least one officer who has local jurisdiction,
    (2) rendering assistance to another officer, (3) acting at the
    request of a state police officer, or (4) if an emergency exists.
    See Md. Crim. Pro. Code Ann. 2-102(b)(3) (2004 Supp.).

    Based on

    the applicable law, and construing the evidence in the light most
    favorable to the Government, we find that the district court did
    not err when it denied Hines motion to suppress.
    Hines next argues that the evidence was insufficient to
    support the substantial step element required for an attempted
    bank robbery conviction.

    To determine if there was sufficient

    evidence to support a conviction, this Court considers whether,


    taking the evidence in the light most favorable to the Government,
    substantial evidence supports the jurys verdict. United States v.
    Wills, 346 F.3d 476, 495 (4th Cir. 2003), cert. denied, 124 S. Ct.
    2906 (2004).

    Substantial evidence is defined as that evidence

    which a reasonable finder of fact could accept as adequate and


    sufficient to support a conclusion of a defendants guilt beyond a
    reasonable doubt.

    United States v. Newsome, 322 F.3d 328, 333

    (4th Cir. 2003) (quoting United States v. Burgos, 94 F.3d 849, 86263 (4th Cir. 1996) (en banc)).

    The Court reviews both direct and

    circumstantial evidence and permits the [G]overnment the benefit


    of all reasonable inferences from the facts proven to those sought

    - 3 -

    to be established. United States v. Tresvant, 677 F.2d 1018, 1021


    (4th Cir. 1982).
    Furthermore,

    this

    Court

    applies

    two-part

    test

    to

    determine if a person is guilty of attempting to commit a crime.


    United States v. McFadden, 739 F.2d 149, 152 (1980).

    First, the

    defendant must have acted with the kind of culpability otherwise


    required for the commission of a crime.

    Id.

    Second, the defendant

    must have engaged in the kind of conduct that constitutes a


    substantial step toward committing that crime.

    Based on our

    careful review of the record, we find that the evidence was


    sufficient to prove that Hines intended to commit bank robbery,
    that he had taken a substantial step in furtherance of his plan,
    and, in fact, was executing the plan at the time of his arrest.
    Hines

    next

    asserts

    that

    the

    evidence

    was

    also

    insufficient to support the element of in furtherance of a crime


    of violence that was required for his 924(c) conviction.

    In

    reviewing claims of sufficiency of the evidence, [t]he relevant


    question is not whether the appellate court is convinced of guilt
    beyond a reasonable doubt, but rather whether, viewing the evidence
    in the light most favorable to the government, any rational trier
    of facts could have found the defendant guilty beyond a reasonable
    doubt.

    Tresvant, 677 F.2d

    at 1021.

    Hines argues that the

    evidence was insufficient to demonstrate that he actively used or


    carried a firearm in furtherance of a crime of violence. Hines

    - 4 -

    conviction, however, was under the possessed in furtherance prong


    and not the use or carry prongs of 924(c), thus, whether
    Hines used or carried the firearm is irrelevant.

    Nevertheless,

    even assessing Hines actions under the possessed in furtherance


    prong, his argument is without merit. See United States v. Lomax,
    293 F.3d 701, 705 (4th Cir. 2002) (construing the in furtherance
    of provision of 924(c) to require the government to present
    evidence indicating that the possession of a firearm furthered,
    advanced, or helped forward a drug trafficking crime).
    Hines also contends that the district court erred as a
    matter of law in concluding that he was a career offender.

    In

    1994, Hines was convicted of two separate bank robberies that he


    committed in 1993.

    Based on these convictions, the district court

    found that Hines was a career offender pursuant to U.S. Sentencing


    Guidelines Manual (USSG) 4B1.1 (2002).

    The sole issue before

    the Court in connection with Hines career offender status is


    whether the district court erred in finding that the two bank
    robberies were separate offenses for sentencing purposes, and not
    part of a common scheme or plan.

    See USSG 4A1.2, cmt. (n.3).

    The defendant has the burden of proving the existence of


    a common scheme.

    United States v. Joy, 192 F.3d 761, 771 (7th Cir.

    1999); United States v. Cowart, 90 F.3d 154, 159 (6th Cir. 1996).
    The relevant factors in deciding whether offenses are part of a
    single common scheme or plan are whether the crimes:

    - 5 -

    (1) were

    committed within a short period of time; (2) were committed in


    close geographic proximity; (3) involved the same substantive
    offense; (4) were directed at a common victim; (5) were solved
    during the course of a single criminal investigation; (6) shared a
    similar modus operandi; (7) were animated by the same motive; and
    (8) were tried and sentenced separately only because of an accident
    of geography. United States v. Breckenridge, 93 F.3d 132, 138 (4th
    Cir. 1996) (citations omitted).

    Not all of these factors must be

    present for there to be a common scheme or plan, nor does the


    presence of a few of them require that finding.

    Id.

    We find that

    Hines has failed to meet his burden.


    Finally, Hines asserts that under the Supreme Courts
    decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), the
    district court imposed an unconstitutional sentence by finding that
    he was a career offender predicated on prior convictions that were
    not alleged in the indictment or found by the jury.

    In Almendarez-

    Torres v. United States, 523 U.S. 224 (1998), the Supreme Court
    held that the government need not allege in its indictment and
    need not prove beyond reasonable doubt that a defendant had prior
    convictions for a district court to use those convictions for
    purposes of enhancing a sentence.

    In Apprendi v. New Jersey, 530

    U.S. 466, 490 (2000), the Supreme Court held [o]ther than the fact
    of a prior conviction, any fact that increases the penalty for a
    crime beyond the prescribed statutory minimum must be submitted to

    - 6 -

    a jury, and proved beyond a reasonable doubt.

    In United States v.

    Booker, 125 S. Ct. 738 (2005), the Supreme Court reaffirmed its
    holding in Apprendi.

    See Booker, 125 S. Ct. at 756 ([a]ny fact

    (other than a prior conviction) which is necessary to support a


    sentence exceeding the maximum authorized by the facts established
    by a plea of guilty or a jury verdict must be admitted by the
    defendant or proved to a jury beyond a reasonable doubt).
    However,

    this

    Court

    has

    stated

    that

    not

    all

    facts

    relating to prior convictions fall within the Apprendi exception


    framework.

    In United States v. Washington, 404 F.3d 834, 842 (4th

    Cir. 2005), this Court, applying the Supreme Courts decision in


    Shepard v. United States, 125 S. Ct. 1254 (2005), held that relying
    on facts outside the indictment in order to conclude a prior
    conviction for burglary was a crime of violence that enhanced the
    defendants

    offense

    level

    was

    plain

    error.

    Hines

    case

    is

    distinguishable, however, because the courts determination was


    based on the plea agreement and statement of facts relative to
    those convictions.

    We therefore find that the district courts

    findings were not improper in light of Shepard, 125 S. Ct. at 1263


    (holding that a courts inquiry as to disputed facts in connection
    with a prior conviction is limited to the terms of the charging
    document, a plea agreement, a transcript of the plea colloquy, or
    a comparable judicial record) or Washington, 404 F.3d at 842 n.10

    - 7 -

    (noting that the Governments representations as to the disputed


    facts were not specified in the charging and plea documents).
    Accordingly, we affirm Hines conviction and sentence.
    We

    dispense

    with

    oral

    argument

    because

    the

    facts

    and

    legal

    contentions are adequately presented in the materials before the


    court and argument would not aid the decisional process.

    AFFIRMED

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