UNPUBLISHED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. (CR- 03-280-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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 court’s 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 George’s County,
acting alone, without a warrant, and in absence of an emergency.
This Court reviews the district court’s factual findings underlying
a motion to suppress for clear error, and the district court’s
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 jury’s 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 defendant’s 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, 862-
63 (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 a 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.
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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. (CR- 03-280-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 court’s 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 George’s County,
acting alone, without a warrant, and in absence of an emergency.
This Court reviews the district court’s factual findings underlying
a motion to suppress for clear error, and the district court’s
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 jury’s 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 defendant’s 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, 862-
63 (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 a 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: (1) were
- 5 - 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 Court’s
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 Court’s 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
defendant’s offense level was plain error. Hines’ case is
distinguishable, however, because the court’s determination was
based on the plea agreement and statement of facts relative to
those convictions. We therefore find that the district court’s
findings were not improper in light of Shepard, 125 S. Ct. at 1263
(holding that a court’s 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 Government’s 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
- 8 -