United States v. Kenneth Hart

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 4, 2026
• Docket: 24-4391
• Status: Unpublished

Opinion

USCA4 Appeal: 24-4391 Doc: 64 Filed: 03/04/2026 Pg: 1 of 5

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 24-4391

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

KENNETH WAYNE HART, a/k/a Wayne Hawkins, a/k/a Hawk, a/k/a Big Daddy, a/k/a Billy Reds, a/k/a Billy Red Hart,

Defendant – Appellant.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:17-cr-00376-PJM-1)

Submitted: January 21, 2026 Decided: March 4, 2026

Before KING, THACKER, and RICHARDSON, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Charles Burnham, BURNHAM & GOROKHOV PLLC, Washington, D.C., for Appellant. Kelly O. Hayes, United States Attorney, David C. Bornstein, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 24-4391 Doc: 64 Filed: 03/04/2026 Pg: 2 of 5

PER CURIAM:

At the conclusion of a jury trial in the District of Maryland in March 2020, defendant

Kenneth Wayne Hart was convicted on five criminal charges: conspiracy to distribute and

possess with intent to distribute controlled substances, in contravention of 21 U.S.C. § 846

(Count One); conspiracy to commit sex trafficking by force, fraud, and coercion, in

violation of 18 U.S.C. § 1594(c) (Count Two); sex trafficking by force, fraud and coercion,

in violation of 18 U.S.C. § 1591(a), (b)(1) (Counts Three and Four); and witness tampering,

in contravention of 18 U.S.C. § 1512(a)(2)(A), (C) (Count Five). Hart was sentenced by

the district court in October 2020 to a total prison term of 300 months, which constituted a

downward variance from the advisory Sentencing Guidelines range. In an earlier appeal

by Hart, we vacated his witness tampering conviction and remanded for resentencing with

respect to the remaining four convictions. See United States v. Hart, 91 F.4th 732 (4th Cir.

2024).

On remand, in July 2024, the district court again varied below the advisory

Guidelines range and sentenced Hart to a total prison term of 300 months. In this appeal,

Hart contends that the new sentence is procedurally unreasonable, in that the court

improperly relied on his bare arrest record in resentencing him. Additionally, Hart asserts

that the new sentence is substantively unreasonable because the court should have granted

an even larger downward variance. We have carefully considered Hart’s contentions and

reject them for the reasons that follow.

Starting with the contention that the district court improperly relied on his bare arrest

record, Hart acknowledges that this issue is subject to review for plain error only because

2 USCA4 Appeal: 24-4391 Doc: 64 Filed: 03/04/2026 Pg: 3 of 5

he did not raise it below. See United States v. White, 405 F.3d 208, 215 (4th Cir. 2005).

To establish plain error, Hart must demonstrate that “(1) an error was made; (2) the error

is plain; (3) the error affects substantial rights; and (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” See United States v.

Ramirez-Castillo, 748 F.3d 205, 212 (4th Cir. 2014). Hart’s contention fails under the

second prong of the plain error analysis, in that any error was not plain.

An error qualifies as plain “if the settled law of the Supreme Court or this Circuit

establishes that an error has occurred,” see United States v. Maxwell, 285 F.3d 336, 342

(4th Cir. 2002) (citation modified), or if, in an “exceedingly rare” case, “our sister circuits

have uniformly taken a position on an issue that has never been squarely presented to this

Court,” see United States v. Carthorne, 726 F.3d 503, 516 n.14 (4th Cir. 2013) (citation

modified). Significantly, however, neither the Supreme Court nor this Court has held that

a district court may not consider a bare arrest record in imposing a below-Guidelines

sentence like Hart’s. Indeed, we have concluded only that the Guidelines prohibit reliance

on a bare arrest record in the different circumstance of imposing an upward departure. See

United States v. Dixon, 318 F.3d 585, 591 (4th Cir. 2003); see also United States v.

Williams, 823 F. App’x 128, 132 n.2 (4th Cir. 2020) (“We have yet to decide whether [the

Guidelines’] prohibition on considering a defendant’s prior arrest record applies to a

variance from the Guidelines.”).

That leaves Hart to demonstrate plain error based on uniform decisions of our sister

circuits. But Hart has not established the requisite uniformity, in that he invokes apposite

decisions of just two other courts of appeals. See, e.g., United States v. Zarco-Beiza, 24

3 USCA4 Appeal: 24-4391 Doc: 64 Filed: 03/04/2026 Pg: 4 of 5

F.4th 477, 482 (5th Cir. 2022) (broadly recognizing “that it is error for a district court to

rely on a bare arrest record at sentencing because it does not provide sufficient indicia of

reliability to satisfy due process” (citation modified)); United States v. Mitchell, 944 F.3d

116, 120 (3d Cir. 2019) (similarly observing that “although a court can mention a

defendant’s record of prior arrests that did not lead to conviction, it cannot rely on such a

record”).

In any event, it is not at all clear that the district court actually relied on Hart’s bare

arrest record in resentencing him. At best, the hearing transcript is ambiguous on this point.

Consequently, Hart has otherwise failed to demonstrate plain error. See Esteras v. United

States, 606 U.S. 185, 202-03 (2025) (explaining that, under plain error review, a sentencing

court “will be affirmed unless it is clear or obvious that the . . . court actually relied on [an

impermissible consideration] — because it did so either expressly or by unmistakable

implication” (citation modified)).

Turning to Hart’s separate contention that the district court should have granted an

even larger downward variance, he must rebut the “presumption of reasonableness”

accorded “to a sentence within or below a properly calculated Guidelines range.” See

United States v. Vinson, 852 F.3d 333, 357 (4th Cir. 2017) (citation modified). To do so,

Hart is obliged to “show[] that the sentence is unreasonable when measured against the 18

U.S.C. § 3553(a) factors.” Id. at 357-58 (citation modified). Simply put, Hart has not

made the necessary showing.

4 USCA4 Appeal: 24-4391 Doc: 64 Filed: 03/04/2026 Pg: 5 of 5

Pursuant to the foregoing, we thus reject Hart’s appellate contentions and affirm the

new sentence imposed by the district court in the remand proceedings. *

AFFIRMED

* We deny as moot Hart’s pending motion for permission to file a supplemental brief responding to a new argument raised by the government in a letter to this Court under Federal Rule of Appellate Procedure 28(j). In denying Hart’s motion, we emphasize that it is moot because we do not rely herein on the government’s new argument.