United States v. Christopher Goins, Jr. ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-6136
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER HAROLD GOINS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. Louise W. Flanagan, District Judge. (7:10-cr-00107-FL-1; 7:16-cv-00095-
FL)
Argued: December 11, 2020 Decided: March 3, 2021
Before NIEMEYER, KEENAN, and WYNN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Jennifer Claire Leisten, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Kristine L. Fritz, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: G. Alan
DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney,
Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Christopher H. Goins, Jr. filed a motion in the district court under 28 U.S.C. § 2255to vacate or correct his sentence, contending that based on the Supreme Court’s decision
in Johnson v. United States, 576 U.S. 591 (2015), he no longer qualified for an enhanced
sentence under the Armed Career Criminal Act (the ACCA), 18 U.S.C. § 924(e)(1).
Although the district court agreed that certain convictions designated as ACCA predicate
offenses in the presentence report (PSR) did not support the sentence enhancement, the
court nonetheless concluded that Goins still qualified as an armed career criminal based on
other convictions not designated in the PSR. After the district court denied Goins’ motion,
the district court granted him a certificate of appealability.
Upon review of the parties’ arguments, we hold that under our decision in United
States v. Hodge, 902 F.3d 420 (4th Cir. 2018), the district court plainly erred in upholding
Goins’ sentence as an armed career criminal by substituting convictions not designated in
the PSR as ACCA predicates. We therefore vacate the district court’s judgment and
remand the case for resentencing.
I.
In 2011, Goins pleaded guilty to possession of a firearm by a felon, in violation of
18 U.S.C. § 922(g)(1) (count one conviction), and possession of a stolen firearm, in
violation of 18 U.S.C. § 922(j) (count two conviction). Before sentencing, a United States
Probation Officer prepared a PSR stating that Goins’ record qualified him to be sentenced
as an armed career criminal. The ACCA subjects a defendant to an enhanced sentence if
3
he has at least three prior convictions for “a violent felony or a serious drug offense, or
both, committed on occasions different from one another.” 18 U.S.C. § 924(e)(1).
In the PSR, the probation officer designated four North Carolina convictions as
ACCA predicates. The convictions were for (1) possession of cocaine, (2) possession of
stolen goods or property, (3) assault with a deadly weapon, and (4) assault with a deadly
weapon with intent to kill or inflict serious injury. The PSR also included eight additional
criminal convictions that were not identified as ACCA predicate offenses. Neither party
objected to any aspect of the PSR, which the district court fully adopted.
As a result of this ACCA enhancement, Goins was subject to a 15-year mandatory
minimum sentence for the count one conviction under Section 922(g)(1). 18 U.S.C.
§ 924(e)(1). Without the ACCA enhancement, he would have been subject to a 10-year
maximum sentence on that count. 18 U.S.C. § 924(a)(2). The district court sentenced
Goins as an armed career criminal on the count one conviction to a term of 240 months’
imprisonment, and to a concurrent term of 120 months’ imprisonment on the count two
conviction. On direct appeal, we affirmed the sentence imposed by the district court.
In 2016, Goins filed the present motion to vacate or correct his sentence under 28
U.S.C. § 2255. He contended that he no longer qualified as an armed career criminal
because certain convictions designated in the PSR had been invalidated as ACCA
predicates under the Supreme Court’s decision in Johnson v. United States, 576 U.S. 591(2015) (holding that the residual clause of the ACCA is unconstitutionally vague).
The district court found that there was a “typographical error” in the PSR’s
designation of ACCA predicates. The court opined that the probation officer intended, but
4
failed, to designate as ACCA predicates the following prior convictions: (1) breaking and
entering, under N.C. Gen. Stat. § 14-54; (2) assault with a deadly weapon inflicting serious
injury, under N.C. Gen. Stat. § 14-32(b); (3) assault with a deadly weapon with intent to
kill or inflict serious injury, under N.C. Gen. Stat. § 14-32(a); and (4) assault with a deadly
weapon with intent to kill inflicting serious injury, under N.C. Gen. Stat. § 14-32(a).
Concluding that three of these undesignated convictions qualified as ACCA predicate
offenses, the court denied Goins’ Section 2255 motion. 1
II.
On appeal, Goins asserts that the district court erred in accepting as ACCA
predicates the convictions that were not designated for that purpose in the PSR. He argues
that this action by the district court plainly violated the rule that we established in United
States v. Hodge, 902 F.3d 420 (4th Cir. 2018). 2
In the Section 2255 proceedings in the district court, Goins did not challenge the
court’s use of the undesignated convictions in upholding the ACCA enhancement.
1
The district court determined that assault with a deadly weapon inflicting serious
injury, under N.C. Gen. Stat. § 14-32(b), did not qualify as a “violent felony” under
Johnson because the crime lacked a specific intent element. But the court found that the
other three convictions listed above qualified as ACCA predicate offenses.
2
Goins also contends that the district court erred in determining that his conviction
in North Carolina for breaking and entering constitutes a violent felony under the ACCA.
However, because we conclude that the district court plainly erred under Hodge, we do not
address whether any of Goins’ convictions properly qualify as ACCA predicates.
5
Therefore, because the issue was not raised in the district court, we review the district
court’s judgment for plain error. United States v. Green, 973 F.3d 208, 210 (4th Cir. 2020).
At the time that the district court considered Goins’ Section 2255 motion, we had
not yet issued our decision in Hodge, 922 F.3d 420. Although Hodge was decided after
the district court denied Goins’ motion, the court’s decision is nonetheless subject to review
for plain error on appeal. See Henderson v. United States, 568 U.S. 266, 269 (2013)
(holding that as long as the error is plain at the time of appeal, the appellate court may
consider the error); United States v. Carthorne, 878 F.3d 458, 464 (4th Cir. 2017) (“[T]he
determination whether an error is plain is made at the time of review by an appellate court,
not at the time that the error is committed.”).
To demonstrate plain error, Goins must show that: “(1) an error occurred; (2) the
error was plain; and (3) the error affected his substantial rights.” United States v. Lockhart,
947 F.3d 187, 191 (4th Cir. 2020) (en banc). We will only correct the error if “the error
seriously affects the fairness, integrity or public reputation of judicial proceedings.” United
States v. Olano, 507 U.S. 725, 732 (1993) (citation, quotation marks, and brackets omitted).
In Hodge, we held that when the government failed to provide a defendant notice of
its intent to use a prior conviction as an ACCA predicate offense, the government could
not rely on that prior conviction in a collateral proceeding to preserve application of the
ACCA enhancement. 902 F.3d at 428, 430. As we explained in Hodge, “[when] the PSR
specifically designates certain convictions as ACCA predicates and declines to designate
others, [the PSR] notifies the defendant that only the designated predicates will be used to
support the ACCA enhancement.” Id. at 427. We further held that the mere inclusion of
6
a prior conviction in the criminal history section of the PSR was insufficient to provide the
required notice to the defendant that the government intended to rely on that conviction as
an ACCA predicate. Id. at 424, 427-28. Accordingly, in Hodge, we reversed the district
court’s decision denying the Section 2255 motion and remanded the case for resentencing.
Id. at 432.
Here, as noted above, Goins’ PSR designated only four prior felony convictions as
ACCA predicates: (1) possession of cocaine, (2) possession of stolen goods or property,
(3) assault with a deadly weapon, and (4) assault with a deadly weapon with intent to kill
or inflict serious injury. While the PSR referenced several other criminal convictions, the
probation officer did not designate any of those other convictions as ACCA predicates.
Also, the government did not object at the time of Goins’ sentencing to the designation of
ACCA predicates.
As the district court recognized, and the parties agree on appeal, three of the four
convictions previously designated as ACCA predicates do not support the ACCA
enhancement. In place of those three invalid ACCA predicates, the district court
substituted other convictions not designated as ACCA predicates in upholding Goins’
sentence as an armed career criminal. This substitution of offenses constituted plain error
under Hodge, 902 F.3d at 430.
This Hodge error is not cured by the district court’s conclusion that the PSR included
a typographical error resulting in the improper designation of certain convictions as ACCA
predicates. Regardless whether the PSR contained such an error, the fact remains that
Goins was not given notice that any of those other convictions would be counted for
7
purposes of the ACCA enhancement. As discussed above, “[d]efendants have ‘a right to
adequate notice of the government’s plan to seek [an ACCA] enhancement and of the
convictions that may support that enhancement.’” Id. at 427 (alternation in original)
(quoting United States v. O’Neal, 180 F.3d 115, 125-26 (4th Cir. 1999)). As a result, Goins
was deprived of the ability to challenge the imposition of an enhanced sentence based on
those purported ACCA predicates. Id. at 427-28.
For the same reasons, the Hodge error affected Goins’ substantial rights. Most
importantly, the lack of notice prevented him from preparing to contest the validity of the
non-designated convictions or the applicability of the ACCA enhancement. 3 Id. Lacking
notice of which convictions would be used to support the ACCA enhancement, Goins could
not properly prepare for sentencing. Id. Accordingly, we hold that the error affected
Goins’ substantial rights.
Lastly, the error “seriously affect[ed] the fairness, integrity or public reputation of
[the] judicial proceeding[].” Olano, 507 U.S. at 736. The failure to provide Goins notice
deprived him of the opportunity to adequately prepare for his sentencing and to defend
against imposition of the ACCA enhancement. Because the government bore the burden
3
In determining whether the error impacted Goins’ substantial rights, we do not
consider what sentence Goins might ultimately receive on remand. Instead, we look to
whether his substantial rights were affected at the time the district court considered the
motion. See United States v. Hughes, 401 F.3d 540, 551 (4th Cir. 2005) (“[T]he proper
focus is on what actually happened as a result of the error, not what might happen in a
subsequent proceeding on remand.”). Accordingly, we may conclude that Goins’
substantial rights were affected by the Hodge error, even while acknowledging that
convictions not designated as ACCA predicates in Goins’ original PSR may be so
designated in a new PSR prepared in advance of the resentencing hearing. See United
States v. Rumley, 952 F.3d 528, 544–47 (4th Cir. 2020).
8
at Goins’ sentencing to establish the basis for the ACCA enhancement, we will not permit
the use of different convictions on collateral review to justify the ACCA enhancement after
the evidentiary burden has shifted to the defendant. Hodge, 902 F.3d at 430. We therefore
exercise our discretion to notice the error and to grant Goins relief.
III.
For these reasons, we vacate the district court’s judgment denying Goins’ Section
2255 motion and remand the case to the district court for resentencing.
VACATED AND REMANDED
9