UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4713

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KENNETH GLENN HINSON,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Florence. Terry L. Wooten, District Judge. 

(4:07-cr-00485-TLW-1)

Submitted: July 27, 2011 Decided: August 4, 2011

Before NIEMEYER, AGEE, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael Chesser, Aiken, South Carolina, for Appellant. 

William N. Nettles, United States Attorney, Robert F. Daley, 

Jr., Assistant United States Attorney, Columbia, South Carolina, 

for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Kenneth Glenn Hinson was convicted of unlawful 

possession of a firearm by a convicted felon and sentenced to a 

term of 115 months’ imprisonment.*

A sentence is reviewed for reasonableness under an 

abuse of discretion standard. Gall v. United States, 552 U.S. 

38, 51 (2007). This review requires consideration of both the 

procedural and substantive reasonableness of a sentence. Id.; 

see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). 

The court must first ensure that the district court did not 

commit any “significant procedural error,” such as failing to 

properly calculate the applicable Guidelines range, failing to 

consider the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006) 

 Hinson appeals his sentence, 

arguing that the court erred in finding that he possessed the 

firearm in connection with another felony, U.S. Sentencing 

Guidelines Manual § 2K2.1(b)(6) (2009), and abused its 

discretion in departing upward under USSG § 4A1.3, p.s. and 

varying upward pursuant to 18 U.S.C. § 3553(a) (2006). We 

affirm.

 * The district court initially sentenced Hinson as an armed 

career criminal to 300 months imprisonment. 18 U.S.C.A.

§ 924(e) (West 2000 & Supp. 2011). In his first appeal, we held 

that he lacked the necessary predicate convictions for an armed 

career criminal sentence and remanded the case for resentencing. 

United States v. Hinson, 363 F. App’x 998 (4th Cir. 2010).
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factors, or failing to explain the sentence adequately. Gall, 

552 U.S. at 51. If the sentence is free of significant 

procedural error, the appellate court reviews the substantive 

reasonableness of the sentence. Lynn, 592 F.3d at 575. 

Section 2K2.1(b)(6) provides for a four-level 

enhancement “[i]f the defendant used or possessed any firearm or 

ammunition in connection with another felony offense.” USSG 

§ 2K2.1(b)(6). “[T]he purpose of Section 2K2.1(b)(6) [is] to 

punish more severely a defendant who commits a separate felony 

offense that is rendered more dangerous by the presence of a 

firearm.” United States v. Jenkins, 566 F.3d 160, 164 (4th Cir. 

2009) (internal quotation marks omitted). 

“‘Another felony offense,’ for purposes of subsection 

(b)(6), means any federal, state, or local offense[] . . . 

punishable by imprisonment for a term exceeding one year, 

regardless of whether a criminal charge was brought, or a 

conviction obtained.” USSG § 2K2.1 cmt. n.14(C). A firearm is 

used or possessed “in connection with” another felony offense if 

it “facilitated, or had the potential of facilitating,” the 

offense. Id. cmt. n.14(A); see Jenkins, 566 F.3d at 162-63. 

“[I]n the case of a drug trafficking offense in which a firearm 

is found in close proximity to drugs, . . . application of [the 

four-level enhancement] is warranted because the presence of the 

firearm has the potential of facilitating another felony offense 
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. . . .” USSG § 2K2.1 cmt. n.14(B); see Jenkins, 566 F.3d at 

163.

The district court determined that the enhancement was 

warranted because Hinson had testified under oath at his state 

trial on other charges that he was a drug dealer and that he 

fled his home because he thought law enforcement officers knew 

about four pounds of marijuana he had stored in his basement. 

In addition, the district court considered Hinson’s post-arrest 

statement to law enforcement officers that he always had a gun 

with him. Based on the uncontested evidence before the court, 

we conclude that the district court did not clearly err in 

finding that Hinson was selling marijuana and that the firearm 

he possessed had the potential to facilitate that activity. 

Therefore, the district court properly applied the four-level 

enhancement under USSG § 2K2.1(b)(6). 

Next, we review the district court’s departure by 

considering “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 v. Hernandez-Villanueva, 473 F.3d 118, 

123 (4th Cir. 2007). Under USSG § 4A1.3(a)(1), the district 

court may upwardly depart from the Guidelines sentence if the 

court determines that “the defendant’s criminal history category 

substantially under-represents the seriousness of the 
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defendant’s criminal history or the likelihood that the 

defendant will commit other crimes[.]” The court may consider 

prior sentences not used in computing the criminal history 

category. See USSG § 4A1.3(a)(2)(A).

The district court considered two sentences that were 

too old to be counted: one for aggravated assault and battery; 

and one for cocaine trafficking. Hinson points out that a prior 

sentence not counted in the defendant’s criminal history because 

it is too old, i.e., outside the applicable time period set out 

in § 4A1.2, may be the basis for a departure only if the old 

conviction involved similar or serious dissimilar conduct. See

USSG § 4A1.2 cmt. n.8. The district court specifically declined 

to find that the prior criminal conduct underlying the uncounted 

sentences was similar to Hinson’s § 922(g)(1) conviction, but 

found that the offenses were “very serious.” 

Hinson argues that the prior offenses, aggravated 

assault and battery and cocaine trafficking, were not 

sufficiently serious to warrant a departure because the 

aggravated assault occurred at least twenty years before the 

instant offense and the cocaine trafficking offense involved 

only possession of eleven grams of cocaine. However, the age of 

the assault and battery does not lessen its seriousness; the 

presentence report states that Hinson struck another man with a 

car jack. Moreover, Hinson appears to understate the 
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seriousness of his cocaine trafficking offense. The record in 

this appeal does not disclose the exact quantity of cocaine 

involved in Hinson’s cocaine trafficking offense but, from the 

available information, it appears that it was more than eleven 

grams. We conclude that the district court reasonably 

determined that both of Hinson’s uncounted sentences were for 

serious criminal conduct and that criminal history category II 

significantly under-represented his criminal history and his 

risk of recidivism. Thus, the decision to depart was 

reasonable. Moreover, in departing, the district court followed 

the incremental approach set out in § 4A1.3(a)(4)(A), and the 

extent of the departure was reasonable.

After departing upward, the district court announced 

that it would also vary upward by two levels. Hinson maintains 

that the variance was both procedurally and substantively 

unreasonable because, in his view, the court relied again on the 

uncounted sentences which were the basis for the departure to 

justify a further increase in his sentence. Hinson 

mischaracterizes the court’s reasons for the variance. The 

court noted Hinson’s propensity to commit new crimes after 

incarceration, and to commit violent crimes, first against an 

adult, then against a child. The court also reviewed the § 

3553(a) factors in light of the undisputed record and stated 

that an upward variance was necessary to reflect the seriousness 
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of the instant offense, promote respect for the law, provide 

adequate deterrence to criminal conduct, and protect the public 

from further crimes of the defendant. Alternatively, the court 

found that the testimony of the four witnesses who testified at 

sentencing that Hinson had sexually abused them when they were 

children had sufficient indicators of reliability to justify a 

two-level variance. 

Thus, the court’s first ground for a variance was not 

simply the fact of Hinson’s prior uncounted offenses, but his 

failure to be deterred by prior incarcerations and the nature of 

his offenses. The court’s second ground was credible evidence 

of a number of sexual crimes Hinson had committed, only one of 

which he had been convicted and punished for. We are satisfied 

that the court’s variance was reasonable on either ground and 

the resulting sentence was procedurally and substantively 

reasonable. 

We therefore affirm the sentence imposed by the 

district court. 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