UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4875

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) 

Argued: December 2, 2009 Decided: February 2, 2010 

Before NIEMEYER and AGEE, Circuit Judges, and John Preston 

BAILEY, Chief United States District Judge for the Northern 

District of West Virginia, sitting by designation. 

Vacated and remanded for resentencing by unpublished opinion. 

Judge Bailey wrote the opinion, in which Judge Niemeyer and 

Judge Agee joined. 

ARGUED: Michael Williams Chesser, Aiken, South Carolina, for 

Appellant. Rose Mary Sheppard Parham, OFFICE OF THE UNITED 

STATES ATTORNEY, Florence, South Carolina, for Appellee. ON 

BRIEF: W. Walter Wilkins, United States Attorney, Columbia, 

South Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. 
BAILEY, Chief District Judge: 

 The issue presented by this appeal is whether the 

defendant’s 1989 South Carolina conviction for trafficking in 

cocaine may be used in determining that the defendant is an 

Armed Career Criminal for purposes of 18 U.S.C. § 924(e). We 

determine that the conviction may not be used to enhance the 

defendant’s sentence and, therefore, remand this case for 

resentencing. 

I. 

 On March 17, 2006, Kenneth Glenn Hinson (Hinson) was 

arrested in Darlington County, South Carolina, on outstanding 

state arrest warrants. At the time of his arrest, officers 

found a Hi-Point 9 millimeter semi-automatic pistol tucked into 

his waistband at the small of his back. Hinson was subsequently 

indicted on one count of being a felon in possession of a 

firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and 

924(e). On November 8, 2007, a federal jury convicted Hinson of 

felon in possession of a firearm and ammunition after a one day 

trial. 

 Prior to sentencing, the United States Probation Office 

determined that Hinson was an Armed Career Criminal for purposes 

of § 924(e). As an Armed Career Criminal, the possible sentence 

was increased from a maximum of ten (10) years, to a minimum of 

2 
fifteen (15) years and a maximum of life, with a guideline range 

of 262 to 327 months. The three convictions found by the 

sentencing court to be qualifying predicate offenses are as 

follows: (1) 1983 Aggravated Assault and Battery; (2) 1989 

Trafficking in Cocaine; and (3) 1991 Second Degree Criminal 

Sexual Conduct. 

 Hinson admits that two of the three convictions qualify as 

predicate offenses under 18 U.S.C. § 924(e) (Armed Career 

Criminal Act or ACCA). The predicate conviction to which Hinson 

objects, and which forms the basis of this appeal, is his 1989 

trafficking conviction. Hinson objected to the inclusion of the 

conviction as a predicate offense before the district court, but 

the Court overruled the objection, finding that United States v. 

Brandon, 247 F.3d 186 (4th Cir. 2001) did not apply to Hinson’s 

South Carolina trafficking conviction; and, in the alternative, 

the search warrant return from Hinson’s trafficking case was a 

comparable judicial record that could be considered under 

Shepard v. United States, 544 U.S. 13 (2005).1 The sentencing 

 

(Continued) 

 1 The search warrant return included the following: nine 

five-dollar bills, forty-nine one-hundred dollar bills, eight 

ten-dollar bills, fifty-eight twenty-dollar bills, fifty-two 

one-dollar bills, three small plastic bags containing a large 

quantity of white powder, a brown medicine bottle containing 

four plastic bags with white powder, one pack of rolling papers, 

one cellophane bag containing a green leafy substance, one 

Uniden radar detector, one wallet containing various 

identification cards, one razor blade, one H & R 22 caliber 

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court overruled the remainder of defendant’s objections and 

sentenced defendant to 300 months imprisonment, five (5) years 

of supervised release, and a $100.00 special assessment. 

 

II. 

 This Court reviews de novo whether a previous conviction 

qualifies as a predicate offense under the Armed Career Criminal 

Act. United States v. Harcum, 587 F.3d 219, 222 (4th Cir. 

2009). “The Government bears the burden of proving an ACCA 

predicate offense by a preponderance of the evidence.” Id. 

 “The ACCA mandates a minimum fifteen-year prison sentence 

for a person who is convicted of unlawful possession of a 

firearm, and who ‘has three previous 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).” 

Id. The ACCA defines a “serious drug offense” as “an offense 

under State law, involving manufacturing, distributing, or 

possessing with intent to manufacture or distribute, a 

controlled substance ... for which a maximum term of 

 

pistol model 922, North American .22 caliber ammunition, 22 

bullets, one pack yellow twist ties, two boxes of plastic bags, 

two boxes of trash bags, strips of plastic bags and numerous 

white twist ties. J.A., pp. 185-186. 

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imprisonment of ten years or more is prescribed by law.” 18 

U.S.C.A. § 924(e)(2)(A)(ii). 

 “In assessing whether an offense constitutes an ACCA 

predicate offense, two types of analyses are potentially 

applicable - known as the ‘categorical’ approach and the 

‘modified categorical’ approach.” Id. 

 We must first utilize the categorical approach. Under that 

approach, we analyze the offense “generically - that is, by 

relying solely on its essential elements, rather than on the 

particular underlying facts.” Id.; United States v. White, 571 

F.3d 365, 368 (4th Cir. 2009) (citing James v. United States, 

550 U.S. 192, 208 (2007)). Under the categorical approach, the 

sentencing court may look only to the fact of conviction and the 

statutory definition of the offense of conviction to determine 

whether the offense is a “serious drug offense” or a “violent 

felony.” Id., citing Shepard v. United States, 544 U.S. 13, 17 

(2005) and Taylor v. United States, 495 U.S. 575, 600-02 (1990). 

 “Although the Supreme Court has expressed its preference 

for the categorical approach, that approach does not always 

reveal the nature of the asserted predicate offense encountered 

by a sentencing court. Thus, pursuant to the Court's decisions 

in Shepard and Taylor, when the fact of conviction and the 

statutory definition of the offense are unduly vague or 

ambiguous, a sentencing court is entitled to turn to and apply 

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the alternative ‘modified categorical’ approach. See Shepard, 

544 U.S. at 20, 26; Taylor, 495 U.S. at 602. In its 1990 Taylor

decision, for example, the Supreme Court was unable, under the 

categorical approach, to determine whether Taylor's burglary 

offense qualified as a ‘violent felony’ under the ACCA, because 

the record did not reflect which specific state burglary statute 

was applicable, and not all of the state's burglary statutes 

involved criminal conduct that would qualify as an ACCA violent 

felony. See 495 U.S. at 578 n. 1, 602. Thus, the Court 

recognized that a sentencing court is entitled, in the proper 

circumstances, to go beyond the scope of the categorical 

approach and assess the underlying charging documents or jury 

instructions to ascertain whether the offense qualifies as an 

ACCA predicate offense. See id. at 602 (utilizing modified 

categorical approach for cases involving jury convictions); see 

also Shepard, 544 U.S. 13 (expanding modified categorical 

approach to situations involving plea agreements).” Harcum, 

supra at 223. 

 The statute under which Hinson was convicted in 1989 

provides that “[a]ny person who knowingly sells, manufactures, 

delivers or brings into this State, or who provides financial 

assistance or otherwise aids, abets or conspires to sell, 

manufacture or deliver or bring into this State, or who is 

knowingly in actual or constructive possession of . . . ten 

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grams or more of cocaine or any mixtures containing cocaine . . 

. is guilty of a felony known as trafficking in cocaine . . ..” 

S.C. Code § 44-53-370(e)(2). 

 This statute may be violated both by conduct that falls 

within the ACCA definition of “serious drug felony” and conduct 

that does not fall within the definition; thus, we turn to the 

indictment. United States v. Brandon, 247 F.3d 186 (4th Cir. 

2001). 

 The indictment underlying the 1989 conviction charges that 

“Kenneth Hinson did in Darlington County on or about the 18th 

day of November, 1988 , unlawfully and knowingly possess a 

quantity of cocaine, to wit: more than (10) grams, such 

substance being a controlled substance in violation of section 

44-53-370(E)(2) of the 1976 Code of Laws of South Carolina.” 

J.A. 180. 

 Based upon the foregoing, it would appear that the 1989 

conviction involved only possession, not possession with intent 

to distribute, and would not satisfy the requirements of a 

predicate sentence under the ACCA. See Brandon, supra at 189. 

 In Brandon, this Court went further to determine whether 

the prior conviction involved possession with intent to 

distribute, even if not a formal element of the crime under 

state law. The Brandon Court noted that “[i]n cases where 

enhancement under section 924(e) is hinged not on the elements 

7 
of the underlying crime but on whether the crime ‘involves’ 

particular conduct, courts follow the approach outlined in 

Taylor and ask whether the proscribed conduct is an inherent 

part or result of the generic crime of conviction, without 

regard to the facts surrounding the underlying conviction, or, 

stated somewhat differently, whether the abstract crime 

intrinsically involves the proscribed conduct.” 247 F.3d at 

191. 

 In Brandon, we held that intent to distribute is not 

inherent in the generic conduct of trafficking by possession 

where the amount of cocaine possessed was 28 grams. It follows, 

then, that intent to distribute is not inherent in the 

possession of 10 grams of cocaine. 

 The Government urges this Court to determine the character 

of the previous conviction by reference to the return of the 

search warrant.2 Specifically, the Government argues that 

“[b]ecause the search warrant is a judicial record, it is 

admissible under Shepard.” Response Brief at 16. Under the 

facts of this case, we disagree. 

“When, as here, the underlying statute prohibits both 

qualifying and non-qualifying offenses, the sentencing court may 

‘determin[e] the character of’ the prior offense by ‘examining 

 

 2 The Government concedes that no other documentation 

relating to the 1989 conviction can be located. 

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the statutory definition, charging document, written plea 

agreement, transcript of plea colloquy, and any explicit factual 

finding by the trial judge to which the defendant assented,’ 

United States v. Maroquin-Bran, 587 F.3d 214, 218 (4th Cir. 

2009)(quoting Shepard, 544 U.S. at 16), or “some comparable 

judicial record of this information.” Shepard, 544 U.S. at 26. 

 Consideration of the return of the search warrant is 

foreclosed by Shepard. In United States v. Harcum, 587 F.3d 

219, 224 (4th Cir. 2009), we held that “the Supreme Court has 

barred a sentencing court from considering unreliable evidence, 

which includes materials that are outside the record of the 

court of conviction. See Shepard, 544 U.S. at 20-23 (barring 

sentencing court from considering police report and complaint 

application, which extended ‘beyond conclusive records made or 

used in adjudicating guilt’). More specifically, in assessing 

whether the offense of conviction is a predicate offense under 

the ACCA, a sentencing court may, under the modified categorical 

approach, appropriately consider only ‘the statutory definition, 

charging document, written plea agreement, transcript of plea 

colloquy, and any explicit factual finding by the trial judge to 

which the defendant assented.’ Id. at 16.”3

 

 3 Subsequent to the Court's Shepard decision, this Court 

approved a sentencing court's utilization, under the modified 

categorical approach, of certain “external documents” - beyond 

(Continued) 

9 
10 

 A search warrant return is not a judicial record comparable 

to this narrow range of documents, which memorialize “the 

defendant’s own admissions or accepted findings of fact 

confirming the factual basis for a valid plea.” Id. at 25. 

Like the “warrant affidavit” considered by the Sixth Circuit in 

United States v. McGrattan, 504 F.3d 608 (6th Cir. 2007), a 

search warrant return is more “akin to the police report” deemed 

“inadmissible in Shepard” than it is to a “charging document,” 

as the search return is not filed “in furtherance of formal 

prosecution and thus does not determine whether an earlier plea 

or conviction was for a [particular] offense.” 504 F.3d at 616 

(quotations omitted). 

 Hinson’s sentence must be vacated and this case remanded to 

the District Court for resentencing consistent with this 

opinion. 

VACATED AND REMANDED FOR RESENTENCING

 

the scope of otherwise permissible items - because they were 

“explicitly incorporated” into permissible documents. See

United States v. Simms, 441 F.3d 313, 317 (4th Cir. 2006). 

There is no contention here that the return of search warrant 

was “explicitly incorporated” into a permissible document.