United States of America v. Dustin Wade Hinckle

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4249
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DUSTIN WADE HINCKLE,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh, Chief
District Judge. (3:15-cr-00027-GMG-RWT-1)
Submitted: October 31, 2016 Decided: December 21, 2016
Before WILKINSON, KING, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Nicholas J. Compton, Assistant Federal Public Defender,
Martinsburg, West Virginia, for Appellant. William J.
Ihlenfeld, II, United States Attorney, Paul T. Camilletti,
Assistant United States Attorney, Martinsburg, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Dustin Wade Hinckle appeals his conviction and 120-month
sentence imposed after a jury found him guilty of being a felon
in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2) (2012), and for possessing a stolen
firearm, in violation of 18 U.S.C. §§ 922(j), 924(a)(2) (2012).
On appeal, Hinckle raises four challenges.
First, Hinckle argues that the district court erred when it
denied his Fed. R. Crim. P. 29 motion for judgment of acquittal.
We review de novo the denial of a Rule 29 motion. United States
v. Jaensch, 665 F.3d 83, 93 (4th Cir. 2011). The jury verdict
must be sustained if “there is substantial evidence in the
record, when viewed in the light most favorable to the
government, to support the conviction.” Id. (internal quotation
marks omitted). “Substantial evidence is evidence that a
reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.” Id. (brackets and internal quotation marks
omitted).
Hinckle challenges the sufficiency of the evidence that he
possessed the firearms, a requirement under both §§ 922(g)(1)
and 922(j). The Government, however, submitted sufficient proof
that Hinckle constructively possessed the firearms. See United
States v. Scott, 424 F.3d 431, 435-36 (4th Cir. 2005).

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Second, Hinckle argues that the district court erred in
qualifying a law enforcement agent as an expert on the
interstate nexus of the firearms. We conclude that the district
court did not abuse its discretion in qualifying the agent as an
expert. See United States v. Wilson, 484 F.3d 267, 273 (4th
Cir. 2007) (setting out standard of review). This court has
permitted law enforcement agents to testify as experts to
establish the interstate nexus requirement. See, e.g., United
States v. Williams, 445 F.3d 724, 740 (4th Cir. 2006); United
States v. Simmons, 773 F.2d 1455, 1457-58 (4th Cir. 1985). We
perceive no error in the district court’s ruling in this case.
Third, Hinckle challenges the district court’s denial of
one of his objections to his presentence report.∗ On appeal, we
afford considerable deference to a district court’s
determinations about the reliability of information in a
presentence report, and “will not disturb [those determinations]
unless we are left with the definite and firm conviction that a
mistake has been committed.” United States v. McDowell, 745
∗ Hinckle referred to two objections in his brief, but
presented no argument to support one of them. Thus, we confine
our analysis to the objection fully argued in the brief. See
Fed. R. App. P. 28(a)(8)(A); Eriline Co. S.A. v. Johnson, 440
F.3d 648, 653 n.7 (4th Cir. 2006) (observing that single
conclusory sentence in argument section was insufficient to
raise the issue on appeal).

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F.3d 115, 120 (4th Cir. 2014) (internal quotation marks and
citations omitted).
In particular, Hinckle argues that the district court erred
by adopting the presentence report’s award of one criminal
history point for a diversionary disposition. “A diversionary
disposition resulting from a finding or admission of guilt, or a
plea of nolo contendere, in a judicial proceeding” counts as a
sentence eligible for one criminal history point. U.S.
Sentencing Guidelines Manual § 4A1.2(f) (2015). Hinckle
contends that USSG § 4A1.2(f) does not apply to his diversionary
disposition because the disposition sheet does not indicate that
Hinckle entered a no contest plea nor does it contain a finding
or admission of guilt.
The record, however, does not leave us with a definite and
firm conviction that a mistake has been made. The district
court judge recognized that Hinckle signed a no contest plea and
that Hinckle’s plea would be subject to W. Va. Code § 60A-4-407
(2006), which requires an admission or finding of guilt. See
United States v. Martinez-Melgar, 591 F.3d 733, 738 (4th Cir.
2010).
Finally, Hinckle contests the reasonableness of his
sentence. We review a sentence for reasonableness, applying “a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 51 (2007). This review considers both the

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procedural and substantive reasonableness of the sentence. Id.
In assessing procedural reasonableness, we consider factors such
as whether the district court properly calculated the Sentencing
Guidelines range, considered the 18 U.S.C. § 3553(a) (2012)
factors, and sufficiently explained the sentence imposed. Id.
If no procedural errors exist, we consider the substantive
reasonableness of a sentence, evaluating “the totality of the
circumstances.” Id. We presume the reasonableness of a
sentence within the properly calculated Guidelines range.
United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).
This “presumption can only be rebutted by showing that the
sentence is unreasonable when measured against the 18 U.S.C. §
3553(a) factors.” Id. Having found no procedural error, we
conclude that Hinckle also failed to rebut the presumption of
reasonableness afforded his within-Guidelines sentence.
Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED

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