US v. Kenneth Hart - Opinion Affirmed

UNPUBLISHED UNITED STATES COURT OF AP PEALS FOR THE FOURTH CIRCUIT No. 24- 4391 UNITED ST ATES OF AMER ICA, Plaintiff – Appellee, v. KENNETH WAYNE HART, a/k/a Wayne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 C ourt for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8: 17 -cr-00 376 - PJM -1) S ubmitted: January 21, 2026 Decided: March 4, 2026 Before KING, THACKER, and RIC HARDSON, Circuit Judg e s. Affirmed by unpublish ed per curiam opinion. ON BRIEF: Charl es Burnham, BU RNHAM & GOROK HOV PLLC, Was hington, D.C., for Appellant. Kelly O. Hayes, Un ited States Attorney, David C. Bornstein, Assistant United States Attorney, OFF ICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding p recedent in this circuit.

2 PER CURIAM: At the conclusion of a jury trial in the District o f Maryland in March 2020, defendan t Kenneth Wayne Hart was convicted on five criminal charges: conspiracy to distribute and possess with intent to distribute controlled substances, in con travention 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 an d 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) (C ount Five). Hart was sentenced by the district court in October 2020 to a total prison ter m 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 Ju ly 2024, the district c ourt 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 cou rt improperly relied on his bare arrest record in resentencing h im. Additionally, Hart asserts that the new sentence is substantively unreasonable because the court should have granted an even larger downward variance. We have carefully consid ered Hart’s contentions and reject them for the reasons that fo llow. Starting with the contention that the district court improp erly relied on his bare arrest record, Hart acknowledges that this issue is s ubject to review for plain error o nly because

3 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 su bstantial rights; and (4) the error seriously affects the fairness, integrity, or public reputation of jud icial proceedings.” See United S tates 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 th at any error was not plain. An error qualifies as plain “if th e settled law of the Supreme Court o r this Circuit establishes that an error has occu rred,” see United States v. Maxwell, 285 F.3d 336, 342 (4th Cir. 2002) (citation modified), or if, in an “exceedingly rare” case, “our sister circu its have uniformly taken a position on an issue that has never been squarely presented to this Court,” see United States v. Cartho rne, 726 F.3d 503, 516 n.14 (4 th Cir. 2013) (citation modified). Significantly, however, n either the S upreme 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 hav e conclude d only that the Guidelines prohibit reliance on a bare arrest record in the different circumstance o f imposing an upward departure. S ee 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 dec ide whethe r [the Guidelines’] prohibition on considering a defendant’s prio r arrest record applies to a variance from the Guidelines.”). That leaves Hart to demonstrate plain erro r based on uniform decision s of our sister circuits. But Hart has not established the requisite un iformity, in that he invokes apposite decisions of just two other courts o f appeals. See, e.g., United States v. Zarco - Beiza, 2 4

4 F.4th 477, 48 2 (5th Cir. 2022) (broa dly recogni zing “ that it is error for a district court to rely on a bare arrest record at sentencing because it does no t provide sufficient indicia of reliability to satisfy due process” (citation modified)); United States v. Mitchell, 944 F.3d 116, 120 (3d Cir. 2019) (similarly o bserving 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 h earing transcript is ambiguous on this point. Consequently, Hart h as otherwise failed to demonstrate plain error. S ee 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 con tention that the district court shou ld have granted an even larger downward variance, he must rebu t the “presumption o f reasonableness” accorded “to a sentence within or below a properly calculated Guidelines range.” S ee 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 ag ainst the 18 U.S.C. § 3553(a) factors.” Id. at 357 - 58 (citation modified). Simply put, Hart has not made the necessary showing.

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 moo t Hart’s pending motion for permission to file a su pplemental brief respondi ng to a new argument raised by the government in a lett er to this Court und er Federal Rule of Appellate Proced ure 28(j). In deny ing Hart’s motion, we emphasize that it is moot because we do not rely herein on th e government’s new argument.