US v. Brian Hick, No. 10-4767 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4767 UNITED STATES OF AMERICA, Plaintiff Appellee, v. BRIAN C. HICKS, Defendant Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:09-cr-00071-FDW-1) Submitted: June 21, 2011 Decided: July 14, 2011 Before NIEMEYER, DUNCAN, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Claire J. Rauscher, Executive Director, Ann L. Hester, Steven G. Slawinski, Assistant Federal Public Defenders, Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Richard Lee Edwards, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Brian C. Hicks appeals his conviction, following a jury trial, of destruction of his computer hard drive with the intent to impede, obstruct, or influence a federal investigation, in violation of 18 U.S.C. § 1519 (2006). was under investigation for possession of child Hicks pornography. After learning that federal agents wanted to speak with him, Hicks destroyed his hard drive. On appeal, Hicks argues that (1) his conviction violated due process and his Fourth Amendment right against unreasonable seizures; and (2) the district court erred at sentencing in applying the child pornography crossreference and denying Hicks a two-level reduction for acceptance of responsibility. Finding no reversible error, we affirm. Generally, we review de novo a district court s ruling on a constitutional challenge to a statute. United States v. Buculei, 262 F.3d 322, 327 (4th Cir. 2001). When a defendant fails to timely raise a constitutional challenge in the district court, however, he forfeits the constitutional right, and we review the issue for plain error. U.S. 725, 732-33 (1993). United States v. Olano, 507 Because Hicks only asserted his Fifth Amendment challenge in an untimely pretrial motion and failed to raise his Fourth Amendment challenge at all, his claims are reviewed to determine whether (1) there was error; (2) that was plain; and (3) that affected substantial rights. 2 Id. at 732-35. Hicks U.S.C. § 1519 first claims that violated his his Fifth prosecution Amendment under rights. 18 Hicks appears to argue that he had a property right to destroy his computer s hard drive, and that he was deprived of that right when the Government prosecuted him without due process. To establish a violation of procedural due process, Hicks must show that (1) he had a property interest, (2) of which the Government deprived him, (3) without due process of law. Sunrise Corp. of Myrtle Beach v. City of Myrtle Beach, 420 F.3d 322, 328 (4th Cir. 2005). Procedural due process requires, at a minimum, fair notice and an opportunity to be heard. 424 U.S. 319, 333 (1976). individual has received Matthews v. Eldridge, In order to determine whether an fair relevant facts of each case. notice, we must examine the United States v. Hoechst Celanese Corp., 128 F.3d 216, 224 (4th Cir. 1997). Beyond the minimum requirements to of notice and an opportunity be heard, due process is flexible and calls for such procedural protections as the particular situation demands. Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Regardless of whether Hicks had a property interest in the destruction of his hard drive, we hold that he received sufficient process prior to any deprivation. The statute provided adequate notice that destroying the images on his hard 3 drive was prohibited in light of the federal investigation. 1 Further, Hicks received an indictment and summons and was given the opportunity to be heard at trial. Hicks does not argue that his trial did not comport with the requirements of due process. 2 1 Hicks also argues that Congress did not intend for § 1519 to extend to cases like his because it was enacted under the Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745 (codified in scattered sections of 15 U.S.C. and 18 U.S.C.) (2002). Because we hold that the statute is plain and unambiguous, we decline to delve into the legislative history. See U.S. v. Hunt, 526 F.3d 639, 743-44 (11th Cir. 2008); see also Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 450 (2002). Furthermore, because there are not competing plausible interpretations of the text, we need not employ the doctrine of constitutional avoidance as Hicks requests. See Clark v. Martinez, 543 U.S. 371, 381 (2005). 2 Hicks attempts to tie into his due process claim a claim that § 1519 interferes with the affirmative defense to child pornography found in 18 U.S.C. § 2252(c) (2006), which applies if the defendant (1) possessed less than three matters containing any visual depiction proscribed by [the child pornography statute]; (2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof (A) took reasonable steps to destroy each such visual depiction; or (B) reported the matter to a law enforcement agency and afforded that agency access to such visual depiction. Because Hicks was not charged with possession of child pornography and, therefore, was ineligible to assert § 2252(c) as a defense, he suffered no injury in fact from any conflict between the two provisions. Accordingly, he lacks standing to challenge § 1519 on this ground. See Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 629 F.3d 387, 396 (4th Cir. 2011). 4 Hicks contends that his conviction also violates the Fourth Amendment s Essentially, Hicks prohibition argues that on his unreasonable computer was seizures. effectively seized because he was not at liberty to destroy it, and, because the agents did not acquire a warrant, they violated his Fourth Amendment rights. The unreasonable Fourth searches papers and effects. (1992). some Amendment and seizures of individuals their persons, from houses, Soldal v. Cook County, 506 U.S. 56, 62 The seizure of personal property occurs when there is meaningful interference interests in that property. F.3d protects 194, 204 (4th Cir. with an interference possessory Altman v. City of High Point, 330 2003) (quoting Jacobsen, 466 U.S. 109, 113 (1984)). meaningful individual s with United States v. We hold that there was no Hicks s possessory interests because he did not have a property right in the images of child pornography. 2003). See Helton v. Hunt, 330 F.3d 242, 247 (4th Cir. Therefore, the district court did not err in convicting Hicks under § 1519. Because we hold that the district court did not err, we need not decide whether any error was plain and affected Hicks s substantial rights. Hicks district court. also challenges the sentence imposed by the We review the district court s factual findings at sentencing for clear error and the legal interpretations of 5 the Guidelines de novo. United States v. Carter, 601 F.3d 252, 254 (4th Cir. 2010); see also United States v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007). Hicks first claims that the district court erred during sentencing by applying the child pornography Guidelines provision pursuant §§ 2J1.2(c), 2X3.1 to U.S. (2009), Sentencing because (1) Guidelines he was ( USSG ) charged as a principal, not an accessory after the fact; and (2) there was insufficient First, we evidence hold that discretion in Accessory After that the referring the he possessed district to Fact USSG court child did § 2X3.1. title pornography. not abuse Regardless assigned to its of the § 2X3.1, the obstruction of justice Guidelines provision clearly states If the offense prosecution of involved a obstructing criminal offense, the apply investigation § 2X3.1 or (Accessory After the Fact) in respect to that criminal offense, if the resulting offense level is greater than determined above. USSG § 2J1.2(c). Nor did the district court commit applying the child pornography cross-reference. clear error in In order for the district court to apply the cross-reference, it was required to find by a preponderance of the evidence, see United States v. Crump, 120 F.3d 462, 468 (4th Cir. 1997), that Hicks possessed images of prepubescent minors or those under the age of twelve, 6 that a computer was used in the transmission or receipt of the images, and that he possessed at least 150 but fewer than 300 videos. See USSG § 2G2.2(2), (6), (7)(B). The district court heard all testimony at sentencing establishing of the above elements, including testimony that Hicks admitted he had child pornography on his computer, and Hicks presented no evidence to the contrary. Therefore, we hold that there was sufficient evidence to support the district court s cross-referencing of the child pornography Guidelines. Hicks also claims that the district court erred by declining to award a sentencing adjustment for acceptance of responsibility. Pursuant to USSG § 3E1.1, a reduction for acceptance of responsibility is appropriate [i]f the defendant clearly demonstrates acceptance of responsibility for the offense ; it is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt. . . . trial alone does USSG § 3E1.1 cmt. n.2. not preclude a A conviction by defendant from such an adjustment; in rare situations, such as when a defendant goes to trial to assert and preserve issues that do not relate to factual guilt, the adjustment may be appropriate. Id. Here, Hicks proceeded to trial because he contested his factual guilt. Specifically, Hicks argued that he did not 7 intend to obstruct, investigation. impede, or influence the Thus, Hicks put the Government to its burden of proof at trial on the essential elements of guilt. we conclude federal that the district court did not Accordingly, clearly err in We therefore affirm the district court s judgment. We denying an adjustment for acceptance of responsibility. 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 8
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