US v. Antoine Hill, No. 14-4277 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4277 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTOINE HILL, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:07-cr-00407-REP-1) Submitted: October 29, 2014 Before MOTZ and Circuit Judge. FLOYD, Circuit Decided: Judges, and November 20, 2014 HAMILTON, Senior Affirmed in part; dismissed in part by unpublished per curiam opinion. Charles A. Gavin, CAWTHORN, DESKEVICH & GAVIN, P.C., Richmond, Virginia, for Appellant. Dana J. Boente, United States Attorney, Michael A. Jagels, Special Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Antoine Hill appeals the district court’s judgment sentencing him to 152 months in prison after ordering in his 28 U.S.C. § 2255 (2012) proceeding that he be resentenced. 1 counsel, Hill unreasonable asserts because he that his argues it 152-month was clear Through sentence error for is the district court to convert cash found in his apartment to drug weight, thereby increasing his base offense level. Hill has also filed a motion for leave to file a pro se supplemental brief, along with his proposed pro se supplemental brief, in which he restates counsel’s assignment additional assignments of error. 2 certificate claims. of appealability as of error, as well as Hill has also moved for a to his unsuccessful habeas We dismiss the appeal in part, and we affirm in part. 1 Hill was originally sentenced to 300 months in prison. Although the district court dismissed the majority of Hill’s habeas claims, after finding that defense counsel provided ineffective assistance during Hill’s sentencing proceedings, the district court ordered that Hill be resentenced. 2 Because Hill is represented in the criminal matter by counsel who has filed a merits brief, as opposed to a brief pursuant to Anders v. California, 386 U.S. 738 (1967), he is not entitled to file a pro se supplemental brief in the criminal portion of this appeal and we deny his motion. See United States v. Penniegraft, 641 F.3d 566, 569 n.1 (4th Cir. 2011) (denying motion to file pro se supplemental brief because the defendant was represented by counsel). 2 When court, we a have hybrid appeal explained such that as “[i]f Hill’s the is before petitioner seeks the to appeal the order by raising arguments relating to the district court’s decision whether to grant relief on his § 2255 petition, he is appealing ‘the final order in a proceeding under § 2255’ and therefore must obtain a [certificate of appealability] under [28 U.S.C.] § 2253 [(2012)].” 652, 666 (4th Cir. United States v. Hadden, 475 F.3d 2007). “If, on the other hand, the petitioner seeks to appeal matters relating to the propriety of the relief granted, he is appealing a new criminal sentence and therefore need appealability] not comply with requirement.” Id. § 2253’s (emphasis [certificate omitted). of Thus, although we have jurisdiction over Hill’s challenge to his new sentence, as to any arguments Hill raises pertaining to the district court’s order denying relief on his habeas claims, Hill must establish his entitlement to a certificate of appealability before we may review the merits of the district court’s dismissal. First, we discern no error in the district court’s imposition of the 152-month sentence at Hill’s resentencing. This court reviews a sentence for abuse of discretion. United States v. Cobler, 748 F.3d 570, 581 (4th Cir.), cert. denied, ___ S. Ct. ___, 2014 WL 3556894 (U.S. July 10, 2014) (No. 145307). “The first step in our review of a sentence mandates 3 that we ensure that the district court committed no significant procedural error, such as improperly calculating the Guidelines range or selecting a sentence based on clearly erroneous facts.” United States v. Llamas, 599 F.3d 381, 387 (4th (internal quotation marks and alterations omitted). Cir. 2010) Thus, to avoid procedural error, a sentencing court must first correctly calculate the applicable Guidelines range. See United States v. Hernandez, 603 F.3d 267, 270 (4th Cir. 2010). “In assessing whether a sentencing court has properly applied the Guidelines, we review factual findings for clear error and legal conclusions de novo.” Llamas, 599 F.3d at 387. We reject Hill’s assertion that the cash bundle found by law enforcement in a bedroom of Hill’s residence should not have been converted to increase the drug weight with which Hill was attributed because it was located in an area away from the drugs discovered and because Hill insisted that the money was proceeds received. from a personal injury settlement he previously A district court may consider the drug equivalent of cash seized as relevant conduct for purposes of calculating the drug weight attributable to a defendant. Hicks, 948 F.2d 877, 882 (4th Cir. 1991). United States v. “The calculation of the amount of drugs which results in the establishment of the base offense level is a factual determination subject to review only for clear error.” Id. at 881. 4 This court will “find clear error only if, on the entire evidence, [it is] left with the definite and firm conviction that a mistake has been committed.” United States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010) (internal quotation marks and citation omitted). We discern no clear error in the district court’s decision to include in the drug weight amount with which Hill was attributed the value of the cash bundle found in Hill’s residence. Accordingly, we affirm Hill’s 152-month sentence. To the extent Hill seeks to appeal the district court’s decision to dismiss his habeas claims, an appeal may not be taken to proceeding this court unless a from circuit of final justice order a 2255 a A will not judge § issues appealability or in 28 U.S.C. § 2253(c)(1) (2012). certificate of appealability. certificate the issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). on the merits, demonstrating district debatable that court’s or a When the district court denies relief prisoner satisfies reasonable assessment wrong. Slack jurists this would of the v. McDaniel, standard find U.S. that the claims constitutional 529 by is 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the 5 motion states a debatable claim of the denial of a constitutional right. at 484-85. Slack, 529 U.S. We have reviewed the record and conclude that Hill has failed to make a substantial showing of the denial of a constitutional right. Accordingly, we deny a certificate of appealability and dismiss the habeas portion of Hill’s appeal. Based on the foregoing, we deny Hill’s motion to file a pro se supplemental brief, deny a certificate of appealability and dismiss the appeal in part, and we affirm in part. dispense with contentions are oral argument adequately because presented in the the facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED IN PART; DISMISSED IN PART 6