United States v. Brian Hicks , 438 F. App'x 216 ( 2011 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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). Hicks
was under investigation for possession of child 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 cross-
reference 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. United States v. Olano, 507
U.S. 725, 732-33 (1993). 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. Id. at 732-35.
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Hicks first claims that his prosecution under 18
U.S.C. § 1519 violated his Fifth Amendment rights. 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. Matthews v. Eldridge,
424 U.S. 319, 333 (1976). In order to determine whether an
individual has received fair notice, we “must examine the
relevant facts of each case.” United States v. Hoechst Celanese
Corp., 128 F.3d 216, 224 (4th Cir. 1997). Beyond the minimum
requirements of notice and an opportunity to 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
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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).
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Hicks contends that his conviction also violates the
Fourth Amendment’s prohibition on unreasonable seizures.
Essentially, Hicks argues that his computer was 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 Fourth Amendment protects individuals from
unreasonable searches and seizures of their persons, houses,
papers and effects. Soldal v. Cook County, 506 U.S. 56, 62
(1992). The seizure of personal property occurs when “there is
some meaningful interference with an individual’s possessory
interests in that property.” Altman v. City of High Point, 330
F.3d 194, 204 (4th Cir. 2003) (quoting United States v.
Jacobsen, 466 U.S. 109, 113 (1984)). We hold that there was no
meaningful interference with Hicks’s possessory interests
because he did not have a property right in the images of child
pornography. See Helton v. Hunt, 330 F.3d 242, 247 (4th Cir.
2003). 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 also challenges the sentence imposed by the
district court. We review the district court’s factual findings
at sentencing for clear error and the legal interpretations of
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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 to U.S. Sentencing Guidelines (“USSG”)
§§ 2J1.2(c), 2X3.1 (2009), because (1) he was charged as a
principal, not an accessory after the fact; and (2) there was
insufficient evidence that he possessed child pornography.
First, we hold that the district court did not abuse its
discretion in referring to USSG § 2X3.1. Regardless of the
“Accessory After the Fact” title assigned to § 2X3.1, the
obstruction of justice Guidelines provision clearly states “If
the offense involved obstructing the investigation or
prosecution of a criminal offense, apply § 2X3.1 (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 clear error in
applying the child pornography cross-reference. 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,
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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 testimony at sentencing establishing all 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. . . .” USSG § 3E1.1 cmt. n.2. A conviction by
trial alone does not preclude a 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
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intend to obstruct, impede, or influence the federal
investigation. Thus, Hicks put the Government to its burden of
proof at trial on the essential elements of guilt. Accordingly,
we conclude that the district court did not clearly err in
denying an adjustment for acceptance of responsibility.
We therefore affirm the district court’s judgment. We
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
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