United States v. Brian Hicks

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4767

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.

2
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).

4
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

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 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,

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 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

7
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