United States v. Hoon , 259 F. App'x 123 ( 2007 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 19, 2007
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 07-8007
v. (D. Wyoming)
KENNETH HOON, (D.C. No. 05-CR-270-WFD)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.
Kenneth Hoon pleaded guilty in the United States District Court for the
District of Wyoming to one count of conspiracy to possess with the intent to
distribute methamphetamine and marijuana. See 21 U.S.C. §§ 841, 846. He did
so without entering into a plea agreement. The court sentenced him to 151
months’ imprisonment, and he appealed. His counsel has submitted an Anders
brief raising four potential issues regarding sentencing, along with a motion to
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
withdraw. See Anders v. California, 386 U.S. 738 (1967). Mr. Hoon responded,
but raised no new issues.
In Anders the Supreme Court held that a court-appointed defense counsel
may “request permission to withdraw [from an appeal] where counsel
conscientiously examines a case and determines that any appeal would be wholly
frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). To
this end, counsel must
submit a brief to the client and the appellate court indicating any
potential appealable issues based on the record. The client may then
choose to submit arguments to the court. The [c]ourt must then
conduct a full examination of the record to determine whether
defendant’s claims are wholly frivolous. If the court concludes after
such an examination that the appeal is frivolous, it may grant
counsel’s motion to withdraw and may dismiss the appeal.
Id. (citations omitted). We proceed to examine the issues presented in the Anders
brief.
The first issue is whether the district court properly calculated the drug
quantity used to determine Mr. Hoon’s offense level under the United States
Sentencing Guidelines. We review the sentencing court’s factual findings for
clear error and reverse “only if the district court’s finding was without factual
support in the record or we are left with the definite and firm conviction that a
mistake has been made.” United States v. Dalton, 409 F.3d 1247, 1251 (10th Cir.
2005) (internal quotation marks omitted). “When the actual drugs underlying a
drug quantity determination are not seized, the trial court may rely upon an
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estimate to establish the defendant’s guideline offense level so long as the
information relied upon has some basis of support in the facts of the particular
case and bears sufficient indicia of reliability.” Id. (internal quotation marks
omitted). “[T]he Court may consider relevant information without regard to its
admissibility under the rules of evidence applicable at trial, provided that the
information has sufficient indicia of reliability to support its probable accuracy.”
USSG § 6A1.3(a); see United States v. Dazey, 403 F.3d 1147, 1177 n. 7 (10th Cir.
2005).
Drug Enforcement Administration Special Agent Steve Woodson testified
at the sentencing hearing about the fruits of his investigation of the case. In
particular, he summarized statements by coconspirators and records of wire
transfers of money. Mr. Hoon contends that statements by two of his
coconspirators should not have been relied on, but we see no reason why the
district court could not have found the statements credible and reliable,
particularly in light of the corroborating information.
Next, the Anders brief argues that the district court should have reduced
Mr. Hoon’s offense level under USSG § 3B1.2 to reflect his minor or minimal
role in the offense. United States Sentencing Guidelines § 3B1.2 comment note 5
explains that a minor participant is one “who is less culpable than most other
participants”; a minimal participant, according to comment note 4, is a defendant
who is “among the least culpable of those involved,” lacking full “knowledge or
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understanding of the scope and structure of the enterprise.” Mr. Hoon bore the
burden of persuading the court that he was entitled to a reduction under § 3B1.2.
See United States v. Virgen-Chavarin, 350 F.3d 1122, 1131 (10th Cir. 2003). The
court quite reasonably was unpersuaded. In addition to the evidence of the
amount of drugs received by Mr. Hoon, Agent Woodson testified that Mr. Hoon
sent $12,000 to $15,000 by wire to individuals known to be involved in narcotics.
Furthermore, as the court observed, Mr. Hoon “was in this conspiracy over a long
period of time.” R. Vol. 6 at 60–61.
The Anders brief’s third argument is that the district court erred in refusing
to depart downward under USSG §5K2.12, which permits a departure “[i]f the
defendant committed the offense because of serious coercion, blackmail or
duress.” (emphasis added). As stated in the Guidelines, “Ordinarily coercion will
be sufficiently serious to warrant departure only when it involves a threat of
physical injury, substantial damage to property or similar injury resulting from
the unlawful action of a third party . . . .” Id. “[T]he alleged coercion must have
caused the defendant to commit the criminal act.” United States v. Gallegos, 129
F.3d 1140, 1145 (10th Cir. 1997). Mr. Hoon claimed for the first time at the
sentencing hearing that a coconspirator forced him to continue in the conspiracy
by confiscating his vehicle for nonpayment of a drug debt. The court rejected the
argument on the grounds that it was untimely and no evidence supported the
coercion claim. The court was correct on both grounds. In particular, the alleged
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incident occurred well after Mr. Hoon entered the conspiracy. The evidence
suggests that participation in the conspiracy begat the threat, not the other way
around.
The Anders brief’s last argument is that the district court should have
treated two of Mr. Hoon’s DUI convictions as related offenses under USSG
§ 4A1.2(a)(2), because they had been consolidated for sentencing. If this
argument is correct, Mr. Hoon’s criminal-history points should have been reduced
by two. Such a reduction, however, would not have affected his criminal-history
category. The court calculated that Mr. Hoon had nine criminal-history points,
and criminal-history category IV includes defendants with seven points as well as
those with nine. Therefore, Mr. Hoon would have ended up with the same
criminal-history category and the same Guidelines sentencing range.
Finally, we note that Mr. Hoon’s sentence was clearly reasonable. A
sentence within the Guidelines range is presumptively reasonable. See Rita v.
United States, 127 S. Ct. 2456, 2465 (2007); United States v. Kristl, 437 F.3d
1050, 1054–55 (10th Cir. 2006). The district court sentenced him at the low end
of the applicable Guidelines range. We see nothing suggesting unreasonableness
of the sentence.
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We conclude that Mr. Hoon’s claims are wholly frivolous. We therefore
DISMISS this appeal and GRANT his counsel’s motion to withdraw.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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