United States v. Denmark , 277 F. App'x 142 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-12-2008
USA v. Denmark
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4081
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"USA v. Denmark" (2008). 2008 Decisions. Paper 1243.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-4081
____________
UNITED STATES OF AMERICA
Appellee,
v.
CHRISTOPHER DENMARK,
Appellant
____________
On Appeal from United States District Court
for the Eastern District of Pennsylvania
D.C. No. 05-cr-00582
District Judge: Honorable Robert F. Kelly
____________
Submitted Under Third Circuit LAR 34.1(a)
May 6, 2008
Before: SCIRICA, Chief Judge, BARRY and HARDIMAN, Circuit Judges.
(Filed: May 12, 2008 )
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
A jury convicted Christopher Denmark of conspiracy to commit arson in violation
of 18 U.S.C. § 844(m); arson in violation of 18 U.S.C. § 844(i); and making false
statements in bankruptcy in violation of 18 U.S.C. § 152(3). Following a hearing, the
District Court sentenced Denmark to 93 months imprisonment. Denmark filed a timely
appeal.
I.
Because we write exclusively for the parties, who are familiar with the facts and
proceedings below, we will not revisit them here.
Pursuant to Anders v. California, 386 U.S. 738 (1967), Denmark’s appointed
counsel has examined the record, concluded that there are no non-frivolous issues for
review, and requested permission to withdraw. This request was accompanied by a brief
identifying the following issues as arguably possessing merit: (1) whether the District
Court properly applied a base offense level of 24 to the arson crimes; (2) whether
Denmark qualified for a two-level enhancement as a leader or organizer of the arson
crimes; (3) whether the District Court properly applied the U.S.S.G. § 2B1.1
fraud/misrepresentation guideline as opposed to the § 2J1.3 perjury guideline to the
bankruptcy offense; and (4) whether the District Court correctly calculated the amount of
the loss attributable to the bankruptcy offense as between $200,000 and $400,000
purusant to § 2B1.1.
2
With regard to the first issue, Denmark’s counsel cites U.S.S.G. § 2K1.4,
providing for a base offense level of 24 “if the offense . . . involved the destruction or
attempted destruction of a dwelling . . . or a place of public use” and notes that the
building in question was a nightclub that sold alcoholic beverages to members of the
public. With regard to the second issue, counsel notes that the club belonged to
Denmark; that Denmark was the only individual at the scene with a motive to burn the
club down; that Denmark was convicted of the conspiracy offense; and that Denmark
instructed a janitor who had arrived on the scene to leave. With regard to the third issue,
counsel notes that Denmark’s conviction under 18 U.S.C. § 152(3) necessarily entailed a
finding that Denmark acted knowingly and with the intent to defraud the creditors and
also notes that U.S.S.G. § 2B1.1(b)(8)(B) contains a specific reference to bankruptcy
proceedings. With regard to the fourth issue, counsel notes that, in convicting Denmark
on the bankruptcy count, the jury accepted the government’s theory that Denmark did not
list the mortgage on his bankruptcy schedules in order to conceal his expected receipt of
more than $200,000 in insurance proceeds from the Bankruptcy Court.
In a series of submissions accompanying his informal brief, Denmark argues that:
(1) the sentencing factors found by the District Court had to be proven beyond a
reasonable doubt; (2) his trial counsel and appellate counsel were ineffective; and (3) the
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retroactive application of United States v. Booker, 543 U.S. 220 (2005) to his pre-Booker
conduct violated the Ex Post Facto Clause.1
As Denmark concedes, his first argument is foreclosed by this Court’s decision in
United States v. Grier, 475 F.3d 556 (3d Cir. 2007), in which we held that the
preponderance of the evidence standard applies to the determination of facts relevant at
sentencing. With regard to Denmark’s second argument, this Court generally does not
entertain ineffective assistance of counsel claims on direct appeal; rather, “a defendant
must raise ineffective assistance of counsel in a collateral proceeding under 28 U.S.C.
§ 2255 in order that the district court may create a sufficient record for appellate review.”
Government of Virgin Islands v. Forte, 806 F.2d 73, 77 (3d Cir. 1986). Finally, as
Denmark concedes, this Court rejected his third argument in United States v. Pennavaria,
445 F.3d 720 (3d Cir.), cert. denied, 127 S. Ct. 531 (2006), in which we held that the
retroactive application of Booker did not violate the Ex Post Facto Clause.
For the foregoing reasons, we will grant counsel’s motion to withdraw and we will
affirm the judgment of the District Court.
1
Denmark also advised his appellate counsel that there were two cases pending
the Supreme Court that “might warrant raising” - Rita v. United States, 127 S. Ct. 2456
(2007) and Claiborne v. United States, 549 U.S. —, 127 S. Ct. 2245 (2007). He also
referred to Apprendi v. New Jersey, 530 U.S. 466 (2006), Blakely v. Washington, 542
U.S. 296 (2004), and Booker itself. None of these cases provides a basis for appellate
relief.
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