United States v. Antoine Hill ( 2014 )

UNPUBLISHED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 Decided: November 20, 2014
Before MOTZ and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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 Through
counsel, Hill asserts that his 152-month sentence is
unreasonable because he argues it was clear error for 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 of error, as well as
additional assignments of error. 2 Hill has also moved for a
certificate of appealability as to his unsuccessful habeas
claims. 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 a hybrid appeal such as Hill’s is before the
court, we have explained that “[i]f the petitioner seeks 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)].” United States v. Hadden, 475 F.3d
652, 666 (4th Cir. 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 not comply with § 2253’s [certificate of
appealability] requirement.” Id. (emphasis omitted). 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. 14-
5307). “The first step in our review of a sentence mandates
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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 Cir. 2010)
(internal quotation marks and alterations omitted). 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 from a personal injury settlement he previously
received. 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. United States v.
Hicks, 948 F.2d 877, 882 (4th Cir. 1991). “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. This court will “find clear
4
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 this court from the final order in a § 2255
proceeding unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (2012). A
certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). When the district court denies relief
on the merits, a prisoner satisfies this standard by
demonstrating that reasonable jurists would find that the
district court’s assessment of the constitutional claims is
debatable or wrong. Slack v. McDaniel, 529 U.S. 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 motion states a debatable
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claim of the denial of a constitutional right. Slack, 529 U.S.
at 484-85. 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. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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