United States v. Hutchins ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4198
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
VINCENT CONSTANTINE HUTCHINS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, District
Judge. (1:00-cr-00253-TSE)
Submitted: January 31, 2007 Decided: March 5, 2007
Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John B. Mann, JOHN B. MANN, P.C., Richmond, Virginia, for
Appellant. Paul Edmund McNulty, Kelli Hamby Ferry, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Vincent C. Hutchins appeals his 192-month prison sentence
after pleading guilty to one count of conspiracy to distribute
hashish oil in violation of 21 U.S.C. §§ 841(a)(1) & 846 (2000).
Hutchins’ attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), acknowledging the absence of any
meritorious issues on appeal.* Hutchins has filed a pro se
supplemental brief, challenging the determination of the Sentencing
Guidelines range and raising constitutional error. Finding no
reversible error, we affirm.
Hutchins asserts that the district court erred in
determining that his failure to appear at sentencing warranted an
obstruction of justice enhancement, claiming that the failure to
appear constituted a separate offense pursuant to 18 U.S.C. § 3146(2000), and that under United States v. Booker, 543 U.S. 220(2005), a jury was required to make the necessary factual findings
for the enhancement. The district court was not in error to impose
the obstruction of justice enhancement simply because Hutchins
could have faced a separate failure to appear count. See 18 U.S.C.
§ 3146 (2000); U.S. Sentencing Guidelines Manual § 2J1.6 (1998).
*
Although counsel notes that there is a waiver contained in
Hutchins’ plea agreement, the Government does not seek to enforce
the waiver. Because the Government has not relied on the waiver
provision to assert that appellate review is precluded, the
argument raised by counsel need not be addressed. See United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005) (citing United
States v. Brock, 211 F.3d 88, 90 n.1 (4th Cir. 2000)).
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The conduct was not double-counted and Hutchins admitted to
absconding.
Nor does the two-level enhancement for obstruction of
justice run afoul of Booker or the Sixth Amendment. In sentencing
defendants after Booker, district courts should continue to apply
a preponderance of the evidence standard, taking into account that
the resulting Guidelines range is advisory only. United States v.
Morris, 429 F.3d 65, 72 (4th Cir. 2005). The district court fully
complied with these requirements.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Hutchins’ conviction and sentence. This court
requires counsel inform his client, in writing, of his right to
petition the Supreme Court of the United States for further review.
If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on the
client. 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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