                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                      April 8, 2014
                   UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,

 v.                                                      No. 13-4124
                                              (D.C. No. 2:05-CR-00423-DAK-1)
 ANTHONY RICHARD HAMILL,                                 (D. of Utah)

              Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges. **



      Anthony Hamill, a federal prisoner proceeding pro se, appeals the district

court’s denial of two alternative challenges to the jurisdiction of his sentencing

court. Hamill also moves to proceed in forma pauperis (IFP). Exercising




      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM the judgment of the

district court and DENY Hamill’s application to proceed IFP. 1

                                 I. Background

      In 2005, a federal grand jury indicted Hamill on one count of distributing

child pornography in violation of 18 U.S.C. § 2252A(a)(2). Hamill waived

indictment and pleaded guilty to the lesser charge of possession of child

pornography under 18 U.S.C. § 2252A(a)(5)(B). At Hamill’s request, the court

imposed a sentence the same day, giving Hamill the mandatory minimum of 120

months of imprisonment followed by a term of supervised release.

      Hamill did not directly appeal his sentence, but he did timely request

habeas relief on numerous grounds. After losing on his claim for habeas relief,

Hamill has made a habit of submitting frivolous filings in the district court. In

his latest effort, which is the subject of this appeal, Hamill purports to challenge,

on two different grounds, the district court’s jurisdiction to impose a sentence on

him following his guilty plea. First, Hamill claims the district court lacked

subject matter jurisdiction because the government failed to properly present his

case to a grand jury. Second, Hamill claims that the district court improperly

sentenced him without preparing and introducing a presentencing report (PSR) in


      1
        Hamill has also submitted a response to the government’s motion to
supplement the record. We granted the government’s motion on January 21, 2014
and find no merit to defendant’s imaginative objections to the addendum’s
admission.

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a timely fashion. The district court summarily rejected both of Hamill’s

protestations.

                                   II. Analysis

      We review the soundness of the district court’s jurisdictional

determinations de novo. Australian Gold, Inc. v. Hatfield, 436 F.3d 1228, 1234

(10th Cir. 2006). To the extent that Hamill validly challenges the particulars of

his sentence, we review the sentencing court’s decision for abuse of discretion.

United States v. Booker, 543 U.S. 220, 261 (2005). Although we generously

construe the filings of all pro se litigants during our review, we do not serve as

Hamill’s advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

      A. Grand Jury Proceedings

      Hamill frames his first challenge as a question of subject matter

jurisdiction, presumably to account for his failure to raise the issue in the

numerous motions and filings that he has brought since his conviction over eight

years ago. Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995) (“Subject

matter jurisdiction cannot be conferred or waived by consent, estoppel, or failure

to challenge jurisdiction early in the proceedings.”). But the Supreme Court has

held that defects in the process of indictment by grand jury do not present

jurisdictional consequences that deprive a court of its power to adjudicate a case.

United States v. Cotton, 535 U.S. 625, 630 (2002). In other words, Hamill has

not properly presented an issue of subject matter jurisdiction, and he relinquished

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his ability to challenge any alleged shortcomings with his indictment when he

failed to raise the issue on direct appeal or in his request for habeas relief.

Irrespective of its timeliness, Hamill’s motion lacks merit because he

unambiguously waived his right to prosecution by indictment under his plea

agreement. See Fed. R. Crim. P. 7(b).

      B. Sentencing

      Hamill’s second challenge is more difficult to decipher, but it is also

couched in terms of subject matter jurisdiction. Construed liberally, however, the

gravamen of Hamill’s argument is that the sentencing court’s failure to consider

his PSR in advance of sentencing was unreasonable. As with the indictment,

however, Hamill knowingly and voluntarily waived his right to appeal the

reasonableness of his sentence through his plea agreement. United States v.

Tanner, 721 F.3d 1231, 1233 (10th Cir. 2013). A direct appeal of his sentence, of

course, would also be untimely.

      In any event, we find no error in the sentencing court’s decision to forego

the PSR in sentencing Hamill. In the normal course, Federal Rule of Criminal

Procedure 32(c) requires the preparation of a PSR before the court imposes a

sentence. Under subsection 32(c)(1)(A)(ii), by contrast, no PSR is necessary

when “the court finds that the information in the record enables it to meaningfully

exercise its sentencing authority under [the applicable sentencing statute], and the

court explains its finding on the record.” Fed. R. Crim. P. 32(c)(1)(A)(ii). The

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sentencing court’s explanation from its minute entry is admittedly sparse, but it

did specify that the court “[found] a factual basis upon which to proceed with”

both the plea and the sentencing. R., Vol. I at 4.

      Moreover, the court noted on the record that the defendant “request[ed] the

Court impose [a] sentence today.” Id. Despite its brevity, the court’s explanation

was a reasonable exercise of its authority and comported with Hamill’s preference

as to the timing of his sentencing hearing. See, e.g., United States v. Brown, 557

F.3d 297, 300–01 (6th Cir. 2009) (upholding the court’s sentencing decision

under Rule 32 because the court properly exercised its discretion in part by

considering the defendant’s preferred timing for the hearing).

                                 III. Conclusion

      Based on the foregoing, we AFFIRM the judgment of the district court and

DENY Hamill’s application to proceed IFP.

                                       ENTERED FOR THE COURT,

                                       Timothy M. Tymkovich
                                       Circuit Judge




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