                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                               June 8, 2005
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                         No. 04-3004
          v.                                               (D. Kansas)
 GWYNDELL B. DECLERCK,                         (D.C. No. 02-CR-40072-01-RDR)

               Defendant-Appellant.




                            ORDER AND JUDGMENT *


Before EBEL, McKAY, and HENRY, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      In a four-count indictment, Gwyndell DeClerck was charged with Count I:

conspiracy to commit the crime of interference with commerce by robbery, in



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10 TH C IR . R. 36.3.
violation of 18 U.S.C. §§ 371 and 1955; Count 2: brandishing a weapon during

and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A);

Count 3: interference with commerce by robbery, in violation of 18 U.S.C. §

1951; and Count 4: brandishing a weapon during and in relation to a crime of

violence, in violation of 18 U.S.C. § 924(c)(1)(A). Mr. DeClerck, appearing pro

se with standby counsel, pleaded guilty to Counts 3 and 4, reserving certain issues

for appeal. Mr. DeClerck was sentenced to forty-one months on Count 3, and to a

consecutive eighty-four month term on Count 4.

      Mr. DeClerck’s attorney has filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), and has moved for leave to withdraw as counsel. Anders

holds that “if counsel finds his case to be wholly frivolous, after a conscientious

examination of it, he should so advise the court and request permission to

withdraw.” Id. at 744. Counsel’s request to withdraw must “be accompanied by a

brief referring to anything in the record that might arguably support the appeal,”

and a copy of this brief must be served on the client. Id.

      The government has declined to file a response brief. Mr. DeClerck has

filed a pro se reply in which he raises additional issues he wishes to appeal.

Under Anders, we must conduct a “full examination of all the proceedings” to

determine if the case is wholly frivolous. Id. For the reasons stated below, we

grant leave to withdraw and dismiss the appeal.


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                                   I. DISCUSSION

      We will address the points of possible appeal raised by counsel and Mr.

DeClerck. Through counsel, Mr. DeClerck contends (1) the district court did not

have jurisdiction to hear his case; (2) the district court erred when it denied his

motion to suppress evidence; and (3) the district court pressured him to plead

guilty. In his pro se brief, Mr. DeClerk adds the following claims: (4) the district

court abused its discretion when it denied his motion to recuse; and (5) he is

entitled to relief from his sentence pursuant to United States v. Booker, 125 S. Ct.

738 (2005).

      A. Jurisdiction

      The indictment and record clearly establish the jurisdiction of the federal

district court. Under 18 U.S.C. § 3231, “[t]he district court of the United States

shall have original jurisdiction, exclusive of the courts of the States, of all

offenses against the laws of the United States.” The District of Kansas is a

district court of the United States. See 28 U.S.C. § 96. Article I, Section 8 of the

U.S. Constitution gives Congress the power to regulate interstate commerce and

the conspiracy and firearms statutes at issue are constitutionally permissible

exercises of its authority under the Commerce Clause. See United States v.

Nguyen, 155 F.3d 1219, 1226-27 (10th Cir. 1998) (upholding “Congress’ exercise

of its Commerce Clause power in enacted 18 U.S.C. § 924(c)(1)”); United States



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v. Bolton, 68 F.3d 396, 398 (10th Cir. 1995) (concluding that 18 U.S.C. § 1951

“represents a permissible exercise of the authority granted to Congress under the

Commerce Clause”).

      B. Motion to suppress evidence

      On review of the denial of a motion to suppress, we must accept the district

court’s factual findings unless clearly erroneous, and view the evidence in the

light most favorable to those findings. United States v. Olguin-Rivera, 168 F.3d

1203, 1204 (10th Cir. 1999); United States v. Little, 60 F.3d 708, 712 (10th Cir.

1995). “The credibility of witnesses, the weight to be given evidence, and the

reasonable inferences drawn from the evidence fall within the province of the

district court.” United States v. Browning, 252 F.3d 1153, 1157 (10th Cir. 2001)

(internal quotation marks omitted).

      Mr. DeClerck emphasizes that he was subject to selective enforcement

based on his race. In United States v. Armstrong, 517 U.S. 456 (1996), the

Supreme Court defined the showing necessary for a defendant to obtain discovery

on a selective prosecution claim. Id. at 465. To obtain discovery on this claim,

Mr. DeClerck was required to present “some evidence” a “similarly-situated

individual of another race” could have been stopped, but was not. United States

v. James, 257 F.3d 1173, 1178-79 (10th Cir. 2001); see also Armstrong, 517 U.S.




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at 468-69 (requiring “some evidence tending to show the existence of the

essential elements” of discriminatory effect and discriminatory intent).

      Here, the district court conducted three separate hearings and entertained

multiple in-court challenges and motions regarding these issues. Two detectives

from Lawrence, Kansas testified that they heard the race of the suspect in the

Hampton Inn robbery before they saw Mr. DeClerck’s white Ford Mercury sedan.

They saw Mr. DeClerck and his codefendant approaching in their vehicle at a

time and location consistent with participation in the robbery. They had further

reason to suspect the white vehicle because it resembled the description of a white

Lincoln that had reportedly been seen driving away from an armed robbery in

nearby Baldwin, Kansas. The detectives knew that two armed robberies in

Baldwin were close together in time and reportedly committed by one or two

African-American males. The detectives testified that the nervous looks on the

faces of the defendants also made them suspicious. Finally, the defendants did

not stop as they were being pursued with lights and sirens, and the defendants

proceeded to attempt to ram the officers’ vehicle.

      Race alone is a constitutionally prohibited reason for an investigative stop.

See United States v. Brignoni-Ponce, 422 U.S. 873, 885-86 (1975). However, the

evasive behavior, consistent descriptions, and headlong flight, viewed in the

totality of the circumstances, support the officers’ reasonable suspicion of



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wrongdoing. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (“Headlong

flight–wherever it occurs–is the consummate act of evasion: It is not necessarily

indicative of wrongdoing, but it is certainly suggestive of such.”). We therefore

affirm the district court’s denial of the motion to dismiss.

      C. Sentencing error

      Through counsel, Mr. DeClerck alleges that because his plea was

involuntary, his resulting sentence was illegal. A court must determine that a plea

“is voluntary and did not result from force, threats, or promises.” F ED . R. C RIM .

P. 11(b)(2). We have reviewed the transcripts and are satisfied that the district

court complied with Rule 11. Mr. DeClerck stated that he had not received any

promises or assurances for entering the plea, and that he fully understood the plea

agreement and the maximum penalty he might receive for entering the plea.

There is no indication that Mr. DeClerck’s plea was involuntary.

      D. Motion to recuse

      “We review the denial of a motion to recuse for abuse of discretion,” and

“will uphold a district court’s decision unless it is an ‘arbitrary, capricious,

whimsical, or manifestly unreasonable judgment.’” Higganbotham v. Okla. ex

rel. Okla. Transp. Comm’n, 328 F.3d 638, 645 (10th Cir. 2003) (quoting Coletti v.

Cudd Pressure Control, 165 F.3d 767, 777 (10th Cir. 1999)). Because Mr.

DeClerck is proceeding pro se, we construe his allegations and appellate filings



                                          -6-
liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hunt v. Uphoff,

199 F.3d 1220, 1223 (10th Cir. 1999).

      Mr. DeClerck contends that the magistrate judge and district court judge

were biased, in violation of 28 U.S.C. § 455(a). Specifically, he maintains that

the magistrate judge displayed bias against him when she denied him (1) the right

to receive notice of indictment, (2) the opportunity to prepare and dispute various

allegations, (3) the opportunity to challenge “extradition into federal jurisdiction,”

(4) the right to confront the accuser and to present defense witnesses, and (5) the

right to put forth evidence to prove his innocence. Mr. DeClerck further contends

the district court acted with bias during pretrial hearings when it (1) suggested

Mr. DeClerck represent himself, (2) neglected to review any evidence in support

of Mr. DeClerck’s innocence, and (3) demonstrated a prejudice against African-

American defendants. He also maintains that the trial court allowed Mr.

DeClerck to be choked and gagged in open court, denying him the right to defend

his case.

      Our review of the record indicates no abuse of discretion by the district

court. Mr. DeClerck fired several court-appointed attorneys and continued to

make outrageous demands upon his standby counsel and the court. The district

court bent over backwards to accommodate Mr. DeClerck, to the extent that it

obliged him in his demand to be called “Secured Party” in open court, rather than



                                          -7-
by his legal name. The court allowed him to make dozens of baseless arguments

and scheduled several hearings to assuage Mr. DeClerck’s concerns. It also

tolerated his insolence when he refused to stand at the opening of court and while

addressing the court. He frequently interrupted the judge and opposing counsel

and consistently delayed and disrupted his hearings. As to his alleged “gagging,”

the record indicates that, during a status conference, Mr. DeClerck continued to

interrupt the court, despite several warnings. The court asked that Mr. DeClerck

be removed from the courtroom while his standby counsel remained in the

courtroom. Mr. DeClerck watched and listened to the status conference from the

U.S. Marshal’s facility. Accordingly, we hold that the district court did not

abuse its discretion in denying the motion to recuse under 28 U.S.C. § 455.

      E. Booker error

      Mr. DeClerck next argues that the district court committed

non-constitutional Booker error by mandatorily applying the Guidelines.

Assuming there was error in sentencing Mr. DeClerck under the Guidelines, and

that the error was plain, United States v. Gonzalez-Huerta, 403 F.3d 727, 732

(10th Cir. 2005) (en banc), Mr. DeClerck cannot meet the third prong of the

plain-error test. To affect substantial rights, an error must have been prejudicial

and “must have affected the outcome of the district court proceedings.” United

States v. Olano, 507 U.S. 725, 724 (1993). The burden is on the defendant to



                                         -8-
demonstrate that the error affected his substantial rights. Id. In such cases, the

defendant is required to show a “reasonable probability” that the purported error

altered the result of the sentencing proceedings. United States v. Dominguez

Benitez, 124 S. Ct. 2333, 2339 (2004). “[A defendant] can make this showing by

demonstrating a reasonable probability that had the district court applied the

post-Booker sentencing framework, he would have received a lesser sentence.”

United States v. Trujillo-Terrazas, No. 04-2075, 2005 WL 880896, at *3 (10th

Cir. Apr. 13, 2005).

      Mr. DeClerck has failed to point to anything specifically demonstrating a

reasonable probability that the judge would have sentenced him differently after

Booker. After the district court determined that Mr. DeClerck’s applicable

guidelines range for Count 3 was thirty-three to forty-one months, it sentenced

him to a forty-one month term of imprisonment. In other words, the court

exercised its discretion and sentenced Mr. DeClerck to serve the maximum term

of imprisonment it could lawfully impose. For Count 4, the district court

sentenced Mr. DeClerck to the mandatory minimum sentence, which did not

amount to error under Booker. See United States v. Payton , No. 04-8054, 2005

WL 1030462 (10th Cir. May 4, 2005) (holding “there was no non-constitutional

Booker error in sentencing [defendant because] the district court had no discretion

under the statute to do other than impose the mandatory minimum sentence”). As



                                         -9-
a result, any argument that the district court might have sentenced Mr. DeClerck

differently had it understood it had discretion to do so is simply unpersuasive.

                                III. CONCLUSION

      Because Mr. DeClerck has no meritorious grounds for appeal, we GRANT

counsel’s request to withdraw and DISMISS the appeal. Appellant’s motion for

appointment of counsel is denied.



                                                Entered for the Court,


                                                Robert H. Henry
                                                Circuit Judge




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