                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                                      NOT PRECEDENTIAL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




                                              3
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.

                                              4
