                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-17-2007

USA v. Hough
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3241




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"USA v. Hough" (2007). 2007 Decisions. Paper 1283.
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                                                   NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                   __________

                Nos. 05-3241 and 05-3451
                      __________


            UNITED STATES OF AMERICA

                             v.

                 DON RAOUL HOUGH,

                                       Appellant

                       __________

      On Appeal from the United States District Court
          for the Western District of Pennsylvania
             (D.C. Criminal No. 03-cr-00174-1)
      District Judge: Honorable Terrence F. McVerry
                       __________

        Submitted Under Third Circuit LAR 34.1(a)
                   on March 30, 2007

Before: RENDELL, BARRY, and CHAGARES, Circuit Judges.

                 (Filed April 17, 2007 )


                       __________

               OPINION OF THE COURT
                     __________
RENDELL, Circuit Judge.

       Appellant Don Hough levels a multitude of attacks against the conviction and

sentence entered against him by the United States District Court for the Western District

of Pennsylvania. Additionally, Hough’s counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), asserting that the issues raised in Hough’s appeal are

frivolous and requesting leave to withdraw. We will affirm Hough’s conviction and the

District Court’s sentence. We will also grant counsel’s request to withdraw.

                                              I.

       On December 22, 2004, a grand jury in the Western District of Pennsylvania

returned a superseding indictment charging Hough, a previously convicted felon, with

five offenses, each stemming from his possession of large quantities of drugs and several

guns, including an assault rifle, as well as a pipebomb. Specifically, the indictment

charged Hough with: possession with intent to distribute 50 grams or more of a mixture

and substance containing a detectable amount of cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1) and 841(b)(1)(A)(iii) (Count 1); possession with intent to distribute 500

grams or more of a mixture and substance containing a detectable amount of cocaine, in

violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii) (Count 2); possession of a

firearm during a drug-trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and

924(c)(1)(B)(ii) (Count 3); possession of a firearm by a convicted felon, in violation of




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18 U.S.C. § 922(g)(1) (Count 4); and possession of an unregistered destructive device, in

violation of 26 U.S.C. § 5861(d) (Count 5).

       Rather than plead guilty, Hough elected to go to trial. On March 3, 2005, a jury

convicted Hough on all counts. On July 13, 2005, the District Court sentenced Hough to

600 months, or 50 years. The sentence consisted of: 240 months for Counts 1, 2 and 4;

a concurrent 120-month sentence for Count 5; and a consecutive 360-month sentence for

Count 3.

       On July 18, 2005, Hough timely filed a notice of appeal. Hough’s appointed

counsel subsequently filed an Anders brief, moving to withdraw his representation on the

grounds that Hough’s appeal presented no non-frivolous arguments. Hough responded

with a pro se brief setting forth numerous challenges to his conviction and sentence. We

have jurisdiction to consider these challenges pursuant to 28 U.S.C. § 1291.

                                              II.

       Hough’s pro se brief raises fifteen separate issues.1 We have carefully reviewed


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    Specifically, Hough claims that: the District Court erred in failing to grant Hough’s
motion for a new trial; there was insufficient evidence to convict on Count 3; there was
insufficient evidence to convict on Counts 1 and 2; the District Court erred in refusing to
grant Hough’s motion to suppress evidence seized during the search of his home;
the District Court violated the Double Jeopardy clause when it sentenced Hough to a
mandatory 30-year sentence for his violation of 18 U.S.C. § 924(c)(1)(B)(ii); the District
Court violated the Double Jeopardy clause when it sentenced Hough to two distinct
sentences for possessing, with an intent to distribute, both cocaine and cocaine base;
the District Court violated the holding in Shepard v. United States, 544 U.S. 13 (2005), by
relying upon the PSR in determining that Hough’s previous convictions qualified him as
an Armed Career Criminal under 18 U.S.C. § 924(e); the Armed Career Criminal Act, as

                                              3
these claims, under the standard of review appropriate for each, and find each of them to

lack merit.

                                             III.

       Pursuant to Third Circuit Local Appellate Rule 109.2(a), if trial counsel reviews

the district court record and “is persuaded that the appeal presents no issue of even

arguable merit, trial counsel may file a motion to withdraw and a supporting brief

pursuant to Anders v. California, 386 U.S. 738 (1967).” Third Circuit L.A.R. 109.2(a).

“The Court’s inquiry when counsel submits an Anders brief is thus twofold: (1) whether

counsel adequately fulfilled the rule’s requirements; and (2) whether an independent

review of the record presents any non-frivolous issues.” United States v. Youla, 241 F.3d

296, 300 (3d Cir. 2001). Because the Anders brief complied with the requirements and

because our own independent review of the record does not reveal any non-frivolous

issues, we will grant counsel’s request to withdraw.



applied to Hough, is unconstitutional; the District Court lacked jurisdiction to apply a
sentence enhancement under 21 U.S.C. § 851 because an Assistant United States
Attorney, rather than the United States Attorney, filed the § 851 Information; the District
Court lacked jurisdiction to apply the sentencing enhancement provisions of 21 U.S.C.
§ 851 because the Government did not file an Information with respect to the Superseding
Indictment; the District Court erred in failing to hold a hearing as to whether Hough had
prior convictions for purposes of 21 U.S.C. § 851; the statute of limitation provision of
21 U.S.C. § 851(e) should either be equitably tolled or found unconstitutional as applied
to Hough; the provisions of 21 U.S.C. § 851(c)(1) violate the Sixth Amendment; the
District Court erred by denying Hough the right to proceed pro se; and that the District
Court erred in failing to hold an evidentiary hearing as to whether one of Hough’s
firearms had an “altered” serial number for purposes of United States Sentencing
Guideline 2K2.1(b)(4).

                                              4
       First, we are satisfied that counsel thoroughly examined the record for appealable

issues and accurately determined that no non-frivolous issues existed. Counsel’s Anders

brief reveals that he conscientiously examined the record: he discussed the proceedings,

explained how the jury had ample evidence on which to convict Hough, and explained

how the District Court determined Hough’s sentence. See United States v. Marvin, 211

F.3d 778, 780 (3d Cir. 2000). We are “satisfied that counsel adequately attempted to

uncover the best arguments” for his client. Id. at 781.

       Second, this Court’s independent review of the record and case law did not reveal

any non-frivolous issues. As explained above, Hough’s myriad challenges to his

conviction and sentence simply lack merit.

                                             IV.

       For these reasons, we will AFFIRM the conviction and sentence imposed by the

District Court and GRANT counsel’s motion to withdraw.

_____________________




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