                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 10-4767


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

          v.

BRIAN C. HICKS,

                  Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:09-cr-00071-FDW-1)


Submitted:   June 21, 2011                  Decided:   July 14, 2011


Before NIEMEYER, DUNCAN, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Claire J. Rauscher, Executive Director, Ann L. Hester, Steven G.
Slawinski, Assistant Federal Public Defenders, Charlotte, North
Carolina, for Appellant.      Anne M. Tompkins, United States
Attorney, Richard Lee Edwards, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Brian   C.    Hicks    appeals    his   conviction,         following   a

jury trial, of destruction of his computer hard drive with the

intent     to      impede,       obstruct,        or     influence         a    federal

investigation, in violation of 18 U.S.C. § 1519 (2006).                          Hicks

was   under     investigation        for    possession      of   child     pornography.

After learning that federal agents wanted to speak with him,

Hicks destroyed his hard drive.                  On appeal, Hicks argues that

(1) his conviction violated due process and his Fourth Amendment

right against unreasonable seizures; and (2) the district court

erred at sentencing in applying the child pornography cross-

reference and denying Hicks a two-level reduction for acceptance

of responsibility.          Finding no reversible error, we affirm.

               Generally, we review de novo a district court’s ruling

on a constitutional challenge to a statute.                         United States v.

Buculei, 262 F.3d 322, 327 (4th Cir. 2001).                         When a defendant

fails to timely raise a constitutional challenge in the district

court, however, he forfeits the constitutional right, and we

review the issue for plain error.                 United States v. Olano, 507

U.S. 725, 732-33 (1993).             Because Hicks only asserted his Fifth

Amendment challenge in an untimely pretrial motion and failed to

raise    his    Fourth      Amendment      challenge   at    all,    his    claims   are

reviewed to determine whether (1) there was error; (2) that was

plain; and (3) that affected substantial rights.                     Id. at 732-35.

                                             2
             Hicks    first     claims    that       his    prosecution        under   18

U.S.C.   § 1519      violated    his     Fifth      Amendment        rights.       Hicks

appears to argue that he had a property right to destroy his

computer’s hard drive, and that he was deprived of that right

when   the   Government    prosecuted         him    without    due     process.       To

establish a violation of procedural due process, Hicks must show

that (1) he had a property interest, (2) of which the Government

deprived him, (3) without due process of law.                     Sunrise Corp. of

Myrtle Beach v. City of Myrtle Beach, 420 F.3d 322, 328 (4th

Cir. 2005).     Procedural due process requires, at a minimum, fair

notice and an opportunity to be heard.                      Matthews v. Eldridge,

424 U.S. 319, 333 (1976).                In order to determine whether an

individual     has    received     fair       notice,      we   “must      examine     the

relevant facts of each case.”             United States v. Hoechst Celanese

Corp., 128 F.3d 216, 224 (4th Cir. 1997).                       Beyond the minimum

requirements    of    notice     and     an   opportunity       to    be    heard,     due

process is “flexible and calls for such procedural protections

as the particular situation demands.”                   Morrissey v. Brewer, 408

U.S. 471, 481 (1972).

             Regardless of whether Hicks had a property interest in

the destruction of his hard drive, we hold that he received

sufficient     process    prior     to    any       deprivation.           The   statute

provided adequate notice that destroying the images on his hard



                                          3
drive was prohibited in light       of the federal   investigation. 1

Further, Hicks received an indictment and summons and was given

the opportunity to be heard at trial.    Hicks does not argue that

his trial did not comport with the requirements of due process. 2




     1
       Hicks also argues that Congress did not intend for § 1519
to extend to cases like his because it was enacted under the
Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745
(codified in scattered sections of 15 U.S.C. and 18 U.S.C.)
(2002).     Because we hold that the statute is plain and
unambiguous, we decline to delve into the legislative history.
See U.S. v. Hunt, 526 F.3d 639, 743-44 (11th Cir. 2008); see
also Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 450
(2002).   Furthermore, because there are not competing plausible
interpretations of the text, we need not employ the doctrine of
constitutional avoidance as Hicks requests.       See Clark v.
Martinez, 543 U.S. 371, 381 (2005).
     2
       Hicks attempts to tie into his due process claim a claim
that § 1519 interferes with the affirmative defense to child
pornography found in 18 U.S.C. § 2252(c) (2006), which applies
if

     the defendant (1) possessed less than three matters
     containing any visual depiction proscribed by [the
     child pornography statute]; (2) promptly and in good
     faith, and without retaining or allowing any person,
     other than a law enforcement agency, to access any
     visual depiction or copy thereof – (A) took reasonable
     steps to destroy each such visual depiction; or
     (B) reported the matter to a law enforcement agency
     and afforded that agency access to such visual
     depiction.

Because Hicks was not charged with possession of child
pornography and, therefore, was ineligible to assert § 2252(c)
as a defense, he suffered no injury in fact from any conflict
between the two provisions.  Accordingly, he lacks standing to
challenge § 1519 on this ground.    See Friends of the Earth,
Inc. v. Gaston Copper Recycling Corp., 629 F.3d 387, 396 (4th
Cir. 2011).


                                4
            Hicks contends that his conviction also violates the

Fourth     Amendment’s         prohibition          on      unreasonable       seizures.

Essentially,      Hicks   argues       that      his     computer     was    effectively

seized because he was not at liberty to destroy it, and, because

the agents did not acquire a warrant, they violated his Fourth

Amendment rights.

            The       Fourth     Amendment          protects        individuals       from

unreasonable      searches      and    seizures        of   their    persons,    houses,

papers and effects.            Soldal v. Cook County, 506 U.S. 56, 62

(1992).     The seizure of personal property occurs when “there is

some   meaningful      interference          with   an      individual’s     possessory

interests in that property.”             Altman v. City of High Point, 330

F.3d     194,   204    (4th     Cir.    2003)       (quoting        United   States    v.

Jacobsen, 466 U.S. 109, 113 (1984)).                     We hold that there was no

meaningful      interference          with       Hicks’s      possessory      interests

because he did not have a property right in the images of child

pornography.       See Helton v. Hunt, 330 F.3d 242, 247 (4th Cir.

2003).     Therefore, the district court did not err in convicting

Hicks under § 1519.           Because we hold that the district court did

not err, we need not decide whether any error was plain and

affected Hicks’s substantial rights.

            Hicks      also    challenges        the     sentence     imposed    by   the

district court.        We review the district court’s factual findings

at sentencing for clear error and the legal interpretations of

                                             5
the Guidelines de novo.             United States v. Carter, 601 F.3d 252,

254 (4th Cir. 2010); see also United States v. Dugger, 485 F.3d

236, 239 (4th Cir. 2007).

              Hicks     first      claims    that     the    district       court     erred

during sentencing by applying the child pornography Guidelines

provision      pursuant       to    U.S.     Sentencing         Guidelines        (“USSG”)

§§ 2J1.2(c),        2X3.1    (2009),       because    (1)    he    was     charged      as    a

principal, not an accessory after the fact; and (2) there was

insufficient        evidence       that     he    possessed       child     pornography.

First,   we    hold     that      the     district    court       did     not   abuse    its

discretion     in     referring     to     USSG   § 2X3.1.         Regardless       of   the

“Accessory      After       the    Fact”    title     assigned       to    § 2X3.1,      the

obstruction of justice Guidelines provision clearly states “If

the   offense         involved          obstructing       the      investigation             or

prosecution     of     a    criminal       offense,    apply      § 2X3.1       (Accessory

After the Fact) in respect to that criminal offense, if the

resulting offense level is greater than determined above.”                               USSG

§ 2J1.2(c).

              Nor    did    the    district       court     commit      clear    error       in

applying the child pornography cross-reference.                            In order for

the district court to apply the cross-reference, it was required

to find by a preponderance of the evidence, see United States v.

Crump, 120 F.3d 462, 468 (4th Cir. 1997), that Hicks possessed

images of prepubescent minors or those under the age of twelve,

                                             6
that a computer was used in the transmission or receipt of the

images, and that he possessed at least 150 but fewer than 300

videos. See USSG § 2G2.2(2), (6), (7)(B).                  The district court

heard   testimony    at    sentencing    establishing        all    of    the    above

elements, including testimony that Hicks admitted he had child

pornography on his computer, and Hicks presented no evidence to

the   contrary.     Therefore,      we   hold     that   there     was    sufficient

evidence to support the district court’s cross-referencing of

the child pornography Guidelines.

            Hicks also claims that the district court erred by

declining to award a sentencing adjustment for acceptance of

responsibility.          Pursuant   to   USSG     § 3E1.1,    a    reduction      for

acceptance of responsibility is appropriate “[i]f the defendant

clearly     demonstrates     acceptance      of     responsibility         for    the

offense”; it “is not intended to apply to a defendant who puts

the government to its burden of proof at trial by denying the

essential factual elements of guilt, is convicted, and only then

admits guilt. . . .”         USSG § 3E1.1 cmt. n.2.               A conviction by

trial     alone   does    not   preclude     a     defendant       from    such    an

adjustment; in rare situations, such as when “a defendant goes

to trial to assert and preserve issues that do not relate to

factual guilt,” the adjustment may be appropriate.                  Id.

            Here, Hicks proceeded to trial because he contested

his factual guilt.         Specifically, Hicks argued that he did not

                                         7
intend     to   obstruct,      impede,        or     influence     the      federal

investigation.     Thus, Hicks put the Government to its burden of

proof at trial on the essential elements of guilt.                   Accordingly,

we   conclude   that   the    district       court   did   not   clearly    err   in

denying an adjustment for acceptance of responsibility.

            We therefore affirm the district court’s judgment.                    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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