United States v. Brian Hicks, 438 F. App'x 216

Brian C. Hicks was convicted at trial of destroying his computer hard drive to impede a federal investigation for child pornography.
Hicks learned federal agents wanted to speak with him and destroyed the hard drive.
He challenged the conviction as violating due process and the Fourth Amendment, and challenged sentencing rulings.
The district court applied the cross-reference to the child pornography guidelines and denied an acceptance-of-responsibility reduction.
This appeal follows a decision affirming the judgment on these grounds.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did Hicks' prosecution violate due process rights?	Hicks asserts a property interest in destroying his hard drive and due process was lacking.	The government provided notice and an opportunity to be heard; no due process violation.	No due process violation; notice and opportunity to respond were sufficient.
Did Hicks' Fourth Amendment rights against unreasonable seizures apply?	Destruction of the drive while under investigation amounted to an unlawful seizure.	There was no meaningful interference with Hicks's possessory interests because he had no right in the images.	No Fourth Amendment error; no seizure where the defendant had no property right in the images.
Was the sentencing cross-reference and related enhancements properly applied?	USSG § 2X3.1 and the § 2G2.2 cross-reference were misapplied because Hicks was a principal, not an accessory, and lacked sufficient possession evidence.	District court properly used § 2X3.1 as the obstruction guideline and supported cross-reference with evidence of possession and transmission of child pornography.	Proper to apply the cross-reference and § 2X3.1; evidence supported cross-reference calculation.
Was the denial of acceptance of responsibility justified?	Hicks should receive a two-level reduction for acceptance of responsibility.	Hicks went to trial and contested guilt, so no acceptance-of-responsibility reduction.	District court did not clearly err in denying the adjustment.

Sunrise Corp. of Myrtle Beach v. City of Myrtle Beach, 420 F.3d 322 (4th Cir. 2005) (due process requires fair notice and opportunity to be heard)
Matthews v. Eldridge, 424 U.S. 319 (U.S. 1976) (due process minimum requirements)
Morrissey v. Brewer, 408 U.S. 471 (U.S. 1972) (due process protections in revocation proceedings)
Soldal v. Cook County, 506 U.S. 56 (U.S. 1992) (definition of seizure of property)
United States v. Jacobsen, 466 U.S. 109 (U.S. 1984) (searches and interference with property rights)
Crump, 120 F.3d 462 (4th Cir. 1997) (preponderance standard for cross-reference applicability)
U.S. v. Carter, 601 F.3d 252 (4th Cir. 2010) (sentencing guidelines de novo review framework)
U.S. v. Dugger, 485 F.3d 236 (4th Cir. 2007) (standard for reviewing sentencing determinations)
Helton v. Hunt, 330 F.3d 242 (4th Cir. 2003) (ownership/right in materials affecting seizure analysis)
U.S. v. Buculei, 262 F.3d 322 (4th Cir. 2001) (standard of review for constitutional challenges)
U.S. v. Olano, 507 U.S. 725 (U.S. 1993) (plain error review when constitutional challenge unpreserved)