* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10 TH C IR . R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### June 8, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 04-3004
v. (D. Kansas) GWYNDELL B. DECLERCK,

Defendant-Appellant. (D.C. No. 02-CR-40072-01-RDR)

ORDER AND JUDGMENT *

Before EBEL , McKAY , and HENRY , Circuit Judges. After examining the briefs and appellate record, th is 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 c harged with Count I: conspiracy to commit the crime of interference with commerce by robbery, in-2-

violation of 18 U.S.C. §§ 371 and 1955; Count 2: br andishing a weapon during and in relation to a crime of violence, in violatio n 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-on e 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 wit hdraw 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 an d request permission to withdraw.” Id . at 744. Counsel’s request to withdraw must “be a ccompanied by a brief referring to anything in the record that migh t arguably support the appeal,” and a copy of this brief must be served on the clie nt. Id. The government has declined to file a response brie f. 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 pr oceedings” to determine if the case is wholly frivolous. Id. For the reasons stated below, we grant leave to withdraw and dismiss the appeal.-3- I. DISCUSSION We will address the points of possible appeal raise d by counsel and Mr. DeClerck. Through counsel, Mr. DeClerck contends ( 1) the district court did not have jurisdiction to hear his case; (2) the distric t court erred when it denied his motion to suppress evidence; and (3) the district c ourt 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 moti on 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 jur isdiction of the federal district court. Under 18 U.S.C. § 3231, “[t]he dis trict 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.” T he 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 regul ate interstate commerce and the conspiracy and firearms statutes at issue are c onstitutionally permissible exercises of its authority under the Commerce Claus e. See United States v. Nguyen , 155 F.3d 1219, 1226-27 (10th Cir. 1998) (upholdin g “Congress’ exercise of its Commerce Clause power in enacted 18 U.S.C. § 924(c)(1)”); United States-4-

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 t o 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 sele ctive enforcement based on his race. In United States v. Armstrong , 517 U.S. 456 (1996), the Supreme Court defined the showing necessary for a d efendant 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.-5-

at 468-69 (requiring “some evidence tending to show the existence of the essential elements” of discriminatory effect and di scriminatory intent). Here, the district court conducted three separate h earings 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 approach ing 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 rese mbled 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 t wo armed robberies in Baldwin were close together in time and reportedly committed by one or two African-American males. The detectives testified t hat 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 head long flight, viewed in the totality of the circumstances, support the officers ’ reasonable suspicion of-6-

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 sugge stive 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, threat s, 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 t hat he had not received any promises or assurances for entering the plea, and t hat 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 abu se 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 alle gations and appellate filings-7-

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). S pecifically, he maintains that the magistrate judge displayed bias against him whe n 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 “extr adition into federal jurisdiction,” (4) the right to confront the accuser and to presen t 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 re view any evidence in support of Mr. DeClerck’s innocence, and (3) demonstrated aprejudice against AfricanAmerican defendants. He also maintains that the tr ial 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 disc retion by the district court. Mr. DeClerck fired several court-appointed attorneys and continued to make outrageous demands upon his standby counsel an d the court. The district court bent over backwards to accommodate Mr. DeCler ck, to the extent that it obliged him in his demand to be called “Secured Party” in open court, rather than-8-

by his legal name. The court allowed him to make d ozens of baseless arguments and scheduled several hearings to assuage Mr. DeCle rck’s concerns. It also tolerated his insolence when he refused to stand atthe opening of court and while addressing the court. He frequently interrupted th e judge and opposing counsel and consistently delayed and disrupted his hearings . As to his alleged “gagging,” the record indicates that, during a status conferen ce, Mr. DeClerck continued to interrupt the court, despite several warnings. The court asked that Mr. DeClerck be removed from the courtroom while his standby cou nsel remained in the courtroom. Mr. DeClerck watched and listened to th e 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 recus e under 28 U.S.C. § 455. E. Booker error Mr. DeClerck next argues that the district court co mmitted non-constitutional Booker error by mandatorily applying the Guidelines. Assuming there was error in sentencing Mr. DeClerckunder 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 mee t 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 d efendant to-9-

demonstrate that the error affected his substantial rights. Id. In such cases, the defendant is required to show a “reasonable probabi lity” 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 les ser 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 specif ically demonstrating a reasonable probability that the judge would have se ntenced him differently after Booker . After the district court determined that Mr. DeC lerck’s applicable guidelines range for Count 3 was thirty-three to fo rty-one months, it sentenced him to a forty-one month term of imprisonment. In other words, the court exercised its discretion and sentenced Mr. DeClerckto serve the maximum term of imprisonment it could lawfully impose. For Coun t 4, the district court sentenced Mr. DeClerck to the mandatory minimum sen tence, 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 distri ct court had no discretion under the statute to do other than impose the mandatory minimum sentence”). As-10-

a result, any argument that the district court migh t 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 forappeal, we GRANT counsel’s request to withdraw and DISMISS the appea l. Appellant’s motion for appointment of counsel is denied.

Entered for the Court, Robert H. Henry Circuit Judge