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    United States v. Brown, 4th Cir. (2006)

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    The court affirmed Timothy Earl Brown's sentence on remand from the Supreme Court. The court found no Sixth Amendment violation or plain error. While the district court made findings of fact to increase the offense level for firearm possession, Brown's sentence of 135 months was still below the guideline range calculated without that enhancement. The court also found Brown did not demonstrate his sentence would have been different had the guidelines been advisory instead of mandatory. Therefore, Brown failed to show the mandatory application of the guidelines affected his substantial rights.

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    United States v. Brown, 4th Cir. (2006)

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    The court affirmed Timothy Earl Brown's sentence on remand from the Supreme Court. The court found no Sixth Amendment violation or plain error. While the district court made findings of fact to increase the offense level for firearm possession, Brown's sentence of 135 months was still below the guideline range calculated without that enhancement. The court also found Brown did not demonstrate his sentence would have been different had the guidelines been advisory instead of mandatory. Therefore, Brown failed to show the mandatory application of the guidelines affected his substantial rights.

    Original Description:

    Filed: 2006-02-16 Precedential Status: Non-Precedential Docket: 03-4820

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    The court affirmed Timothy Earl Brown's sentence on remand from the Supreme Court. The court found no Sixth Amendment violation or plain error. While the district court made findings of fact to increase the offense level for firearm possession, Brown's sentence of 135 months was still below the guideline range calculated without that enhancement. The court also found Brown did not demonstrate his sentence would have been different had the guidelines been advisory instead of mandatory. Therefore, Brown failed to show the mandatory application of the guidelines affected his substantial rights.

    Copyright:

    Public Domain
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    Download as pdf
    15 views6 pages

    United States v. Brown, 4th Cir. (2006)

    Uploaded by

    Scribd Government Docs
    The court affirmed Timothy Earl Brown's sentence on remand from the Supreme Court. The court found no Sixth Amendment violation or plain error. While the district court made findings of fact to increase the offense level for firearm possession, Brown's sentence of 135 months was still below the guideline range calculated without that enhancement. The court also found Brown did not demonstrate his sentence would have been different had the guidelines been advisory instead of mandatory. Therefore, Brown failed to show the mandatory application of the guidelines affected his substantial rights.

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    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 03-4820

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    versus
    TIMOTHY EARL BROWN,
    Defendant - Appellant.

    On Remand from the United States Supreme Court.


    (S. Ct. No. 04-5614)

    Submitted:

    January 13, 2006

    Decided:

    February 16, 2006

    Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior


    Circuit Judge.

    Affirmed by unpublished per curiam opinion.

    Ray Coit Yarborough, Jr., LAW OFFICE OF COIT YARBOROUGH, Florence,


    South Carolina, for Appellant. Jonathan S. Gasser, United States
    Attorney, Regan A. Pendleton, Assistant United States Attorney,
    Greenville, South Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.


    See Local Rule 36(c).

    PER CURIAM:
    Timothy Earl Browns conviction was affirmed July 9,
    2003.

    See United States v. Brown, No. 02-4741, 2003 WL 21541050

    (4th Cir. July 9, 2003) (unpublished).

    We remanded the sentence

    for the limited purpose of allowing the district court to consider


    post-offense rehabilitation in imposing a sentence.
    the

    district

    court

    imposed

    the

    same

    135-month

    After remand,
    sentence.

    We

    affirmed. See United States v. Brown, No. 03-4820, 2004 WL 1053225


    (4th Cir. May 11, 2004) (unpublished).

    By order entered January

    24, 2005, the United States Supreme Court granted certiorari,


    vacated this courts decision and remanded for further proceedings
    in light of United States v. Booker, 543 U.S. 220 (2005).
    Browns sentence was based upon a mandatory application
    of the sentencing guidelines in which the district court made
    certain findings of fact.

    Browns offense level was based upon a

    quantity of crack cocaine, a quantity of marijuana and possession


    of a firearm.

    The offense level was reduced as a result of Browns

    acceptance of responsibility.

    The amount of crack cocaine for

    which Brown was found accountable is not being challenged.

    The

    amount of marijuana has no actual bearing on the offense level


    given the amount of crack cocaine.

    With respect to the challenged

    increase to the offense level for possession of a firearm, a fact


    not admitted by the defendant nor found beyond a reasonable doubt,
    we find no Sixth Amendment violation.

    - 2 -

    In addition, we find no

    plain error as a result of the mandatory application of the


    guidelines.
    Brown was sentenced before the Supreme Court decided
    Blakely v. Washington, 542 U.S. 296 (2004), or Booker (holding that
    Blakely

    applied

    to

    federal

    sentencing

    identified two types of Booker error:

    guidelines).

    We

    have

    a violation of the Sixth

    Amendment, and a failure to treat the sentencing guidelines as


    advisory.
    2005).

    United States v. Hughes, 401 F.3d 540, 552-53 (4th Cir.

    A Sixth Amendment error occurs when the district court

    imposes a sentence greater than the maximum permitted based on


    facts found by a jury or admitted by the defendant.

    Id. at 546.

    Brown did not allege in the district court a Sixth


    Amendment

    error

    or

    an

    error

    application of the guidelines.


    error.

    Id. at 547.

    with

    respect

    to

    the

    mandatory

    Therefore, review is for plain

    To demonstrate plain error, an appellant must

    establish an error occurred, it was plain, and it affected his


    substantial rights.

    Id. at 547-48.

    If an appellant meets these

    requirements, the courts discretion is appropriately exercised


    only when failure to do so would result in a miscarriage of
    justice, such as when the defendant is actually innocent or the
    error

    seriously

    reputation

    of

    affects

    judicial

    the

    fairness,

    proceedings.

    quotation marks and citation omitted).

    - 3 -

    integrity
    Id.

    at

    555

    or

    public

    (internal

    For the purpose of this appeal, we assume the two-level


    enhancement for possession of a firearm was not admitted by Brown
    or proven beyond a reasonable doubt.

    If the two points for the

    possession were removed from the offense level, Browns offense


    level before factoring acceptance of responsibility would have been
    32.1

    For

    purposes

    of

    determining

    Booker

    error,

    we

    use

    the

    guideline range based on the facts the defendant admitted before


    the range was adjusted downward for acceptance of responsibility.
    United States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005).
    Browns guideline range under this analysis would have been 151-188
    months imprisonment. Browns 135 month sentence is less than that
    authorized by the guidelines without consideration of the firearm.
    Thus, no Sixth Amendment error occurred.
    Brown

    cannot

    show

    plain

    error

    in

    the

    mandatory

    application of the guidelines. In United States v. White, 405 F.3d


    208, 216-17 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005), we
    reviewed for plain error where the mandatory application of the
    guidelines was not raised in the district court.

    We held treating

    the guidelines as mandatory was plain error in light of Booker, id.


    at 216-17, and declined to presume prejudice, id. at 217-22,
    holding the prejudice inquiry, therefore, is . . . whether after
    pondering all that happened without stripping the erroneous action

    The offense level for drug quantity was 32 whether or not the
    marijuana was factored into the calculation. See U.S. Sentencing
    Guidelines Manual 2D1.1 (2001).
    - 4 -

    from the whole, . . . the judgment was . . . substantially swayed


    by the error.
    omitted).

    Id. at 223 (internal quotation marks and citations

    To make this showing, a defendant must demonstrate,

    based on the record, that the treatment of the guidelines as


    mandatory caused the district court to impose a longer sentence
    than it otherwise would have imposed.

    Id. at 224.

    Because the

    record as a whole provide[d] no nonspeculative basis for concluding


    that the treatment of the guidelines as mandatory affect[ed] the
    district courts selection of the sentence imposed, id. at 223
    (quoting Williams v. United States, 503 U.S. 193, 203 (1992))
    (first alteration added), we concluded the error did not affect the
    defendants substantial rights and affirmed the sentence.

    Id. at

    225; see also United States v. Collins, 412 F.3d 515, 524-25 (4th
    Cir. 2005) (finding defendant failed to demonstrate prejudice from
    being sentenced under mandatory sentencing guidelines).
    Similarly, we find Brown has not shown a nonspeculative
    basis on which we could conclude the district court would have
    sentenced him differently had the guidelines been advisory instead
    of

    mandatory.

    Accordingly,

    Brown

    cannot

    demonstrate

    that

    application of the guidelines as mandatory affected his substantial


    rights.

    - 5 -

    We affirm the sentence.2

    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

    Browns remaining arguments are beyond the scope of the


    Supreme Courts order and are not reviewable by this court.
    - 6 -

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