United States v. Brown ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 30 2000
TENTH CIRCUIT
__________________________ PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-3009
(D. Kan.)
CORY E. BROWN, (D.Ct. No. 97-CR-40096)
Defendant-Appellant.
____________________________
ORDER AND JUDGMENT *
Before BRORBY, KELLY, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant Cory E. Brown, appearing through counsel who filed an Anders
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
brief, 1 appeals the sentence the district court imposed following his guilty plea.
We exercise our jurisdiction under 28 U.S.C. § 1291 and affirm.
Mr. Brown pled guilty to one count of robbery of a post office in violation
of 18 U.S.C. § 2114 and a second count for use of a firearm during a crime of
violence in violation of 18 U.S.C. § 924(c). The district court initially sentenced
Mr. Brown to consecutive sentences of thirty-six months incarceration for the
robbery conviction and sixty months incarceration for the firearm conviction.
After his appeal time expired, Mr. Brown filed a motion pursuant to 28 U.S.C.
§ 2255 to vacate, set aside, or correct his sentence. In his motion, Mr. Brown
asserted his counsel failed to file a timely appeal despite Mr. Brown’s insistence
on contesting his sentence. Following an evidentiary hearing, the district court
granted Mr. Brown’s § 2255 motion finding his trial attorney failed to determine
if Mr. Brown knowingly and voluntarily waived his right to appeal. The district
court then determined “[t]he proper remedy is to vacate ... [Mr. Brown’s]
sentence and allow him to be resentenced so he may perfect an appeal.”
1
See Anders v. California, 386 U.S. 738, 744 (1967) (requiring counsel who finds
an appeal to be wholly frivolous to advise the court, request permission to withdraw, and
provide an accompanying brief referring to anything in the record that might arguably
support the appeal.) Accordingly, Mr. Brown’s appellate attorney provided a brief
outlining Mr. Brown’s claims, noting his belief Mr. Brown’s appeal is frivolous, and
requesting permission to withdraw as counsel.
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Accordingly, the district court vacated Mr. Brown’s sentence, directed the
probation office to prepare an amended presentencing report, and permitted the
parties to file objection thereto. Following a sentencing hearing and objections
filed by both parties, the district court entered an order resentencing Mr. Brown to
fifteen months incarceration for the robbery conviction, instead of the initial
thirty-six months, and to the same sixty months incarceration for the firearm
conviction, both to run consecutively.
On direct appeal, Mr. Brown’s appellate counsel raises two grounds of
error at Mr. Brown’s direction, in accordance with the Anders requirements. We
construe Mr. Brown’s first argument as contesting the district court’s adverse
rulings on his five objections to the presentencing report. 2 A review of Mr.
Brown’s objections shows he contested the district court’s factual findings and
application of the United States Sentencing Guidelines (“U.S.S.G.”) to those
findings.
2
Counsel provided Mr. Brown’s argument, in its entirety, as follows:
At issue in this appeal are Mr. Brown’s five objections to the
presentence report which were all denied by the Court. The Court made
specific findings with respect to each objection raised in its Memorandum
and Order memorializing the rulings.
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In his second argument on appeal, Mr. Brown asserts the district court
lacked authority to impose a separate consecutive sentence for his firearm
conviction under 18 U.S.C. § 924(c) and United States v. Gilkey, 118 F.3d 702(10th Cir. 1997), which discusses application of U.S.S.G. § 2B3.1(b)(2).
Essentially, Mr. Brown is asserting the district court should have enhanced his
sentence under § 2B3.1(b)(2) for use of a firearm during commission of a crime
of violence, rather than apply a separate sixty-month consecutive sentence for his
firearm conviction. In making this argument, however, Mr. Brown’s appellate
counsel admits this Circuit clearly settled this issue in United States v. Blake, 59
F.3d 138 (10th Cir.), cert. denied, 516 U.S. 1016 (1995). The government
counsel contends that because Mr. Brown did not raise this argument before the
district court, our review must be for plain error. Mr. Brown filed and was
granted a motion to extend time to file a response to his own counsel’s Anders
brief, but Mr. Brown failed to file the reply brief outlining his sentencing
arguments.
We begin with our standard of review. Generally, “[w]e review questions
of law regarding application of the Sentencing Guidelines de novo ... [and]
findings of fact under the clearly erroneous standard, mindful of our obligation to
give ‘due regard’ to the district judge’s determinations of the credibility of
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witnesses.” United States v. Wiseman, 172 F.3d 1196, 1217-18 (10th Cir.)
(citations omitted), cert. denied, 120 S. Ct. 211 (1999). However, we review
legal questions involving application of the Sentencing Guidelines for plain error
when they are raised for the first time on appeal. Gilkey, 118 F.3d at 704.
Applying these standards, and after a complete review of the record, we
find no merit in Mr. Brown’s arguments on appeal. The five objections to the
presentencing report raised by Mr. Brown are thoroughly addressed in the district
court’s December 15, 1999 Memorandum and Order. Based on certain credibility
determinations, the district court made factual findings: 1) Mr. Brown acted as an
organizer, leader, manager or supervisor in the robbery, and 2) Mr. Brown held
victims at gun point, used a laser sight on the gun to intimidate them and ensure
their cooperation, and forced them to the floor at gun point. Based on these
findings, the district court 1) applied a two-level enhancement under U.S.S.G. §
3B1.1(c) for Mr. Brown’s role as an organizer, leader, manager or supervisor in
the robbery; 2) applied a two-level enhancement for physical restraint with a
firearm under U.S.S.G. § 2B3.1(b)(4)(B); and 3) declined to apply a two-level
reduction in Mr. Brown’s sentence under U.S.S.G. § 3B1.2(b), holding Mr. Brown
did not play a minor role in the offense. Finally, in addressing Mr. Brown’s
objection his offense level should not be increased by six levels under U.S.S.G.
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§ 2B3.1(b)(2)(B), the district court noted it already granted Mr. Brown’s
objection to such an increase prior to issuance of the new presentencing report.
Under the circumstances presented and the applicable legal standards applied, we
find no error in the district court’s treatment of Mr. Brown’s objections to the
presentencing report.
As to Mr. Brown’s second argument, we review it for plain error. In so
doing, we agree this Circuit fully addressed the issue Mr. Brown presents on
appeal in Blake. See 59 F.3d at 139-40. For the purpose of judicial economy, we
believe Mr. Brown’s argument deserves no further discussion, other than to
announce our holding the district court did not errr in consecutively sentencing
Mr. Brown for the separate conviction of using a gun during the robbery pursuant
to 18 U.S.C. § 924(c). See Blake, 59 F.3d at 139-40.
For these reasons, we AFFIRM Mr. Brown’s conviction and sentence.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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