United States v. Ramon Deshawn Brown , 498 F. App'x 864 ( 2012 )


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  •                     Case: 11-13609         Date Filed: 08/15/2012   Page: 1 of 7
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 11-13609
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 1:10-cr-00008-WLS-TQL-1
    UNITED STATES OF AMERICA,
    llllllllllllllllllllllllllllllllllllllll                                Plaintiff-Appellee,
    versus
    RAMON DESHAWN BROWN,
    a.k.a. Raymon D. Brown,
    llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Georgia
    ________________________
    (August 15, 2012)
    Before CARNES, WILSON and BLACK, Circuit Judges.
    PER CURIAM:
    Case: 11-13609     Date Filed: 08/15/2012    Page: 2 of 7
    Ramon D. Brown appeals his conviction and 360-month sentence for
    possession of a firearm by a convicted felon, in violation of 18 U.S.C.
    §§ 922(g)(1) and 924(e)(1). Brown raises three issues on appeal. We affirm
    Brown’s conviction and sentence.
    First, Brown argues the district court erred by admitting Rule 404(b)
    evidence. Brown does not contend that the evidence was inadmissible, only that
    he failed to receive reasonable pre-trial notice from the prosecution. See Fed. R.
    Evid. 404(b)(2). We review a district court’s evidentiary rulings, including a
    ruling on Rule 404(b)’s notice requirement, for an abuse of discretion. United
    States v. Bradley, 
    644 F.3d 1213
    , 1270 (11th Cir. 2011), cert. denied, (U.S. May
    14, 2012) (No. 11-862); United States v. Carrasco, 
    381 F.3d 1237
    , 1240 (11th Cir.
    2004). Determining the reasonableness of pre-trial notice requires consideration
    of three factors: “(1) [w]hen the [g]overnment, through timely preparation for
    trial, could have learned of the availability of the [evidence]; (2)[t]he extent of
    prejudice to the opponent of the evidence from a lack of time to prepare; and
    (3)[h]ow significant the evidence is to the prosecution's case.” United States v.
    Perez-Tosta, 
    36 F.3d 1552
    , 1562 (11th Cir. 1994). Prejudice to the defendant is
    the most important of these factors.    
    Id. at 1562. 2
                   Case: 11-13609     Date Filed: 08/15/2012    Page: 3 of 7
    Here, Brown knew of the evidence prior to voir dire, Brown’s counsel
    proffered it to the district court, and Brown objected to admitting the evidence.
    However, Brown failed to request a continuance before the district court, or even
    allege any prejudice from the timing of the prosecution’s notice. Because Brown
    received reasonable pre-trial notice, the district court did not abuse its discretion
    by admitting the evidence. See 
    id. at 1560-63 &
    n.7. (finding notice minutes
    before voir dire to be reasonable pre-trial notice).
    Second, Brown argues the evidence presented by the Government was
    insufficient to support his conviction. “We review the sufficiency of the evidence
    de novo, viewing the evidence in the light most favorable to the government and
    accepting all reasonable inferences in favor of the verdict.” United States v. Tagg,
    
    572 F.3d 1320
    , 1323 (11th Cir. 2009) (quotation omitted). Because Brown did not
    move for a judgment of acquittal in the district court, “we may reverse [his]
    conviction only to prevent a manifest miscarriage of justice,” which requires us to
    find that “the evidence on a key element of the offense is so tenuous that a
    conviction would be shocking.” 
    Id. (quotation omitted). To
    establish a violation of 18 U.S.C. § 922(g)(1), the government must
    prove three elements: (1) the defendant was a convicted felon, (2) the defendant
    was in knowing possession of a firearm, and (3) the firearm was in or affecting
    3
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    interstate commerce. United States v. Beckles, 
    565 F.3d 832
    , 841 (11th Cir. 2009).
    The government “need not prove actual possession in order to establish knowing
    possession; it need only show constructive possession through direct or
    circumstantial evidence.” 
    Id. Constructive possession exists
    when the defendant
    exercises “ownership, dominion, or control over the item” or has the power and
    intent to exercise dominion or control. 
    Id. Here, Brown stipulated
    to being a convicted felon. On the day of his arrest,
    Brown fled from law enforcement while carrying a burgundy bag. During his
    flight, Brown dropped the bag. Officers recovered the bag, finding a loaded gun
    inside. Brown’s flight and subsequent abandonment of the bag demonstrate that
    he knew the contents of the bag. Further, Heather Brown testified that she saw
    Brown two weeks prior to his arrest holding a gun “similar” to the one found in
    the burgundy bag. Finally, ATF agents testified that the gun functioned, and had
    moved in interstate commerce. Because ample evidence supports each element of
    the charged offense, Brown’s conviction was not a manifest miscarriage of justice.
    Finally, Brown argues the sentencing court erred by imposing an upward
    departure1 pursuant to U.S.S.G. § 4A1.3, and by failing to consider all relevant 18
    1
    The record is unclear whether the district court departed or varied from the advisory
    guideline range. When uncertainty exists as to whether the district court applied a departure or
    variance, this Court considers: (1) whether the district court referenced a particular guideline
    4
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    U.S.C. § 3553(a) factors. We review sentencing decisions for abuse of discretion.
    United States v. Shaw, 
    560 F.3d 1230
    , 1237 (11th Cir. 2009). A sentence must be
    both procedurally and substantively reasonable. 
    Id. at 1237. Procedural
    reasonableness means that a district court correctly applied the guidelines,
    considered the § 3553(a) factors, relied on facts that are not clearly erroneous, and
    adequately explained the chosen sentence. See 
    id. A district court
    need not
    discuss each § 3553(a) factor individually. United States v. Sarras, 
    575 F.3d 1191
    ,
    1219 (11th Cir. 2009). Rather, the court need only acknowledge that it has
    considered the defendant’s arguments and the § 3553(a) factors. 
    Id. A sentence is
    substantively unreasonable “if it does not achieve the purposes of sentencing
    stated in § 3553(a).” United States v. Pugh, 
    515 F.3d 1179
    , 1191 (11th Cir. 2008)
    (quotation omitted). The party challenging the sentence carries the burden of
    establishing unreasonableness. United States v. McBride, 
    511 F.3d 1293
    , 1297
    (11th Cir. 2007).
    Under U.S.S.G. § 4A1.3, a district court may depart from the sentencing
    range “[i]f reliable information indicates that the defendant’s criminal history
    departure provision, and (2) whether the court based its decision on a belief that the guidelines
    were not adequate. United States v. Kapordelis, 
    569 F.3d 1291
    , 1316 (11th Cir. 2009). Because
    the district court cited U.S.S.G. § 4A1.3(a), and its decision was consistent with that guideline
    provision, we conclude that the district court imposed an upward departure. See 
    Kapordelis, 569 F.3d at 1316
    .
    5
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    category substantially under-represents the seriousness of the defendant’s criminal
    history or the likelihood that the defendant will commit other crimes.” U.S.S.G.
    § 4A1.3(a)(1). “[T]he nature of the prior offenses rather than simply their number
    is often more indicative of the seriousness of the defendant’s criminal record.” 
    Id. § 4A1.3 cmt.
    n. 2(B). When a defendant is already in criminal history category
    VI, the court may make an upward departure by moving incrementally to a higher
    offense level that it finds appropriate. 
    Id. § 4A1.3(a)(4)(B). A
    court need not
    explicitly discuss its reasons for bypassing each offense level. See United States v.
    Dixon, 
    71 F.3d 380
    , 383 (11th Cir. 1995). “Rather, the magnitude of these upward
    departures will be reviewed for reasonableness, based on findings by the district
    court as to (1) why the extent and nature of the defendant’s criminal history
    warrants an upward departure from category VI, and (2) why the sentencing range
    within which the defendant is sentenced is appropriate to the case.” 
    Id. The reasonableness of
    a departure must be assessed in light of the § 3553(a) factors
    and the reasons given by the district court for the departure. United States v.
    Winingear, 
    422 F.3d 1241
    , 1246 (11th Cir. 2005).
    Here, the district court did not abuse its discretion by imposing an upward
    departure because the record supports its finding that Brown’s criminal history
    category significantly understated both the seriousness of his criminal history and
    6
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    the likelihood that he will commit other crimes. See U.S.S.G. § 4A1.3(a)(1).
    Brown has committed six armed robberies, each by using a firearm. Brown has
    been convicted of causing a riot in a penal institution, and of exposing himself to a
    female correctional officer. The district court properly considered the seriousness
    of Brown’s criminal history and reasonably concluded that a four-level departure
    was necessary.
    In addition, the district court expressly stated that Brown’s 360-month
    sentence complied with the § 3553(a) factors, and it extensively addressed several
    of those factors in detail. The district court examined the nature and
    circumstances of the offense, noting that when Brown was apprehended, he was
    wearing all black and had been carrying a black ski mask, black gloves, and a
    loaded firearm. The district court observed that these facts indicated Brown was
    engaged in or attempting to engage in another armed robbery. The district court
    further noted that Brown’s criminal history indicated he had “zero respect” for the
    law. Accordingly, the district court did not abuse its discretion by imposing the
    upward departure, and Brown’s resulting 360 month-sentence was reasonable.
    AFFIRMED.
    7