United States v. Brooks , 220 F. App'x 77 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
3-22-2007
USA v. Brooks
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4453
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"USA v. Brooks" (2007). 2007 Decisions. Paper 1438.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1438
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4453
UNITED STATES OF AMERICA
v.
IBN YUSEF BROOKS,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
District Court No. 04-cr-00343-1
District Judge: Honorable Joel A. Pisano
Submitted under Third Circuit LAR 34.1(a)
on July 11, 2006
Before: SMITH, ALDISERT, and ROTH, Circuit Judges
(Filed: March 22, 2007)
OPINION
ROTH, Circuit Judge:
This is an appeal from the judgment of sentence imposed by the United States
District Court for the District of New Jersey against Ibn Yusef Brooks. For the reasons
stated below, we will affirm the order of the District Court.
I. Factual Background and Procedural History
As the facts are well known to the parties, we give only a brief description of the
issues and procedural posture of the case.
In the evening of August 19, 2003, undercover police detectives observed Ibn
Yusef Brooks walking on the street in an area of Newark, New Jersey, known for drug-
trafficking. After noticing the officers, Brooks was seen shifting an object from the
middle of his waistband to the left side. Thinking that the object was a gun, one of the
detectives began to follow Brooks while the other positioned a vehicle in front of him.
Brooks changed direction and removed a loaded Ruger 44-caliber Magnum Super Black
Hawk Revolver from his waist before placing it on the ground. Brooks then threw a clear
plastic bag, which was later found to contain 37 glass jugs of cocaine, and attempted to
flee. The detectives pursued and arrested Brooks.
On May 12, 2004, a federal grand jury indicted Brooks for possession of a firearm
by a person previously convicted of a felony pursuant to 18 U.S.C. § 922(g)(1).1 On
March 18, 2005, Brooks entered into a written plea agreement with the Government.
1
Brooks stipulated to the fact that he had been convicted, among other things, of two
felony drug-trafficking offenses.
2
Prior to sentencing, the Probation Office calculated a Total Offense Level of 26 and a
Criminal History Category of IV, which corresponded to a Sentencing Guidelines Range
of 92-115 months.
At sentencing, Brooks challenged the application of a 4-level enhancement
pursuant to U.S.S.G. § 2K2.1(b)(5) which provides: “If the defendant used or possessed
any firearm or ammunition in connection with another felony offense . . . increase by 4
levels.” The District Court agreed with the application of the enhancement on the ground
that the gun possession was in connection with the uncharged felony of cocaine
distribution. As such, the District Court imposed a sentence of 92 months, which was at
the bottom of the applicable Guidelines range. This timely appeal of the sentence
followed.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 (“The district
courts of the United States shall have original jurisdiction . . . of all offenses against the
laws of the United States.”). We have jurisdiction under 28 U.S.C. § 1291. Also, we
have jurisdiction to review the sentence for reasonableness pursuant to 18 U.S.C. §
3742(a)(1). United States v. Cooper, 437 F.3d 324, 327 (3d Cir. 2006). Finally, we
exercise plenary review over the meaning and construction of the Sentencing Guidelines
but review the District Court’s underlying factual determinations for clear error. United
States v. Butch, 256 F.3d 171, 177 (3d Cir. 2001).
3
III. Discussion
On appeal, Brooks questions the standard that the District Court applied to
determine the applicability of the § 2K2.1(b)(5) enhancement. The District Court used
the preponderance of the evidence standard; Brooks contends that the correct standard
post United States v. Booker, 543 U.S. 220 (2005), is beyond a reasonable doubt. After
this appeal was filed, we resolved the question in United States v. Grier, No. 05-1698,
slip. op. at 25 (3d Cir. Feb. 5, 2007) (en banc), holding that facts relevant to a sentencing
enhancement that constitute a “separate offense” under governing law, as is the case with
a § 2K2.1(b)(5) enhancement, need only be proved by a preponderance of the evidence.
Consequently, the District Court did not err in applying the preponderance standard.
At sentencing, Brooks challenged the application of § 2K2.1(b)(5) on the ground
that his simultaneous possession of the gun and the jugs of cocaine was “fortuitous.”
Brooks contends that on the day of his arrest he was walking down the street when he
observed the gun. Brooks proceeded to pick up the gun and then continue on his way,
eventually running into the police. Also, Brooks claims that he never admitted to
possessing the drugs with the intent to distribute. As such, Brooks claims that the
possession of the gun was not “in connection with” the felony of drug distribution and,
therefore, § 2K2.1(b)(5) should not apply.
The District Court found that § 2K2.1(b)(5) applied even assuming the veracity of
Brooks’ explanation for the gun possession. As to Brooks’ possession and distribution of
4
the cocaine, the District Court found that:
there is no question . . . [that] Mr. Brooks had the firearm while he was in
possession of the cocaine under circumstances where it was a reasonable
conclusion and inference for the charging officers2 to draw that he was in
possession of these quantities and containers of cocaine with the intent to distribute
them.
Moreover, the District Court’s finding that Brooks intended to distribute the drugs
in question was not clearly erroneous. The 37 units of cocaine were individually
packaged, and Brooks has a history of drug-trafficking.
In addition, Brooks’ arguments against the application of the sentencing
enhancement are not persuasive. In United States v. Loney, 219 F.3d 281, 284 (3d Cir.
2000), we noted that § 2K2.1(b)(5) covers “a wide range of relationships between the
firearm possession and the other felony offense.” One such relationship is the firearm’s
potential to facilitate a face-to-face felony offense. Id. at 288. Drug distribution is just
such an offense. Id. Also, a firearm’s potential of “facilitating” a drug transaction is
well-known and justifies a rebuttable inference that the weapon is possessed in
connection with the trafficking. United States v. Gregory, 345 F.3d 225, 229 (3d Cir.
2003) (noting that “common sense would suggest that the possibility that a drug trafficker
has a concealed weapon may well keep those he/she deals with ‘in line’ without the need
2
Brooks challenges the District Court’s reference to what the charging officers could have
inferred on the ground that this conclusion falls short of the requirement that the District
Court itself find the necessary connection between the gun possession and the other felony
of drug trafficking. Although the District Court’s articulation may not have been ideal, the
record as a whole supports the fact that the District Court itself thought and found that
Brooks had intended to distribute the cocaine.
5
of ever using the weapon or even revealing it.”).
Furthermore, Brooks has done nothing to rebut the inference. Along this line, his
reliance on our decision in Gregory is misplaced. Gregory concerned an altogether
different relationship, counterfeit money and weapons, a combination which does not
have the categorical “potential for violence that infests nearly every aspect of drug
trafficking.” 345 F.3d at 229.
Lastly, Brooks contends that the sentence must be vacated because the District
Court did not consider the “Sixth Amendment-compliant guideline range,” which Brooks
defines as the range produced by reference only to the facts admitted by Brooks or proven
beyond a reasonable doubt. According to Brooks, this alleged error caused the sentence
to be unreasonable because the District Court failed to consider the “un-enhanced” range,
which would be free of judicial fact finding, alongside the “enhanced” range. This
argument is based on a misreading of the Supreme Court’s decision in Booker and is
unpersuasive. Contrary to Brooks’ argument, Booker did not forbid judicial fact finding
in the course of applying the now-advisory Guidelines. See United States v. Miller, 417
F.3d 358, 363 (3d Cir. 2005) (noting that the District Court is free to engage in judicial
fact finding so long as such fact finding is consistent with Booker).
Given the District Court’s detailed articulation and conscientious application of the
18 U.S.C. 3553(a) factors, we see no reason to deem Brooks’ sentence unreasonable.
6
IV. Conclusion
For the above reasons, we will affirm the District Court’s judgment of sentence.
7