United States v. Jarod Brown , 637 F. App'x 90 ( 2016 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 15-4278
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    JAROD A. BROWN,
    Defendant - Appellant.
    Appeal from the United States District Court for the District of
    South Carolina, at Charleston.    Patrick Michael Duffy, Senior
    District Judge. (2:10-cr-01096-PMD-1)
    Submitted:   December 21, 2015              Decided:   January 5, 2016
    Before GREGORY, DUNCAN, and AGEE, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Christopher L. Murphy, MURPHY LAW OFFICES, LLC, Mt. Pleasant,
    South Carolina, for Appellant.      William N. Nettles, United
    States Attorney, Nick Bianchi, Assistant United States Attorney,
    Charleston, South Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Jarod     A.     Brown      appeals            his    conviction       and       180-month
    sentence       imposed       following       his        conditional         guilty      plea        to
    possession of firearms by a convicted felon, in violation of
    
    18 U.S.C. §§ 922
    (g)(1), 924(e) (2012).                            On appeal, Brown raises
    several     challenges        to     the     district             court’s    denial      of     his
    suppression motion and argues that the district court erred in
    declining to sentence him below the statutory minimum.                                   For the
    reasons that follow, we affirm.
    In evaluating the denial of a suppression motion, we review
    the district court’s factual findings for clear error and its
    legal determinations de novo.                 United States v. Green, 
    740 F.3d 275
    , 277 (4th Cir.), cert. denied, 
    135 S. Ct. 207
     (2014).                                           We
    construe       the    evidence       in     the       light       most    favorable       to    the
    government, the prevailing party.                           United States v. Davis, 
    690 F.3d 226
    ,     233    (4th       Cir.    2012).            Generally,      we    “defer       to    a
    district court’s credibility determinations, for it is the role
    of   the   district       court      to    observe           witnesses      and    weigh      their
    credibility         during    a    pre-trial          motion       to    suppress.”        United
    States v. Abu Ali, 
    528 F.3d 210
    , 232 (4th Cir. 2008) (internal
    quotation marks omitted).
    Brown     first        asserts       that            his    initial        incriminating
    statement      to     officers,      made    during          his    arrest,       was   taken       in
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    violation      of    Miranda      v.   Arizona,       
    384 U.S. 436
         (1966).          Our
    review of the record reveals no clear error in the district
    court’s     finding        that      Brown’s        statement          was    a     spontaneous
    utterance not prompted by custodial interrogation.                                      See Rhode
    Island    v.        Innis,     
    446 U.S. 291
    ,        300-31        (1980)         (defining
    interrogation in Miranda context).
    Brown also argues that his incriminating statements were
    involuntary         because    they     were       made    in    response          to   officers’
    threats that his loved ones would be sent to jail and that a
    baby present during his arrest would be taken into the custody
    of the Department of Social Services.                       We find no clear error in
    the    district      court’s      finding      that       officers       never          made    such
    statements.
    Brown    next      asserts      that    the    district          court      should       have
    found    that       the   officers’      search       exceeded         the     scope       of    the
    consent they were given to search for Brown and his clothing in
    his    girlfriend’s          home.      Because       Brown       did        not    raise       this
    challenge in the district court, we review the issue for plain
    error.    United States v. Carthorne, 
    726 F.3d 503
    , 509 (4th Cir.
    2013); see Henderson v. United States, 
    133 S. Ct. 1121
    , 1126-27
    (2013) (defining plain error standard).
    Given Brown’s testimony during the suppression hearing, it
    is    questionable,       at    best,    whether          Brown    could       establish         the
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    “legitimate        expectation      of    privacy”    in    his     girlfriend’s
    apartment     needed      to   demonstrate      standing    to    challenge      its
    search.      United State v. Gray, 
    491 F.3d 138
    , 144 (4th Cir.
    2007); see United States v. Castellanos, 
    716 F.3d 828
    , 846 (4th
    Cir. 2013) (listing relevant factors).                Additionally, viewing
    the evidence in the light most favorable to the Government, the
    guns were found under the mattress on which Brown attempted to
    hide, and they were discovered during the search for Brown’s
    clothing.      The       district    court    committed    no    plain   error    in
    declining to conclude, sua sponte, that the search exceeded the
    scope of consent.
    Brown also asserts that the district court erred in not
    sentencing him below the statutory mandatory minimum established
    by the Armed Career Criminal Act (ACCA), 
    18 U.S.C. § 924
    (e).                     We
    review a sentence for procedural and substantive reasonableness,
    applying a deferential abuse-of-discretion standard.                      Gall v.
    United States, 
    552 U.S. 38
    , 41, 51 (2007).                 We review questions
    of statutory interpretation related to the ACCA enhancement de
    novo.     United States v. Carr, 
    592 F.3d 636
    , 639 n.4 (4th Cir.
    2010).
    We     find    no    error     in   Brown’s   sentence.        Because      the
    Government did not move for a substantial assistance departure
    pursuant to 
    18 U.S.C. § 3553
    (e) (2012), and the safety valve
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    provision of 
    18 U.S.C. § 3553
    (f) (2012) did not apply, the court
    was   not   authorized      to     sentence   Brown    below    the    statutory
    minimum.     United States v. Allen, 
    450 F.3d 565
    , 568 (4th Cir.
    2006).      While Brown cites the recent decision in Johnson v.
    United States, 
    135 S. Ct. 2551
     (2010), that case has no impact
    on Brown’s predicate serious drug offenses, which we previously
    affirmed as valid ACCA predicates.            See United States v. Brown,
    494 F. App’x 374, 376 (4th Cir. 2012) (No. 12-4073); see also
    United States v. Susi, 
    674 F.3d 278
    , 283-84 (4th Cir. 2012)
    (addressing    mandate      rule    in   sentencing    context).        Finally,
    although Brown claims that the Sentencing Commission exercises
    an excessive delegation of lawmaking authority that violates the
    separation of powers principle, Brown’s sentence resulted from a
    statutory floor established by Congress itself.
    Accordingly, we affirm the district court’s judgment.                    We
    dispense    with     oral   argument      because     the    facts    and   legal
    contentions    are   adequately      presented   in    the   materials      before
    this court and argument would not aid the decisional process.
    AFFIRMED
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