United States v. Jamel Brown , 614 F. App'x 632 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4633
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMEL CHAWLONE BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones,
District Judge. (2:13-cr-00016-JPJ-PMS-1)
Submitted: May 28, 2015 Decided: June 19, 2015
Before WILKINSON, AGEE, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry Shelton, Federal Public Defender, Brian J. Beck, Assistant
Federal Public Defender, Abingdon, Virginia, for Appellant.
Anthony P. Giorno, Acting United States Attorney, Debbie H.
Stevens, Special Assistant United States Attorney, Abingdon,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jamel Chawlone Brown appeals from his 110-month sentence
entered pursuant to his guilty plea to possession of contraband
in prison, in violation of 18 U.S.C. § 1791(a)(2) (2012), and
possession of heroin, in violation of 21 U.S.C. § 844(a) (2012).
On appeal, Brown raises numerous challenges to the calculation
of the Guidelines range, as well as the sentence imposed. We
affirm.
I.
Brown first argues that the district court erred by
applying the cross-reference in U.S. Sentencing Guidelines
Manual § 2P1.2(c) (2013), which directs courts to “apply the
offense level from § 2D1.1” if the “object of the offense was
the distribution of a controlled substance.” As a result of the
application of this cross-reference, Brown’s guidelines range
was increased from 37 to 46 months’ imprisonment, to 110 to 137
months’ imprisonment. Brown contends that the application of
the cross-reference was improper because he pleaded guilty to
simple possession only.
We need not reach the merits of this argument because even
assuming the district court improperly applied the § 2P1.2(c)
cross-reference, any such error was harmless. Applying the
“assumed error harmlessness inquiry,” we may affirm a sentence
without reaching the merits of an asserted guidelines error if
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(1) “the district court would have reached the same result even
if it had decided the guidelines issue the other way,” and
(2) “the sentence would be reasonable even if the guidelines
issue had been decided in the defendant’s favor.” United States
v. Gomez-Jimenez, 750 F.3d 370, 382 (4th Cir. 2014)
(quoting United States v. Savillon-Matute, 636 F.3d 119, 123
(4th Cir. 2011)).
In this case, the first element of the inquiry is satisfied
by the district court’s unambiguous statement that it would have
imposed the same 110-month sentence even if it had decided the
cross-reference issue in Brown’s favor. See J.A. 381 (“[W]ere
the correct guideline range 37 to 46 months, I would have varied
upward to the sentence I am prepared to impose.”). Proceeding
to the second step of the inquiry, we must consider whether the
110-month sentence would be substantively reasonable even if we
were to assume that the district court erred in applying the
cross-reference. In order to assess the substantive
reasonableness of this sentence, we consider “the totality of
the circumstances to see whether the sentencing court abused its
discretion in concluding that the sentence it chose satisfied
the standards set forth in § 3553(a),” according “due deference”
to sentences that vary from the guidelines range. Gomez-
Jimenez, 780 F.3d at 383 (quoting United States v. Mendoza-
Mendoza, 597 F.3d 212, 216 (4th Cir. 2010); United States v.
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Engle, 592 F.3d 495, 504 (4th Cir. 2010)). Here, the district
court provided a detailed explanation of why the particular
facts of the case would justify a sentence of 110 months even if
the cross-reference did not apply, citing, among other things,
the seriousness of the offense and Brown’s criminal history.
Because the record reflects that the district court carefully
considered the requisite § 3553(a) factors in light of Brown’s
individual circumstances and the arguments presented by the
parties, we conclude that the 110-month sentence would be
substantively reasonable even if the cross-reference did not
apply. We therefore find that any error with respect to the
§ 2P1.2(c) cross-reference was harmless and affirm its
application without reaching the merits of Brown’s arguments.
II.
Brown next contends that the district court improperly used
rote multiplication to calculate the applicable drug weight.
According to Brown, drug estimates must err on the side of
caution, and Brown contends that the court’s dry calculations
ignored the conjecture and assumption involved in attributing
Brown with responsibility for 24 bags of heroin, each containing
.9 grams.
In assessing a challenge to the district court’s
application of the Guidelines, we review the district court’s
factual findings for clear error. United States v. Alvarado
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Perez, 609 F.3d 609, 612 (4th Cir. 2010). The Government is
required to prove a defendant’s drug quantity by a preponderance
of the evidence. United States v. Carter, 300 F.3d 415, 425
(4th Cir. 2002). The defendant bears the burden to demonstrate
that the information contained in the presentence report is
unreliable or inaccurate. United States v. Kiulin, 360 F.3d
456, 461-62 (4th Cir. 2004). The district court is not required
“to err on the side of caution in approximating drug quantity,”
but need “only determine that it was more likely than not that
the defendant was responsible for at least the drug quantity
attributed to him.” Id. at 461 (emphasis in original).
We hold that the court did not clearly err in relying on
co-Defendant Ashley Wilson’s testimony that, at Brown’s
direction, she smuggled 24 bags of heroin into the prison and
transferred three bags to Brown via a kiss. Prison officials
later recovered two bags from Brown while he was in a dry cell.
The bags contained a total of 1.8 grams of heroin.
First, the district court’s methodology of multiplying the
known number of balloons by the quantity contained in the two
balloons that were seized and weighed was
appropriate. Cf. United States v. Hickman, 626 F.3d 756, 769
(4th Cir. 2010) (“[W]here courts have evidence of a number of
transactions, they have been permitted to multiply that number
by an average weight-per-transaction to reach an estimate.”).
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While Hickman recognized that district courts should err on the
side of caution, Hickman was addressing a case “where evidence
of unknown transactions was meager and offered virtually no
guide as to the amounts that may have been involved.” Id. at
770. Here, there was evidence, explicitly found credible by the
district court, that there were 24 bags involved in the offense.
Two of the bags contained a total of 1.8 grams of heroin, and
Wilson testified that all the bags, which were delivered to her
together and were to be transferred secretly, appeared to
contain the same amount of the same substance. Brown presented
no evidence that the number of bags was incorrect or that the
bags contained any other substance or weight. The district
court concluded that all the bags contained the same amount and
substance and calculated a drug weight of 21.6 grams. Because
the drug weight was calculated in an acceptable manner based on
specific evidence regarding the number of balloons and their
contents, the district court did not clearly err in determining
the drug amount.
III.
Brown next contends that the district court incorrectly
synthesized the whole of the record evidence when considering
Wilson’s testimony. Brown avers that Wilson’s testimony was not
credible and was contradicted by the record. As discussed
above, the district court’s factual findings are reviewed for
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clear error. Clear error occurs “when, although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.” United States v. Harvey, 532 F.3d
326, 336-37 (4th Cir. 2008) (citation and internal quotation
marks omitted). In calculating drug amounts for sentencing
purposes, “a sentencing court may give weight to any relevant
information before it, including uncorroborated hearsay,
provided that the information has sufficient indicia of
reliability to support its accuracy.” United States v.
Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010). “[W]hen a
district court’s factual finding is based upon assessments of
witness credibility, such finding is deserving of the highest
degree of appellate deference.” United States v. Thompson, 554
F.3d 450, 452 (4th Cir. 2009) (internal quotation marks
omitted).
Our review of the record confirms that the Government
established the relevant drug quantity by a preponderance of the
evidence. Although the quantity was based primarily on the
testimony of Wilson, the district court was able to view and
examine Wilson. The court had before it her eyewitness
testimony as to the number of bags and the similarity of the
bags. Two of the bags were actually weighed and tested. There
is no contradictory evidence in the record, and the facts Brown
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now relies upon were before the district court when it made its
ruling. Thus, we find that the district court’s credibility
finding was not clear error.
IV.
Brown next argues that the district court erred in applying
a two-point leadership role adjustment under USSG § 3B1.1(c).
Brown avers that such an enhancement is error as a matter of
law, given that he was only convicted of simple possession of
heroin for one transaction where he lacked any physical control
over Wilson.
Contrary to Brown’s argument, the issue at hand is a
factual one, and we review the district court’s assessment of a
leadership role enhancement for clear error. See United
States v. Thorson, 633 F.3d 312, 317 (4th Cir. 2011). The
Sentencing Guidelines provide for a two-level adjustment where
the defendant is found to be an organizer, leader, manager, or
supervisor in a conspiracy that involves less than five
participants. USSG § 3B1.1(c). In determining whether the
defendant exercised control over at least one other
participant, see United States v. Rashwan, 328 F.3d 160, 166
(4th Cir. 2003), the court should consider:
the exercise of decision making authority, the nature
of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense,
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the nature and scope of the illegal activity, and the
degree of control and authority exercised over others.
USSG § 3B1.1(c) cmt. n.4.
Here, the district court found that Brown organized the
scheme and directed Wilson on her role. The court noted that
Wilson was young and naïve and without motive other than to
please Brown. Due to her submission, Brown dominated and
controlled her activities. Intending to distribute the heroin,
Brown arranged for the drugs to be delivered to Wilson and
directed Wilson to bring the heroin to the prison and transfer
it to him. The district court’s factual determination that
Brown exercised control over at least one other participant in
the conspiracy was well-supported by the record. Therefore, the
district court did not clearly err in imposing the two-level
enhancement for having a leadership role.
V.
Finally, Brown contends that the district erred in
determining that his crime was not motivated by drug addiction.
District courts may consider drug addiction in choosing a
reasonable sentence. United States v. Garcia, 497 F.3d 964, 972
(9th Cir. 2007). However, here, the district court made a
factual finding that Brown’s crime was not motivated by drug
addiction.
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The record shows that Brown had negative drug tests while
in prison and that the crime involved an amount much larger than
a user would possess. Brown relies on an investigator’s
testimony that drug tests will only be positive if the prisoner
used the drug within a three-day period, and on Brown’s
statement to the probation officer that he used heroin in prison
due to an addiction. Nonetheless, given the amount of heroin
involved, Brown’s negative drug tests, and Wilson’s statements
regarding her knowledge of Brown’s drug use, it was not clear
error for the district court to conclude that Brown was not
motivated by drug addiction.
VI.
Based on the foregoing, we affirm Brown’s sentence. 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
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