United States v. Duane Brown ( 2023 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-4449
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DUANE CHALEDRON BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Leonie M. Brinkema, District Judge. (1:06-cr-00456-LMB-1)
Submitted: January 18, 2023 Decided: January 31, 2023
Before AGEE, DIAZ, and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Geremy C. Kamens, Federal Public Defender, Patrick L.
Bryant, Appellate Attorney, Cadence A. Mertz, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.
Jessica D. Aber, United States Attorney, Aidan Taft Grano-Mickelsen, Assistant United
States Attorney, Richmond, Virginia, Raemarie Zanzucchi, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Duane Chaledron Brown pled guilty to a cocaine base conspiracy and was sentenced
in 2007 to 188 months’ imprisonment, * to be followed by five years’ supervised release.
Brown commenced his supervision in April 2014. Three months later, Brown drove a
vehicle while intoxicated, causing an accident that killed a 13-year-old girl (“MV-1”). He
pled guilty in state court to involuntary manslaughter and felony hit-and-run and was
sentenced to 10 years’ active imprisonment, an additional 10 years’ imprisonment,
suspended, and three years’ supervised probation.
Based on his commission of this new criminal conduct, Brown’s federal probation
officer petitioned to revoke Brown’s supervised release. During the revocation hearing,
the district court received written statements from several of MV-1’s friends and family
and, over Brown’s objection, permitted MV-1’s mother to address the court. The district
court ultimately revoked Brown’s supervised release and sentenced him to 27 months’
imprisonment.
Brown appeals his revocation sentence, arguing only that the district court erred in
considering statements from MV-1’s friends and family—particularly, her mother’s
unsworn oral statement—because those individuals did not qualify as “crime victims” for
purposes of the Crime Victims’ Rights Act, 18 U.S.C. § 3771 (“CVRA”). The Government
*
Brown’s prison term later was reduced to 120 months pursuant to 18 U.S.C.
§ 3582(c)(2).
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argues that the district court did not abuse its broad discretion to consider evidence at
sentencing and that, in any event, any error was harmless. We affirm.
“We affirm a revocation sentence so long as it is within the prescribed statutory
range and is not plainly unreasonable.” United States v. Coston, 964 F.3d 289, 296 (4th
Cir. 2020) (internal quotation marks omitted). We first consider whether the sentence is
procedurally or substantively unreasonable, evaluating “the same procedural and
substantive considerations that guide our review of original sentences” but taking “a more
deferential appellate posture than we do when reviewing original sentences.” United States
v. Padgett, 788 F.3d 370, 373 (4th Cir. 2015) (cleaned up). Only if we find a revocation
sentence unreasonable will we consider “whether it is plainly so.” United States v. Slappy,
872 F.3d 202, 208 (4th Cir. 2017) (internal quotation marks omitted).
Within this framework, we review questions of statutory interpretation de novo, see
United States v. Perez, 22 F.4th 430, 435 (4th Cir. 2022), and rulings regarding the
admissibility of evidence and introduction of witnesses at sentencing for abuse of
discretion, see United States v. Brooks, 524 F.3d 549, 564 (4th Cir. 2008); see also United
States v. Dillard, 891 F.3d 151, 158 (4th Cir. 2018) (describing standard). We review
unpreserved sentencing challenges only for plain error. United States v. Aplicano-Oyuela,
792 F.3d 416, 422 (4th Cir. 2015).
As noted above, Brown grounds his challenge in the CVRA, which guarantees crime
victims certain rights, including “[t]he right to be reasonably heard at any public
proceeding in the district court involving release, plea, sentencing, or any parole
proceeding.” 18 U.S.C. § 3771(a)(4). We need not resolve, however, whether MV-1’s
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family and friends fall within the CVRA’s definition of “crime victim.” See 18 U.S.C.
§ 3771(e)(2)(A). As the Government argues, a federal district judge “has wide discretion”
when imposing sentence and, subject to due process constraints, “may appropriately
conduct an inquiry broad in scope, largely unlimited either as to the kind of information he
may consider, or the source from which it may come.” United States v. Tucker, 404 U.S.
443, 446 (1972); see 18 U.S.C. § 3661. “That discretion also carries forward to later
proceedings that may modify an original sentence.” Concepcion v. United States, 142 S.
Ct. 2389, 2398 (2022); see also United States v. Haymond, 139 S. Ct. 2369, 2379-80 (2019)
(plurality opinion) (“[S]upervised release punishments arise from and are treated as part of
the penalty for the initial offense.” (cleaned up)). “The only limitations on a court’s
discretion to consider any relevant materials at an initial sentencing or in modifying that
sentence are those set forth by Congress in a statute or by the Constitution.” Concepcion,
142 S. Ct. at 2400.
Although the CVRA requires district courts to allow certain individuals to be heard
in criminal proceedings, it does not prohibit individuals from being heard or otherwise limit
a judge’s discretion to consider relevant material at sentencing. See 18 U.S.C. § 3771. The
statements made by MV-1’s family and friends were relevant to the nature, circumstances,
and seriousness of Brown’s violation conduct, as well as the magnitude of his breach of
trust in violating the terms of his release. See 18 U.S.C. § 3583(e) (identifying relevant
sentencing factors); United States v. Ramos, 979 F.3d 994, 1003 (2d Cir. 2020); see also
United States v. Webb, 738 F.3d 638, 641-42 (4th Cir. 2013) (observing that revocation
sentence “should sanction primarily the defendant’s breach of trust, while taking into
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account, to a limited degree, the seriousness of the underlying violation and the criminal
history of the violator,” and explaining appropriate role of violation’s seriousness under 18
U.S.C. § 3583(e) (internal quotation marks omitted)). We therefore conclude that the
district court acted within its broad discretion in considering these statements.
Brown also appears to take issue with the district court’s decision to permit MV-1’s
mother to give a statement without requiring her to testify under oath and subject to cross-
examination. Brown’s passing references to this issue arguably are insufficient to preserve
appellate review. See Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir.
2017) (“A party waives an argument by failing to present it in its opening brief or by failing
to develop its argument—even if its brief takes a passing shot at the issue.” (cleaned up)).
In any event, Brown did not preserve an objection on these grounds below, and his
challenge is reviewable only for plain error. See United States v. Zayyad, 741 F.3d 452,
459 (4th Cir. 2014) (“To preserve an argument on appeal, the defendant must object on the
same basis below as he contends is error on appeal.”). Brown fails to satisfy his burden to
establish that the district court’s consideration of MV-1’s mother’s statement absent formal
testimony and cross-examination affected his substantial rights. See Greer v. United States,
141 S. Ct. 2090, 2100 (2021) (describing plain error standard).
Accordingly, we affirm the revocation 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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