United States v. Joseph Brown, Jr. , 595 F. App'x 258 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4779
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH FRANKLIN BROWN, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Senior District
Judge. (8:08-cr-00529-DKC-1)
Submitted: February 27, 2015 Decided: March 5, 2015
Before KING, GREGORY, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Allen H. Orenberg, ORENBERG LAW FIRM, P.C., North Bethesda,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, James I. Pearce, Special Assistant United States
Attorney, Arun Rao, Assistant United States Attorney, Sujit
Raman, Chief of Appeals, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph Brown, Jr., appeals his conviction following a
guilty plea to using, carrying, or brandishing a firearm during
a crime of violence, in violation of 18 U.S.C. § 924(c) (2012). 1
Brown asserts that the district court, relying on then-existing
law, failed to inform him that brandishing was an element of the
§ 924(c) offense that must be proven by the Government. Brown
also argues that the district court failed to adequately
establish that he had, in fact, brandished a firearm. Finding
no reversible error, we affirm.
Because Brown did not move to withdraw his guilty plea, we
review his challenge to his plea for plain error. United States
v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014); United States v.
Adepoju, 756 F.3d 250, 259 (4th Cir. 2014) (applying plain error
review to unpreserved error under Alleyne v. United States, 133
S. Ct. 2151 (2013)). To establish plain error, a defendant must
show: (1) there was error; (2) the error was plain; and (3) the
error affected his substantial rights. Henderson v. United
States, 133 S. Ct. 1121, 1126 (2013). In the guilty plea
context, a defendant meets this burden by “show[ing] a
reasonable probability that, but for the error, he would not
1
Brown also pled guilty to conspiracy to commit armed bank
robbery, armed bank robbery, and being a felon in possession of
a firearm. He does not challenge these convictions on appeal.
2
have entered the plea.” United States v. Davila, 133 S. Ct.
2139, 2147 (2013) (internal quotation marks omitted). Even if a
defendant satisfies these requirements, we will exercise our
discretion to remedy the error only if “the error seriously
affects the fairness, integrity or public reputation of judicial
proceedings.” Henderson, 133 S. Ct. at 1126-27 (internal
quotation marks and brackets omitted).
In Alleyne, the Supreme Court held that any fact that
increases a mandatory minimum sentence must be charged by
indictment and admitted by the defendant or found by a jury
beyond a reasonable doubt. 133 S. Ct. at 2163; United States v.
Strayhorn, 743 F.3d 917, 926 (4th Cir.) (applying Alleyne),
cert. denied, 134 S. Ct. 2689 (2014). Accordingly, we conclude
that, in light of Alleyne, the district court plainly erred when
it misrepresented to Brown the Government’s burden of proof on
the element of brandishing. 2 See Bousley v. United States, 523
U.S. 614, 618-19 (1998). However, Brown has not shown, or even
asserted, that he would not have pled guilty had he been
correctly apprised of the elements of the offense. Because
2
The district court correctly stated the law as it existed
at the time of Brown’s plea. See Harris v. United States, 536
U.S. 545 (2002), overruled by Alleyne, 133 S. Ct. at 2163.
However, plain error is assessed based on the state of the law
at the time of our review, not at the time of the district
court’s actions. Johnson v. United States, 520 U.S. 461, 468
(1997).
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there is no evidence that the error actually affected Brown’s
decision to plead guilty, we hold that Brown has failed to
establish that the error affected his substantial rights.
We also hold that the facts admitted by Brown during the
plea hearing establish an adequate factual basis to support the
plea. See United States v. Ketchum, 550 F.3d 363, 366 (4th Cir.
2008) (providing standard). A defendant is liable for his
coconspirator’s act of brandishing a firearm when he “actively
participated in the underlying . . . crime with advance
knowledge that a confederate would [brandish] a gun during the
crime’s commission.” Rosemond v. United States, 134 S. Ct.
1240, 1243 (2014). Brown admitted in the factual statement
accompanying his plea that a coconspirator brandished a rifle
throughout the bank robbery to coerce the bank’s manager and
that Brown helped plan the robbery, provided the coconspirator
with the rifle, and was with him during part of the time when he
was brandishing it. See 18 U.S.C. § 924(c)(4) (defining
“brandish”).
Accordingly, we affirm the judgment of the district court.
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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