United States v. Brown ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4741
TIMOTHY EARL BROWN,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(CR-01-958)
Submitted: June 25, 2003
Decided: July 9, 2003
Before WILKINSON and NIEMEYER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
COUNSEL
Andrew R. Mackenzie, BARRETT MACKENZIE, L.L.C., Green-
ville, South Carolina, for Appellant. Regan Alexandra Pendleton,
Assistant United States Attorney, Greenville, South Carolina, for
Appellee.
2 UNITED STATES v. BROWN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Timothy Earl Brown pled guilty to conspiracy to possess with
intent to distribute more than five kilograms of cocaine and more than
fifty grams of cocaine base, in violation of 21 U.S.C. § 846 (2000).
The district court adopted the findings in the presentence investiga-
tion report and sentenced Brown to 135 months of imprisonment, to
be followed by a five-year term of supervised release.
Brown’s counsel filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), stating that there were no meritorious grounds for
appeal but raising five issues: (1) whether the district court erred in
denying Brown’s request for a downward adjustment based on his
minor role in the offense; (2) whether the district court erred by
enhancing his offense level for possession of a firearm; (3) whether
the district court erred in declining to compel the Government to
move for a substantial assistance departure; (4) whether the district
court erred in refusing to depart downward based on Brown’s sen-
tencing entrapment and manipulation theories; and (5) whether the
district court erred by refusing to depart downward based on Brown’s
post-offense rehabilitation efforts. Brown filed a pro se supplemental
brief reiterating issues (1) and (5). We affirm in part, vacate in part,
and remand for further proceedings.
Both Brown and his counsel have raised the issue of whether the
district court clearly erred in denying Brown’s request for a down-
ward adjustment for his minor role in the offense, pursuant to U.S.
Sentencing Guidelines Manual § 3B1.2 (2001). Brown admitted to
selling drugs on two occasions, and a defendant who sells drugs in a
drug conspiracy is generally not a minor participant. See USSG
§ 3B1.2(b), comment. (n.5); United States v. Brooks, 957 F.2d 1138,
1149 (4th Cir. 1992). We therefore conclude that the district court did
not clearly err in denying Brown’s request for a downward adjustment
UNITED STATES v. BROWN 3
for his role in the offense. See United States v. Perkins, 108 F.3d 512,
518 (4th Cir. 1997) (stating standard of review).
Next, Brown’s counsel raises the issue of whether the district court
erred in applying a two-level enhancement to Brown’s offense level
for possessing a firearm during a drug offense, pursuant to USSG
§ 2D1.1(b)(1). Brown argues that the Government failed to prove that
he possessed the firearm because he was not the owner of the vehicle
where the weapon was found, he was not in the vehicle when the
weapon was found, and the weapon was not in his actual possession
when it was found. Although Brown may not have owned the vehicle
where the weapon was found, his possession of the vehicle’s key and
the location of the vehicle at the state probation office’s parking lot,
where Brown was arrested, demonstrated that he had control of the
vehicle. See United States v. Gallimore, 247 F.3d 134, 137 (4th Cir.
2001) (defining constructive possession). Further, the handgun was
found in the vehicle next to a large amount of marijuana. See USSG
§ 2D1.1, comment. (n.3); United States v. McAllister, 272 F.3d 228,
234 (4th Cir. 2001). Therefore, we conclude that the district court
properly applied the enhancement for possession of a firearm during
the drug offense.
Brown’s counsel also raises the issue of whether the district court
erred in declining to compel the Government to move for a substantial
assistance departure, pursuant to USSG § 5K1.1, p.s. There was no
evidence (and Brown does not argue) that the Government’s decision
not to move for a substantial assistance departure was based on an
unconstitutional motive or was unrelated to a legitimate government
end. See Wade v. United States, 504 U.S. 181, 185-86 (1992). We
therefore find that the district court properly refused to compel the
Government to move for a substantial assistance departure.
Brown’s counsel directs our attention to whether Brown was enti-
tled to a downward departure because police engaged in sentencing
entrapment and sentencing manipulation by specifically demanding
crack cocaine in two controlled buys when Brown normally sold mar-
ijuana, and by making two controlled buys rather than one. Brown’s
sentencing entrapment claim fails because he did not claim that he
lacked a predisposition to committing the drug offense. See United
States v. Jones, 18 F.3d 1145, 1152-53 (4th Cir. 1994). Further, his
4 UNITED STATES v. BROWN
sentencing manipulation claim also fails because it is "not outrageous
for the government to continue to purchase narcotics from willing
sellers even after a level of narcotics relevant for sentencing purposes
has been sold." Id. at 1155. Despite Brown’s contention that he nor-
mally sold marijuana, there was no evidence suggesting that Brown
was not a willing seller of crack cocaine.
Finally, both Brown and his counsel maintain that Brown’s com-
pletion of a drug counseling program prior to sentencing entitled him
to a downward departure. A sentencing court’s decision not to depart
is not reviewable unless the court’s decision is based on a mistaken
view that it lacks authority to do so. United States v. Brock, 108 F.3d
31, 33 (4th Cir. 1997). In Brock, we held that exceptional post-offense
rehabilitation is a possible ground for departure. See id. at 35. In so
holding, we recognized that our previous holding in United States v.
Van Dyke, 895 F.2d 984, 986-87 (4th Cir. 1990), that post-offense
rehabilitation can never form a proper basis for departure, had been
overruled.
In this case, the district court relied on the probation officer’s mis-
taken belief that the court could not depart downward based on post-
offense rehabilitation. Although the district court did not expressly
give its reasons for denying Brown’s request to depart downward, it
is clear that the court accepted the probation officer’s statement that
the court could not depart downward for post-offense rehabilitation
due to our decision in Van Dyke. We therefore vacate this portion of
Brown’s sentence and remand to the district court for consideration
of whether Brown’s rehabilitation efforts were exceptional enough to
warrant a downward departure. We express no view on the merits of
this question.
In accordance with Anders, we have reviewed the entire record in
this case and have found no other meritorious issues for appeal. We
therefore affirm Brown’s conviction. We vacate Brown’s sentence
with regard to the district court’s refusal to depart based upon post-
offense rehabilitation efforts and remand for further proceedings con-
sistent with this opinion. In all other respects, we affirm Brown’s sen-
tence. This court requires that counsel inform his client, in writing, of
his right to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but counsel
UNITED STATES v. BROWN 5
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel’s motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART, VACATED
IN PART, AND REMANDED