United States v. Brown , 166 F. App'x 694 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4820
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIMOTHY EARL BROWN,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-5614)
Submitted: January 13, 2006 Decided: February 16, 2006
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Ray Coit Yarborough, Jr., LAW OFFICE OF COIT YARBOROUGH, Florence,
South Carolina, for Appellant. Jonathan S. Gasser, United States
Attorney, Regan A. Pendleton, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Timothy Earl Brown’s conviction was affirmed July 9,
2003. See United States v. Brown, No. 02-4741, 2003 WL 21541050(4th Cir. July 9, 2003) (unpublished). We remanded the sentence
for the limited purpose of allowing the district court to consider
post-offense rehabilitation in imposing a sentence. After remand,
the district court imposed the same 135-month sentence. We
affirmed. See United States v. Brown, No. 03-4820, 2004 WL 1053225(4th Cir. May 11, 2004) (unpublished). By order entered January
24, 2005, the United States Supreme Court granted certiorari,
vacated this court’s decision and remanded for further proceedings
in light of United States v. Booker, 543 U.S. 220 (2005).
Brown’s sentence was based upon a mandatory application
of the sentencing guidelines in which the district court made
certain findings of fact. Brown’s offense level was based upon a
quantity of crack cocaine, a quantity of marijuana and possession
of a firearm. The offense level was reduced as a result of Brown’s
acceptance of responsibility. The amount of crack cocaine for
which Brown was found accountable is not being challenged. The
amount of marijuana has no actual bearing on the offense level
given the amount of crack cocaine. With respect to the challenged
increase to the offense level for possession of a firearm, a fact
not admitted by the defendant nor found beyond a reasonable doubt,
we find no Sixth Amendment violation. In addition, we find no
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plain error as a result of the mandatory application of the
guidelines.
Brown was sentenced before the Supreme Court decided
Blakely v. Washington, 542 U.S. 296 (2004), or Booker (holding that
Blakely applied to federal sentencing guidelines). We have
identified two types of Booker error: a violation of the Sixth
Amendment, and a failure to treat the sentencing guidelines as
advisory. United States v. Hughes, 401 F.3d 540, 552-53 (4th Cir.
2005). A Sixth Amendment error occurs when the district court
imposes a sentence greater than the maximum permitted based on
facts found by a jury or admitted by the defendant. Id. at 546.
Brown did not allege in the district court a Sixth
Amendment error or an error with respect to the mandatory
application of the guidelines. Therefore, review is for plain
error. Id. at 547. To demonstrate plain error, an appellant must
establish an error occurred, it was plain, and it affected his
substantial rights. Id. at 547-48. If an appellant meets these
requirements, the court’s “discretion is appropriately exercised
only when failure to do so would result in a miscarriage of
justice, such as when the defendant is actually innocent or the
error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. at 555 (internal
quotation marks and citation omitted).
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For the purpose of this appeal, we assume the two-level
enhancement for possession of a firearm was not admitted by Brown
or proven beyond a reasonable doubt. If the two points for the
possession were removed from the offense level, Brown’s offense
level before factoring acceptance of responsibility would have been
32.1 For purposes of determining Booker error, we use the
guideline range based on the facts the defendant admitted before
the range was adjusted downward for acceptance of responsibility.
United States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005).
Brown’s guideline range under this analysis would have been 151-188
months’ imprisonment. Brown’s 135 month sentence is less than that
authorized by the guidelines without consideration of the firearm.
Thus, no Sixth Amendment error occurred.
Brown cannot show plain error in the mandatory
application of the guidelines. In United States v. White, 405 F.3d
208, 216-17 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005), we
reviewed for plain error where the mandatory application of the
guidelines was not raised in the district court. We held treating
the guidelines as mandatory was plain error in light of Booker, id.
at 216-17, and declined to presume prejudice, id. at 217-22,
holding the “prejudice inquiry, therefore, is . . . whether after
pondering all that happened without stripping the erroneous action
1
The offense level for drug quantity was 32 whether or not the
marijuana was factored into the calculation. See U.S. Sentencing
Guidelines Manual § 2D1.1 (2001).
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from the whole, . . . the judgment was . . . substantially swayed
by the error.” Id. at 223 (internal quotation marks and citations
omitted). To make this showing, a defendant must “demonstrate,
based on the record, that the treatment of the guidelines as
mandatory caused the district court to impose a longer sentence
than it otherwise would have imposed.” Id. at 224. Because “the
record as a whole provide[d] no nonspeculative basis for concluding
that the treatment of the guidelines as mandatory ‘affect[ed] the
district court’s selection of the sentence imposed,” id. at 223
(quoting Williams v. United States, 503 U.S. 193, 203 (1992))
(first alteration added), we concluded the error did not affect the
defendant’s substantial rights and affirmed the sentence. Id. at
225; see also United States v. Collins, 412 F.3d 515, 524-25 (4th
Cir. 2005) (finding defendant failed to demonstrate prejudice from
being sentenced under mandatory sentencing guidelines).
Similarly, we find Brown has not shown a nonspeculative
basis on which we could conclude the district court would have
sentenced him differently had the guidelines been advisory instead
of mandatory. Accordingly, Brown cannot demonstrate that
application of the guidelines as mandatory affected his substantial
rights.
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We affirm the sentence.2 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
2
Brown’s remaining arguments are beyond the scope of the
Supreme Court’s order and are not reviewable by this court.
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