United States v. Brown ( 2021 )

Case: 20-40481 Document: 00516117250 Page: 1 Date Filed: 12/03/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 3, 2021
No. 20-40481 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Timothy Earl Brown,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:18-CR-41-1
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Timothy Earl Brown was found guilty by a jury of being a felon in
possession of a firearm and a felon in possession of ammunition, in violation
of 18 U.S.C. § 922(g)(1). The district court imposed an upward variance and
sentenced Brown to 60 months of imprisonment, followed by three years of
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-40481 Document: 00516117250 Page: 2 Date Filed: 12/03/2021
No. 20-40481
supervised release for each count to run concurrently. Brown now appeals
his sentence for procedural and substantive reasonableness.
First, Brown argues that the district court procedurally erred when it
imposed a two-level enhancement pursuant to U.S.S.G. § 3C1.1 for
obstruction of justice. At sentencing, the district court found that Brown
repeatedly told his mother to let court or law enforcement authorities know
that she had hidden the firearms in the woods and that the firearms did not
belong to him. The district court reasonably inferred that Brown was
attempting to suborn perjury from his mother, as he told his mother to appeal
to an authority figure to establish a defense against his charges. See § 3C1.1;
United States v. Ramos-Delgado, 763 F.3d 398, 400 (5th Cir. 2014). The
finding of obstruction is particularly plausible in light of Brown’s suggestion
to his mother that his charges would then be dropped, he would receive a
mental health evaluation and treatment, and he would be able to see and raise
his son. See United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011).
Accordingly, Brown has failed to show that the district court clearly erred in
applying the § 3C1.1 enhancement. See United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008); United States v. Juarez-Duarte, 513 F.3d
204, 208 (5th Cir. 2008).
Next, Brown argues that the district court abused its discretion when
it imposed an upward variance. The district court stated that it considered
the 18 U.S.C. § 3553(a) factors, and the record reflects the same. The record
also does not show that the district court failed to account for a factor that
should have received significant weight, gave significant weight to an
irrelevant or improper factor, or committed a clear error of judgment in
balancing the § 3553(a) factors. See United States v. Smith, 440 F.3d 704, 708
(5th Cir. 2006). The district court did not abuse its discretion by considering
Brown’s prior unadjudicated arrests, which were supported by sufficient
evidence to corroborate their reliability, and there is no indication that it
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No. 20-40481
considered Brown’s bare arrest record. See United States v. Harris, 702 F.3d
226, 230-31 (5th Cir. 2012); United States v. Johnson, 648 F.3d 273, 277-78
(5th Cir. 2011); see also United States v. Windless, 719 F.3d 415, 420 (5th Cir.
2013). Moreover, the record reveals that the district court did not base the
sentence solely on Brown’s arrests, nor did it give significant weight to
Brown’s arrest record. Ultimately, Brown’s argument amounts to no more
than a request for this court to reweigh the statutory sentencing factors,
which we will not do. See United States v. Hernandez, 876 F.3d 161, 166 (5th
Cir. 2017). Under the totality of circumstances, including the significant
deference that is given to the district court’s consideration of the § 3553(a)
factors, the extent of the variance, and the district court’s reasons for its
sentencing decision, the sentence was reasonable and was not an abuse of
discretion. See United States v. Fraga, 704 F.3d 432, 440 (5th Cir. 2013);
Hernandez, 876 F.3d at 166; United States v. Diehl, 775 F.3d 714, 724 (5th Cir.
2015).
The judgment of the district court is AFFIRMED.
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