United States v. Lucas Brown ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0626n.06
No. 08-5247
FILED
UNITED STATES COURT OF APPEALS Sep 28, 2010
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
v. ) DISTRICT OF TENNESSEE
)
LUCAS L. BROWN, ) OPINION
)
Defendant-Appellant. )
BEFORE: NORRIS, MOORE and McKEAGUE, Circuit Judges.
ALAN E. NORRIS, Circuit Judge. Lucas Brown pleaded guilty to three counts of being
a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1); possession with intent to
distribute more than five grams of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B); and of knowingly possessing a firearm in furtherance of a drug trafficking offense in
violation of 18 U.S.C. § 924(c)(1)(A)(i). The presentence investigation report (“PSR”)
recommended that Brown be sentenced as a career offender under § 4B1.1 of the United States
Sentencing Guidelines because he had two prior convictions for felony drug offenses. Brown moved
for a downward departure from the career offender guideline range, arguing that the prior convictions
overstated his past criminal conduct because those offenses involved only small amounts of drugs
and resulted in probation.
After hearing Brown’s arguments in support of his position that his prior convictions
overstated his criminal history, the district court determined that the PSR properly classified Brown
as a career offender. The district court acknowledged that it had discretion to impose a sentence
outside the career offender guideline range but declined to do so in this case because it found that
Brown had not demonstrated that he could lead a “law-abiding life.” As grounds for denying
Brown’s motion, the district court observed that the career offender provision was promulgated in
part to predict the likelihood of recidivism, and–stating that such likelihood “is not all that great” in
cases where a defendant has not violated the law for a lengthy period–found that Brown had not gone
for any substantial period of his adult life without breaking the law. The district court further
observed that many of Brown’s infractions involved drugs or guns, or both.
Noting that it had considered the statutory sentencing factors required by 18 U.S.C. §3553(a),
the district court sentenced Brown to 322 months of imprisonment, the lowest end of the guidelines
range. In determining Brown’s sentence, the district court concluded that the PSR correctly
calculated the applicable guideline range as 322 to 387 months of imprisonment based upon an
adjusted offense level of 27 and a criminal history category of VI.
On appeal, Brown challenges the reasonableness his sentence. We review a sentence for
reasonableness under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007).
Reasonableness review has both a procedural and substantive component. Id. Here, Brown
challenges only the substantive reasonableness of his sentence.
In reviewing a sentence for substantive reasonableness, we normally must consider “the
totality of circumstances,” and accord ‘due deference’ to the district court’s conclusion that the
sentence imposed is warranted by the § 3553(a) factors.” United States v. Bolds, 511 F.3d 568, 581
-2-
(6th Cir. 2007) (quoting Gall). Moreover, a district court sentence that falls within a properly
calculated guideline’s range may be afforded a presumption of reasonableness. Gall, 522 U.S. at 51.
However, the statute governing criminal appeals, 18 U.S.C. § 3742(a), does not recognize
as a ground for appeal a claim that the district court abused its discretion in refusing to depart from
the applicable guideline range unless the sentencing determination “rested on [the district court’s]
mistaken belief that it lacked the legal power to grant a departure.” United States v. Ruiz, 536 U.S.
622, 627 (2002); see also United States v. Puckett, 422 F.3d 340, 344-46 (6th Cir. 2005) (noting that
denial of downward departure is not reviewable on appeal unless district court was unaware of or
did not understand its discretion to make such departure); United States v. Mapp, 311 F. App’x 738,
740 (6th Cir. 2008) (noting same, post-Gall).
In Brown’s view, the career offender guideline range should not apply because the two
predicate felony convictions over-represent the seriousness of his criminal history in that both crimes
involved only small amounts of drugs and resulted in probation. He points out that the first predicate
offense was a drug trafficking conviction involving less than one-half of a gram of crack cocaine.
Although he was sentenced to six years of imprisonment, the sentence was suspended and he was
placed on probation. The second predicate offense was a drug trafficking conviction involving forty-
two grams of marijuana. That conviction resulted in a one-year prison sentence, which was also
suspended to probation.
Although Brown attempts to characterize the issue on appeal as whether the district court
accorded too much weight to a single § 3553(a) factor in selecting a sentence that was sufficient but
not greater than necessary to comply with the purposes of the sentencing statute, the substance of his
challenge is appropriately characterized as whether the district court erred in declining to depart from
-3-
the career offender guidelines. Thus, under Ruiz, we must determine whether we have statutory
jurisdiction to consider his appeal. We conclude that we do not.
The district court correctly determined that Brown was subject to the career offender
guideline range. The record clearly demonstrates that the district court recognized its authority to
impose a sentence below the applicable guideline range but elected not to exercise that authority
based upon its finding that the circumstances of the case did not warrant doing so. We therefore lack
jurisdiction to review the district court’s denial of such departure.
The judgment is affirmed.
-4-
KAREN NELSON MOORE, Circuit Judge, dissenting. The defendant-appellant’s brief
presents the issue on appeal whether the district court’s sentence was substantively unreasonable in
its length in light of the relevant facts and 18 U.S.C. § 3553(a). This is a typical post-Booker
substantive-reasonableness question over which we have jurisdiction, completely distinct from the
departure issue addressed by the majority. See, e.g., United States v. McBride, 434 F.3d 470, 474–77
(6th Cir. 2006). Therefore, I respectfully dissent.
-5-