United States v. Johnny W. Brown , 51 F. App'x 191 ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-2961
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Johnny Wayne Brown, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: November 13, 2002
Filed: November 19, 2002
___________
Before LOKEN, BYE, and RILEY, Circuit Judges.
___________
PER CURIAM.
Johnny Wayne Brown (Brown) pled guilty to bank robbery, in violation of 18
U.S.C. § 2113(a). At sentencing, Brown’s counsel requested a sentence at the bottom
of the applicable Guidelines range, and Brown requested leniency during a lengthy
allocution. The district court1 sentenced Brown at the bottom of the Guidelines range
to 151 months imprisonment. It also imposed 3 years of supervised release, a $2,000
fine, and $2,180 in restitution. On appeal, Brown argues the district court mistakenly
believed it lacked the power to depart downward. He also suggests the district court
1
The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas.
was not required to apply the career-offender enhancement because he expressed
remorse for his previous crimes and did not use a weapon during the instant offense.
We do not view the record as indicating the district court was unaware of its
general authority to depart. It was simply not clear Brown was requesting a
downward departure. Cf. United States v. Riza, 267 F.3d 757, 759-60 (8th Cir. 2001)
(district court is presumed to be aware of scope of its ability to depart downward;
declining to interpret district court’s “cryptic remarks” as misconstruing departure
authority). Brown offered no basis for a downward departure. See United States v.
VanHouten, 307 F.3d 693, 697 (8th Cir. 2002) (even assuming the district court had
been unaware of its ability to depart downward, the failure to do so was not error
because the defendant did not show circumstances warranting a departure). We also
reject Brown’s suggestion that application of the career-offender enhancement was
discretionary. See U.S.S.G. § 4B1.1; Stinson v. United States, 508 U.S. 36, 42
(1993).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-2-