United States v. Robert K. Brown , 206 F. App'x 640 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1315
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the District
v. * of Nebraska.
*
Robert K. Brown, * [UNPUBLISHED]
*
Appellant. *
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Submitted: September 26, 2006
Filed: November 22, 2006
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Before LOKEN, Chief Judge, BEAM and GRUENDER, Circuit Judges.
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PER CURIAM.
Robert Brown entered a plea of guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). In this appeal, Brown alleges that the
district court erred by not making specific factual findings in response to his
objections to the presentence investigation report (PSR). Brown objected to the PSR's
calculation of an enhancement, pursuant to United States Sentencing Guidelines
Manual § 2K2.1(b)(4), that he possessed a stolen weapon. Brown also argues there
was insufficient evidence to support the prior convictions listed in the PSR.
The government concedes that the district did not make specific factual findings
as set forth in Rule 32(i) with regard to Brown's 2K2.1(b)(4) objection. See Fed. R.
Crim. P. 32(i)(3)(B) (district court must rule on the dispute or find that a ruling is
unnecessary, when defendant objects to portions of the PSR). But the government
argues, since Brown only made legal objections to the PSR (Brown objected by
arguing that the enhancement was barred by Blakely1 and Apprendi2 because it was
based on judge-found facts), the district court was not required to make findings
pursuant Rule 32(i).
We agree that Brown's objection was primarily legal in nature because it was
based on Blakely and Apprendi, but it did have a factual component–that the district
court, instead of a jury, was allowed to find facts supporting the enhancement. Clearly
the legal component of his objection is without merit, United States v. Booker, 543
U.S. 220 (2005). Furthermore, a review of the sentencing transcript reveals that the
district court implicitly overruled Brown's objection by applying the 2K2.1(b)(4)
enhancement.
In United States v. Moss, 138 F.3d 742 (8th Cir. 1998), the defendant argued
the district court erred by not making an express credibility finding as required by
Rule 32, when Moss objected to factual portions of the PSR. We held that it was
evident from the sentence given that the district court credited one witness's testimony
over others. Id. at 745. We stated that, "[t]hough an express credibility finding would
have been preferable, in these circumstances the District Court's assessment of witness
credibility is evident. We therefore find no violation of Rule 32." Id. Similarly, an
express ruling rejecting Brown's meritless objection would have been preferable in
this case, but a review of the record indicates that the court implicitly considered, and
rejected, Brown's Blakely and Apprendi arguments.
1
Blakely v. Washington, 542 U.S. 296 (2004).
2
Apprendi v. New Jersey, 530 U.S. 466 (2000).
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Brown's second argument, that there was insufficient evidence to support the
prior convictions listed in the PSR, is without merit. Brown does not argue that any
of the convictions were constitutionally infirm. He simply argues that there was
insufficient evidence that they existed because the government did not produce
certified copies of the convictions.3
At the sentencing hearing, government counsel engaged the probation officer
in an extensive dialogue over whether those offenses actually existed. This query
included questioning the probation officer about the copies of judgments and the
computer criminal history printouts contained in the exhibits the officer had relied
upon in preparing the PSR. Defense counsel cross-examined the probation officer
regarding these issues. Accordingly, we find that there was sufficient evidence to
support the prior convictions listed in the PSR. United States v. Stobaugh, 420 F.3d
796, 802-03 (8th Cir. 2005), cert. denied, 126 S. Ct. 1093 (2006). And, by the end of
the hearing, Brown's counsel actually withdrew his objection to the sufficiency of the
evidence on this issue, thereby waiving appellate review absent plain error. United
States v. Ristine, 335 F.3d 692, 694 (8th Cir. 2003). Finding none, we affirm the
district court.
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3
At the sentencing hearing, the probation officer disclosed that he relied upon
Exhibits 1, 2, and 3 when preparing the PSR. These exhibits contained copies of
judgments from Douglas County District Court, and computerized printouts of
Brown's arrest record with the Omaha Police Department. Although the officer
testified about these exhibits, the exhibits were never offered and received by the
district court.
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