United States v. Deandre Brown ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 4 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10515
18-10082
Plaintiff-Appellee,
D.C. No.
v. 2:09-cr-00533-JAM-1
DEANDRE LORNELL BROWN,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted January 8, 2020
San Francisco, California
Before: W. FLETCHER and FRIEDLAND, Circuit Judges, and HILLMAN,**
District Judge.
Defendant-Appellant Deandre Lornell Brown appeals from the district
court’s imposition of a 360-month sentence, two computer-related special
conditions of supervised release, and restitution awards to two victims following
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Timothy Hillman, United States District Judge for the
District of Massachusetts, sitting by designation.
his convictions for conspiracy to commit sex trafficking of children or by force,
fraud, and coercion; sex trafficking of children or by force, fraud, and coercion;
and participating in a sex trafficking venture. For the following reasons, we
affirm.
First, Brown argues that his 360-month sentence is procedurally and
substantively unreasonable. He contends that the district court impermissibly
treated Judge Damrell’s original sentence and the guideline range as presumptively
reasonable.1 The record belies this characterization. Although Judge Mendez
reached the same conclusions as Judge Damrell in many respects, he did so based
on his own review of the evidence and the § 3553(a) factors, not any reliance on
Judge Damrell’s opinion as dispositive. Similarly, although Judge Mendez
rendered a sentence within the guideline range, he did not treat that range as
dispositive. To the contrary, Judge Mendez considered “each and every” § 3553(a)
factor in depth before concluding that a 360-month sentence was appropriate.
Brown also asserts that the district court failed to adequately explain its
reasons for imposing a 360-month sentence. The record belies this contention as
well. As noted above, Judge Mendez considered the § 3553(a) factors in depth
before rendering a sentence. In particular, he acknowledged the mitigating
1
The parties dispute whether we should review these aspects of the
sentencing for abuse of discretion or plain error. We need not decide which one
controls because Brown’s challenges fail under either standard.
2
evidence introduced by Brown, including his troubled childhood, his limited
criminal history, and the need to avoid unwarranted sentence disparities. Judge
Mendez determined, however, that while this evidence “might, under certain
circumstances, warrant a variance,” the “horrific” nature and circumstances of the
offense compelled a sentence of 360 months here. Given this discussion, we find
that the district court adequately explained its reasons for imposing a 360-month
sentence.
Next, Brown argues that the district court plainly erred2 in imposing two
computer-related special conditions of supervised release. Special Condition 6
prohibits Brown from possessing or using “a computer or any device that has
access to any ‘on-line computer service’ unless approved by the probation officer.”
Special Condition 8 provides for a probation officer to monitor Brown’s computer
use. Brown contends that the district court erred both procedurally and
substantively. We decline to reverse, but we do adopt a narrowing construction of
Special Condition 8.
We find no plain error in the imposition of Special Condition 6.
Procedurally, Brown cites our requirement that, when conditions of supervised
release implicate a “particularly significant liberty interest,” district courts must
2
Brown did not object to imposition of these conditions during his
resentencing hearing. We thus review for plain error. See Puckett v. United States,
556 U.S. 129, 135 (2009).
3
make specific on-the-record findings supporting the conditions. See United States
v. Wolf Child, 699 F.3d 1082, 1090 (9th Cir. 2012). Because we have not held that
a complete ban on internet use implicates such an interest, any error was not “clear
or obvious” procedural error. See United States v. Gonzalez Becerra, 784 F.3d
514, 518 (9th Cir. 2015) (quoting United States v. De La Fuente, 353 F.3d 766,
769 (9th Cir. 2003)). Substantively, Brown argues that these supervised release
conditions are not reasonably related to his crime of conviction. Here, too, any
error was not plain. We have approved similar bans where use of the internet was
integral to the crime of conviction and “the offenses at issue involved child
pornography or sexual abuse of minors.” See United States v. LaCoste, 821 F.3d
1187, 1191 (9th Cir. 2016); see also United States v. Goddard, 537 F.3d 1087,
1091 (9th Cir. 2008); United States v. Antelope, 395 F.3d 1128, 1142 (9th Cir.
2005).
As to Special Condition 8, the Government has asked us to construe the
condition to apply only to monitoring of Brown’s use of the internet. The
Government argues that, in context, including in light of the wording of Special
Condition 6, it is clear this is what the district court meant. We accept this
construction and thus hold that Special Condition 8 cannot be applied as to
Brown’s non-internet-related computer activities. A remand is unnecessary given
4
that the condition is susceptible to this limiting interpretation. See United States v.
Quinzon, 643 F.3d 1266, 1272-75 (9th Cir. 2011).
Finally, Brown argues that the district erred in awarding restitution to A.A.
and Q.M. We find no error. Although A.A. and Q.M. did not specifically request
mental health counseling, each victim submitted a detailed impact statement
explaining the psychological harm she had experienced as a result of Brown’s
crimes.3 Given this evidence, the district court appropriately determined that Q.M.
and A.A. were entitled to restitution for “the costs of necessary medical and related
professional services . . . relating to . . . psychiatric, and psychological care,” 18
U.S.C. § 3663A, and the amounts awarded were quite modest.
AFFIRMED.
3
We reject Brown’s argument that the district court plainly erred in
considering Q.M.’s impact statement, which was submitted in connection with the
original sentencing hearing and not updated for the resentencing hearing, when it
awarded restitution.
5