United States v. Brown

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 21, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 06-1448
v. (D . of Colo.)
D U N D EE R EO BR OWN , (D.C. No. 06-CR-28-W YD)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **
Dundee Reo Brown pleaded guilty to one count of making a false statement
in a passport application, in violation of 18 U.S.C. § 1542. He was sentenced to
one-year and one-day imprisonment to run consecutively with sentences that he
was already serving for convictions in Colorado state court. Brown’s appellate
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
counsel filed an Anders 1 brief and moves to withdraw. In her brief, counsel is
unable to identify any non-frivolous claims for appeal. W e also fail to identify
any legitimate legal claims and AFFIRM the district court sentence.
On appeal, Brown pro se seeks to have his sentence either reduced or
expunged based on two grounds. First, he argues that his five-year state parole
and three-year federal probation are running concurrently so his federal and state
sentences should run concurrently as w ell. Second, Brown contends that his
federal sentence should be expunged because he claims notice of the federal
warrant for his arrest in the present crime was provided to his state parole board.
Brown suggests his parole was deferred one year based on the warrant so that he
was punished for the present federal crime by the state parole hearing. He argues
the federal warrant should not have been a consideration in his state parole
hearing as he is innocent until proven guilty. 2
W e review sentences imposed post-Booker for reasonableness. United
States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). “[A] sentence that is
1
Anders v. California, 386 U.S. 738 (1967).
2
Brown suggests a third argument. He argues that he was transported to
federal custody pending the resolution of the passport violation charged in this
case and should receive credit on his federal sentence for that time. But it
appears this claim is part and parcel of the first. If w e find the district court
judgment of a consecutive sentence was appropriate, Brown’s time in federal
custody applied only against his state court sentence; therefore, we do not have
discretion to give Brown credit for it against his federal sentence. If he is arguing
for good time credit from the B ureau of Prisons, it is in its discretion and not ours
to award Brown any credit.
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properly calculated under the [United States Sentencing] Guidelines [USSG] is
entitled to a rebuttable presumption of reasonableness.” Id. at 1054. “The
defendant may rebut this presumption by demonstrating that the sentence is
unreasonable in light of the other sentencing factors laid out in [18 U.S.C.]
§ 3553(a).” Id. at 1055.
Brown does not dispute that his sentence was properly calculated under the
USSG. He was sentenced within the range set out by the Guidelines, so his
sentence is presumptively reasonable. And even absent the presumption, the
sentence of one year and a day is reasonable.
The district court w as also well within its discretion to sentence Brown
consecutively rather than concurrently. United States v. Rodriguez-Q uintanilla,
442 F.3d 1254, 1256 (10th Cir. 2006). The district court reviewed the pre-
sentence report, listened to Brown’s request for a concurrent rather than
consecutive sentence, and considered the factors set forth in § 3553(a) before
setting forth what it considered a reasonable sentence. The district court then
sentenced Brown to one day beyond one year so he could be eligible for good-
time credits and earlier release. Brown offers no logic or legal support for his
contention that the imprisonment period must also run concurrent to his state
conviction simply because his federal probation runs concurrent with his state
parole.
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As for his contention that the state parole board deferred Brown’s parole
one year based upon the federal warrant in the present case, the present appeal of
his federal conviction is not the appropriate forum to seek a remedy. Brown must
seek relief with the state parole board itself, engaging in its administrative and
appellate procedures to air his grievance regarding state parole board decisions.
After a careful review of the record, we GRANT counsel’s request to
withdraw and AFFIRM the sentence.
Entered for the Court
Timothy M . Tymkovich
Circuit Judge
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