United States v. Brown

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5101
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BRIAN O’KEITH BROWN, a/k/a Bo,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:07-cr-00030-NCT-1)
Submitted: September 29, 2009 Decided: October 2, 2009
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James B. Craven III, Durham, North Carolina, for Appellant.
Anna Mills Wagoner, United States Attorney, Sandra J. Hairston,
Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian O’Keith Brown pled guilty to possession with
intent to distribute cocaine base, 21 U.S.C. § 841(a)(1) (2006),
and possession of a firearm during a drug trafficking offense,
18 U.S.C. § 924(c)(1)(A)(i) (2006). He previously appealed his
230-month sentence, and we remanded his case for resentencing in
light of Kimbrough v. United States, 552 U.S. 85 (2007). On
remand, the district court reduced Brown’s sentence to 206
months’ imprisonment, applying Amendment 706, which amended the
sentencing guideline for crack cocaine offenses. Brown appeals
his sentence, arguing that his sentence is unreasonable because
the district court failed to consider a variant sentence under
Kimbrough. Finding no reversible error, we affirm.
We find no merit to Brown’s argument that the district
court failed to consider a variant sentence under Kimbrough.
Defense counsel argued for a sentence lower than the guidelines
range based on the cocaine/cocaine base disparity. The court
concluded, however, in considering the § 3553(a) factors,
particularly Brown’s extensive criminal background, a sentence
within the guidelines range, was appropriate.
We review a criminal sentence for reasonableness,
using the abuse of discretion standard. Gall v. United States,
552 U.S. 38, , 128 S. Ct. 586, 594-97 (2007). We conclude
that Brown’s sentence is both procedurally and substantively
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reasonable. The district court properly calculated Brown’s
Guidelines range, treated the Guidelines as advisory, and
considered the applicable 18 U.S.C. § 3553(a) (2006) factors.
See United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007);
see also Rita v. United States, 551 U.S. 338, 352-356 (2007)
(upholding application of rebuttable presumption of
reasonableness of within-guidelines sentence). Furthermore, the
court’s sentence was based on its “individualized assessment” of
the facts of the case. United States v. Carter, 564 F.3d 325,
328 (4th Cir. 2009).
Accordingly, we affirm Brown’s sentence. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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