United States v. Brown

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4940
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THOMAS MONTRIL BROWN, a/k/a Sparks,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:05-cr-00770-TLW)
Submitted: March 21, 2007 Decided: April 12, 2007
Before WILLIAMS, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, Columbia, South Carolina, Alfred William Walker Bethea,
Jr., Assistant United States Attorney, Florence, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Montril Brown appeals his convictions and 1680-
month sentence for carjacking, in violation of 18 U.S.C. § 2119(1)
(2000), robbery, in violation of 18 U.S.C. § 1951(a) (2000),
kidnapping, in violation of 18 U.S.C. § 1201 (2000), and related
firearm offenses, in violation of 18 U.S.C. § 922(g) (2000), and 18
U.S.C. § 924(c) (2000). Brown’s attorney filed a brief in
accordance with Anders v. California, 386 U.S. 739 (1967),
certifying that there are no meritorious grounds for appeal, but
questioning whether there was sufficient evidence to convict Brown
and whether his sentence was reasonable. Brown filed a pro se
supplemental brief. The Government elected not to file a reply
brief. Finding no reversible error, we affirm.
Brown argues the district court erred in denying his
motions for judgment of acquittal based on insufficiency of the
evidence. Essentially, Brown contends he was not present during
the March 18 and March 21, 2005 crimes; however, all witnesses
testified as to Brown’s involvement on those days. The jury simply
found that Brown’s denial of involvement was incredible and the
other witnesses were credible. A review of the record indicates
there was ample evidence to convict Brown of all twelve counts.
Next, Brown suggests that the district court committed
reversible error by imposing an unreasonable sentence. Brown
contends that his sentence was unreasonable because the presentence
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report improperly recommended sentencing enhancements based upon
obstruction of justice for perjury and because victim Terry Brown
sustained injury. Brown also contends that his sentence was flawed
because he should not have been convicted on Counts 7 and 8, and
that he should not have received a ten-year penalty for Count 2.
Contrary to Brown’s assertions, the district court properly
calculated Brown’s advisory guideline range.
Brown’s sentence is reasonable because he was sentenced
within the advisory guidelines range. After United States v.
Booker, 543 U.S. 220 (2005), a district court is no longer bound by
the range prescribed by the sentencing guidelines. However, in
imposing a sentence post-Booker, courts still must calculate the
applicable guideline range after making the appropriate findings of
fact and consider the range in conjunction with other relevant
factors under the guidelines and § 3553(a). United States v.
Moreland, 437 F.3d 424, 432 (4th Cir.), cert. denied, 126 S. Ct.
2054 (2006). This court will affirm a post-Booker sentence if it
“is within the statutorily prescribed range and is reasonable.”
Id. at 433 (internal quotation marks and citation omitted). “[A]
sentence within the proper advisory Guidelines range is
presumptively reasonable.” United States v. Johnson, 445 F.3d 339,
341 (4th Cir. 2006).
Here, the district court sentenced Brown post-Booker and
appropriately treated the guidelines as advisory. The court added
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two levels pursuant to USSG § 2B3.1(b)(3)(A) because Brown
obstructed justice by testifying falsely at trial as to his
involvement in the crimes on March 21 and April 6, 2005. Brown’s
testimony was directly contradicted by all witnesses at trial, who
stated Brown was present on both dates and participated in the
offenses. The district court found that Brown willfully intended
to provide false testimony about a material matter. The district
court did not err in applying this enhancement.
Brown also argues that the court improperly enhanced his
sentence pursuant to USSG § 2A4.1(b)(2)(B) for injury to Terry
Brown, the victim of the kidnapping on April 6, 2005, arguing that
he did not personally cause the injury. The district court found
that Brown was a participant in the kidnapping and carjacking, both
violent offenses, and could be held responsible for the foreseeable
acts of his co-conspirators in furtherance of the offenses. The
district court did not err in applying the enhancement.
Next, Brown contends that he should not have been
convicted on Counts 7 and 8 because the carjacking and use of a
firearm associated with the carjacking were committed solely by a
co-defendant and were not reasonably attributable to him. The
district court determined that it was clearly foreseeable that a
co-defendant might commit a separate or additional crime to enable
confederates to get away or to avoid detection. Indeed, the co-
defendant testified that he stole a minivan to enable his
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accomplices, including Brown, to flee from the scene of a robbery
without being followed. The district court did not err when it
overruled Brown’s objection, explaining that the jury properly
found that the carjacking and the firearm count were attributable
to Brown.
Finally, Brown objected to the portion of the presentence
report that assigned a sentence of not less than ten years for the
§ 924(c) count because the firearm was discharged. This particular
ten-year sentence is mandated by statute. The court found by a
preponderance of the evidence that on March 18, 2005, shots were
fired into the air by Brown’s co-defendants to scare the victims of
a carjacking as they ran away, and the shots were fired as a result
of the conduct committed in Counts 1 and 2. Thus, it was
reasonable for the court to find that Brown aided and abetted in
the discharge of a firearm.
The court sentenced Brown after considering and examining
the sentencing guidelines and the § 3553(a) factors, as instructed
by Booker. Brown’s sentence for each count was within the
appropriate guideline range and within the confines of the
statutory minimum and maximum. Neither Brown nor the record
suggests any information so compelling as to rebut the presumption
that a sentence within the properly calculated guideline range is
reasonable.
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We have reviewed Brown’s pro se supplemental brief and
find the issues he raises meritless. In accordance with Anders, we
have reviewed the record in this case and have found no meritorious
issues for appeal. We therefore affirm Brown’s convictions and
sentence. This court requires that counsel inform Brown, in
writing, of the right to petition the Supreme Court of the United
States for further review. If Brown requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that a
copy thereof was served on Brown.
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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