United States v. Anthony Brown

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4092
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTHONY CHARLES BROWN,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Jackson L. Kiser, Senior
District Judge. (4:99-cr-70105-jlk-1)
Submitted: June 21, 2011 Decided: July 13, 2011
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Fay F. Spence, First
Assistant Federal Public Defender, Roanoke, Virginia, for
Appellant. Julia C. Dudley, United States Attorney, Craig J.
Jacobsen, Assistant United States Attorney, Roanoke, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On July 27, 1999, Anthony Charles Brown was charged in
state court in Danville, Virginia with transporting one ounce or
more of cocaine into Virginia with the intent to distribute.
After his release on $50,000 bond, Brown failed to appear for a
hearing on September 14, 1999, and a warrant was issued for his
arrest. On November 18, 1999, a federal grand jury sitting in
Roanoke, Virginia, indicted Brown on one count of knowingly and
intentionally possessing with intent to distribute more than
five grams of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1) (2006). An arrest warrant for Brown was issued the
next day, and remained in effect until Brown was apprehended in
New York over eight years later, on March 5, 2008.
Following Brown’s apprehension, the federal grand jury
issued a superseding indictment charging him with knowingly and
intentionally possessing with intent to distribute more than
fifty grams of cocaine base, in violation of 21 U.S.C.A.
§ 841(a)(1) and (b)(1)(A) (West 1999 & Supp. 2011). Brown moved
to dismiss the superseding indictment, arguing that it violated
the five-year federal statute of limitations, see 18 U.S.C.
§ 3282(a) (2006). Brown also moved to suppress evidence found
in a 1999 search of his bags at a train station. The district
court denied both motions. Brown pleaded guilty to Count One in
the superseding indictment without the benefit of a plea
2
agreement. At sentencing, the district court declined to grant
Brown a three-level reduction for acceptance of responsibility
and added a two-level increase for obstruction of justice,
sentencing Brown to 188 months’ imprisonment. Brown noted a
timely appeal.
On appeal, Brown raises four arguments. First, he
agues that the district court erred in denying his motion to
dismiss the indictment as time-barred. This court reviews de
novo a motion to dismiss an indictment as time-barred when the
motion is based upon a question of law, rather than on the
existence of the facts contained in the indictment. United
States v. United Med. & Surgical Supply Corp., 989 F.2d 1390,
1398 (4th Cir. 1993).
The statute of limitations for non-capital crimes is
five years. 18 U.S.C. § 3282(a). Brown’s offense occurred in
1999, and the superseding indictment against him was filed in
2008, more than five years after the offense. However, on
remand, the district court determined that after the arrest
warrant was issued, Brown fled with the intent to avoid arrest. *
Brown’s fugitive status thus tolled the limitations period under
*
We previously remanded the appeal to the district court
for the limited purposes of resolving this factual issue.
United States v. Brown, 374 F. App’x 450 (4th Cir. 2010) (No.
09-4092).
3
18 U.S.C. § 3290 (2006), which provides, “[n]o statute of
limitations shall extend to any person fleeing from justice.”
Accordingly, Brown’s first argument is without merit.
Next, Brown argues that the district court erred in
denying Brown’s motion to suppress. We review the factual
findings underlying the denial of a motion to suppress for clear
error and the court’s legal conclusions de novo. United
States v. Branch, 537 F.3d 328, 337 (4th Cir. 2008). The
evidence is construed in the light most favorable to the
prevailing party below. United States v. Foster, 634 F.3d 243,
246 (4th Cir. 2011).
The Fourth Amendment does not prohibit all searches
and seizures, merely those found to be unreasonable. Florida v.
Jimeno, 500 U.S. 248, 250 (1991). Although a warrantless search
generally is “per se unreasonable,” one of the established
exceptions to this rule is a “search that is conducted pursuant
to consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219
(1973). In determining the scope of the consent, the court uses
an objective reasonableness standard. Jimeno, 500 U.S. at 251.
In other words, the court considers what “the typical reasonable
person [would] have understood by the exchange between the
officer and the suspect.” Id. “The scope of a search is
generally defined by its expressed object.” Id. A suspect may
4
also impose limits on the scope of the search to which he
consents. Id.
Here, a reasonable person would have understood that
Brown consented to the search of his bags. Accordingly, the
district court did not clearly err in so determining.
We also reject Brown’s remaining two grounds for
appeal. Brown argues that the court erred in both adopting the
presentence report’s recommendation denying a three-level
reduction for acceptance of responsibility and in imposing a
two-level enhancement for obstruction of justice. This court
reviews the district court’s decision for clear error. United
States v. Kise, 369 F.3d 766, 771 (4th Cir. 2004) (acceptance of
responsibility); United States v. Kiulin, 360 F.3d 456, 460 (4th
Cir. 2004) (obstruction of justice). Given Brown’s fugitive
status and inconsistent testimony, the district court did not
clearly err in denying Brown the acceptance of responsibility
reduction or in imposing a two-level enhancement for obstruction
of justice.
Accordingly, we affirm the judgment of the district
court. 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
5