UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4903
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHRISTOPHER LARONN BROWN,
Defendant - Appellant.
No. 04-7191
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHRISTOPHER LARONN BROWN,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-95)
Submitted: September 14, 2005 Decided: October 27, 2005
Before WILKINSON, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Robert A. J. Lang, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
In these consolidated appeals, Christopher Laronn Brown
challenges his conviction and sentence. A jury found Brown guilty
of one count of possession of a firearm by a convicted felon in
violation of 18 U.S.C. §§ 922(g)(1), 924(e) (2000). Brown
challenges the sufficiency of the evidence and the district court’s
decision to permit evidence of Brown’s prior possession of the same
firearm at issue in the conviction. Brown also challenges his
sentence under the rules announced in United States v. Booker, 543
U.S. , 125 S. Ct. 738 (2005). Brown also filed a pro se
supplemental brief in Appeal No. 04-7191, in which he filed a pro
se notice of appeal from a district court order denying his pro se
motion to have his counsel withdraw. While we affirm the
conviction, we vacate the sentence and remand for resentencing.
Brown contends the evidence was insufficient to support
his conviction because both main witnesses were unreliable
witnesses having given different versions of the events to other
law enforcement authorities and prosecutors. When reviewing a
sufficiency-of-the-evidence claim, the verdict will be sustained
“if there is substantial evidence, taking the view most favorable
to the Government, to support it.” Glasser v. United States, 315
U.S. 60, 80 (1942). “[S]ubstantial evidence is evidence that a
reasonable finder of fact could accept as adequate and sufficient
to support a conclusion of a defendant’s guilt beyond a reasonable
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doubt.” United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)
(en banc). In resolving issues of substantial evidence, this court
does not weigh evidence or review witness credibility. The court
assumes the jury resolved all contradictions in testimony in favor
of the Government. United States v. Romer, 148 F.3d 359, 364 (4th
Cir. 1998). In addition, on review, the evidence must be viewed in
a way as to be most favorable to the Government.
The elements of a violation of § 922(g)(1) are that:
“(1) the defendant previously had been convicted of a crime
punishable by a term of imprisonment exceeding one year; (2) the
defendant knowingly possessed . . . the firearm; and (3) the
possession was in or affecting interstate commerce, because the
firearm had travelled [sic] in interstate or foreign commerce.”
United States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en
banc).
Brown only challenges the element concerning knowing
possession. We find the evidence is more than substantial to show
Brown possessed the firearm. Witnesses testified to seeing Brown
with the gun on the date in question. Any contradictions in the
testimony are assumed to be resolved in favor of the Government.
Moreover, the evidence is reviewed most favorably toward the
Government. Brown’s challenge to the credibility of the witnesses
is without merit.
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Brown contends the district court erred admitting
evidence that he was observed shooting the same firearm a week
before the incident in question. Brown was informed prior to trial
that the Government intended to present this evidence. Because
Brown did not object, review is for plain error. In order to
demonstrate plain error, Brown must show an error occurred, the
error was plain, and the error affected his substantial rights.
United States v. Olano, 507 U.S. 725, 732 (1993). Correction of
the error remains within the court’s discretion, which the court
“should not exercise . . . unless the error ‘seriously affect[s]
the fairness, integrity or public reputation of judicial
proceedings.’” Id. at 732 (second alteration in original) (quoting
United States v. Young, 470 U.S. 1, 15 (1985) (internal quotation
marks omitted)).
Under Rule 404(b) of the Federal Rules of Evidence,
evidence of other bad acts may be admissible if it is “probative of
a material issue other than character.” Huddleston v. United
States, 485 U.S. 681, 686 (1988). Such evidence is properly
admitted when it is “(1) relevant to an issue other than character,
(2) necessary, and (3) reliable.” United States v. Mark, 943 F.2d
444, 447 (4th Cir. 1991) (internal citations and quotations
omitted). In addition, the evidence must be more probative than
prejudicial. United States v. Queen, 132 F.3d 991, 997 (4th Cir.
1997). Review of a district court’s determination of the
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admissibility of evidence under Rule 404(b) is for abuse of
discretion. Queen, 132 F.3d at 995. A district court will not be
found to have abused its discretion unless its decision to admit
evidence under Rule 404(b) was arbitrary or irrational. United
States v. Haney, 914 F.2d 602, 607 (4th Cir. 1990). Evidentiary
rulings are also subject to review for harmless error under Federal
Rule of Criminal Procedure 52, and will be found harmless if the
reviewing court can conclude “without stripping the erroneous
action from the whole, that the judgment was not substantially
swayed by the error.” United States v. Nyman, 649 F.2d 208, 211-12
(4th Cir. 1980) (quoting Kotteakos v. United States, 328 U.S. 750,
765 (1946)).
We find the evidence was relevant to the issue of whether
Brown possessed the gun in question. The evidence was reliable and
necessary to prove the contested issue in this trial: whether Brown
possessed the firearm. With respect to the fourth factor, under
Rule 403, “[p]rejudice . . . refers to evidence that has an ‘undue
tendency to suggest decision on an improper basis, commonly, though
not necessarily, an emotional one.’” Queen, 132 F.3d at 994
(quoting Fed. R. Evid. 403 advisory committee’s note); see United
States v. Van Metre, 150 F.3d 339, 351 (4th Cir. 1998)
(interpreting Rule 403 to require exclusion of evidence only in
those instances where the trial judge believes “‘that there is a
genuine risk that the emotions of the jury will be excited to
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irrational behavior, and that this risk is disproportionate to the
probative value of the offered evidence’”) (quoting United
States v. Powers, 59 F.3d 1460, 1467 (4th Cir. 1995)). Here, the
probative value of the evidence was high because it went to a
highly contested issue at trial. Given the high probative value,
we find evidence of prior possession and use of the firearm did not
substantially outweigh the probative value. Even if it was error
to admit the evidence, given the substantial evidence supporting
the conviction, the error was harmless.
Brown challenges his sentence under the rules announced
in Booker. In the Presentence Investigation Report (“PSR”), Brown
was assigned a base offense level of 20 because he committed the
offense subsequent to sustaining one felony conviction for a crime
of violence. See U.S. Sentencing Guidelines Manual
§ 2K2.1(a)(4)(A) (2003). Four points were added because Brown used
the gun in connection with another felony offense, felony discharge
of a weapon into occupied property and felony assault with a deadly
weapon with intent to kill inflicting serious injury. See USSG
§ 2K2.1(b)(5). Another two points were added because Brown
obstructed justice by trying to persuade one witness not to testify
against him and another to discard the gun and the magazine. See
USSG § 3C1.1. The PSR further noted Brown was a armed career
criminal pursuant to § 924(e) and USSG § 4B1.4(b)(3)(A), having
three prior convictions for felony robbery with a dangerous weapon.
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Accordingly, his offense level was 34 because the firearm was used
in connection with a crime of violence.
The statutory sentence for an armed career criminal with
a § 924(g) conviction is 15 years’ to life imprisonment. Because
Brown was in criminal history category VI as a result of being an
armed career criminal who used the firearm in connection with a
crime of violence, he was subjected to a guideline sentence of 262
to 327 months’ imprisonment. See USSG § 4B1.4(c)(2).
Brown filed objections in which he claimed the offense
level was improper under Blakely v. Washington, 542 U.S. 296
(2004). Counsel claimed the base offense level should be 14
instead of 20, because the prior felony conviction was not found by
the jury or admitted by Brown. Counsel also argued the offense
level should not be enhanced for the alleged conduct surrounding
the possession. In addition, counsel claimed that the enhancement
for being an armed career criminal should not apply, but if it
does, it should only be 33 instead of 34. An offense level of 33
does not require a finding that the firearm possession was in
connection with a crime of violence. See USSG § 4B1.4(b)(3)(B).
Counsel also claimed no criminal history points should be applied,
nor should he be placed in criminal history category VI for being
an armed career criminal. The district court denied counsel’s
objections and sentenced Brown to 288 months’ imprisonment.
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Because Brown preserved his Sixth Amendment claim by
objecting to his armed career criminal classification based upon
Blakely, this court’s review is de novo. See United States v.
Mackins, 315 F.3d 399, 405 (4th Cir. 2003) (“If a defendant has
made a timely and sufficient Apprendi[1] sentencing objection in
the trial court, and so preserved his objection, we review de
novo.”). When a defendant preserves a Sixth Amendment error, this
court “must reverse unless [it] find[s] this constitutional error
harmless beyond a reasonable doubt, with the Government bearing the
burden of proving harmlessness.” Id. (citations omitted); see
United States v. White, 405 F.3d 208, 223 (4th Cir. 2005)
(discussing difference in burden of proving that error affected
substantial rights under harmless error standard in Fed. R. App. P.
52(a), and plain error standard in Fed. R. App. P. 52(b)).
In Booker, the Supreme Court held that Blakely applied to
the federal sentencing guidelines and that the mandatory manner in
which the guidelines required courts to impose sentencing
enhancements based on facts found by the court by a preponderance
of the evidence violated the Sixth Amendment. Thus, when a
defendant pleads guilty and is sentenced under the mandatory
guidelines scheme, “[a]ny fact (other than a prior conviction)
which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury
1
Apprendi v. New Jersey, 530 U.S. 466 (2000).
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verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.” Booker, 543 U.S. at , 125 S. Ct. at
756.
In the instant appeal, the district court engaged in
judicial fact finding by imposing an offense level of 34 based on
the finding that Brown’s possession of a firearm was used in
connection with a crime of violence. Likewise, the criminal
history category was adjusted based upon the same finding. In
finding Brown guilty of firearm possession, the jury did not have
to find that his possession was in connection with a crime of
violence. Nor did Brown admit to such a allegation.2
Because the district court engaged in judicial fact-
finding to determine Brown’s offense level, criminal history
category and the resulting guideline range was imposed in a
mandatory manner, there was a Sixth Amendment violation under
Booker. On remand, the court must calculate the appropriate
guideline range, consider the range in conjunction with other
relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2005), and impose a sentence. If a court
imposes a sentence outside the guideline range, the district court
2
Had Brown been sentenced with an offense level of 33, which
depends only on the fact of prior convictions, and with a criminal
history category of V, his guideline range would have been 210 to
262 months’ imprisonment, or less than the sentence he received.
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must state its reasons for doing so. United States v. Hughes, 401
F.3d 540, 546 (4th Cir. 2005).3 4
Accordingly, we affirm the conviction and vacate the
sentence and remand for resentencing in light of Booker.5 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 IN PART, VACATED
IN PART, AND REMANDED
3
Brown also challenges the use of the fact of prior
convictions to find he is an armed career criminal under § 924(e),
arguing that Almendarez-Torres v. United States, 523 U.S. 224
(1998), must be overturned. The use of the fact of a prior
conviction to determine a sentence does not violate the Sixth
Amendment. See United States v. Cheek, 415 F.3d 349, 352-53 (4th
Cir. 2005).
4
Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Brown’s sentencing.
5
We have considered the issues raised in Brown’s informal
brief filed in No. 04-7191, and find them to be without merit.
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