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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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