United States v. Brock

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4044

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

LINCOLN MONROE BROCK,

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr., Chief
District Judge. (1:03-cr-00429-JAB)

Submitted: September 26, 2007 Decided: November 5, 2007

Before NIEMEYER and TRAXLER, Circuit Judges, and WILKINS, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant. Randall Stuart Galyon, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

This case is before the court upon appeal from

resentencing in light of United States v. Booker, 543 U.S. 220

(2005). Lincoln Monroe Brock first appealed his conviction and

sentence in 2004. In an unpublished opinion, we affirmed Brock’s

convictions but remanded his case for resentencing. United States

v. Brock, 173 F. App’x 199 (4th Cir. Feb. 28, 2006) (No. 04-4712).

On remand, the district court sentenced Brock to 176 months’

imprisonment. Brock’s attorney filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), in which she maintains that there

are no meritorious issues for appeal. For the reasons set forth

below, we affirm.

In a six-count superseding indictment, a federal grand

jury charged Brock with four counts of distribution of crack

cocaine and one count of possession with intent to distribute crack

cocaine; specific drug quantities were charged in each count.1 At

Brock’s resentencing hearing, the district court adopted the

1
As to the first count, Brock was charged with distributing
1.2 grams of crack cocaine (“Count One”); the second count, 0.5
grams of crack cocaine (“Count Two”); and the third count, 1.1
grams of crack cocaine (“Count Three”), all in violation of 21
U.S.C. § 841(a)(1), (b)(1)(C) (2000). In the fourth count, Brock
was charged with distributing 13.6 grams of crack cocaine, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) (2000) (“Count
Four”). The fifth count charged Brock with possessing with intent
to distribute 6.7 grams of crack cocaine, also in violation of 21
U.S.C. § 841(a)(1), (b)(1)(B). Lastly, Brock was charged with
being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1) (2000).

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guidelines application set forth in the presentence report (“PSR”)

prepared by the probation officer.2 Brock’s total offense level,

30, coupled with a criminal history category of VI yielded a

guidelines range of 168 to 210 months’ imprisonment. USSG ch. 5,

pt. A, sentencing table (2003).

Brock did not object to the guidelines calculation, but

he argued that the court should sentence him at the low end of the

guidelines range based on the factors set forth in 18 U.S.C.A.

§ 3553(a) (West 2000 & Supp 2006). The district court sentenced

Brock to 176 months’ imprisonment on Counts One, Two, and Three

(concurrent), 176 months on Counts Four and Five, to be served

concurrently to the sentence imposed for Counts One through Three,

and 120 months on Count Six, also to be served concurrently.

2
In detailing Brock’s relevant conduct, 25 grams of crack and
6.4 grams of powder cocaine were attributed to Brock. Combined,
these narcotics converted to 501.28 kilograms of marijuana. U.S.
Sentencing Guidelines Manual § 2D1.1 cmt. n.10, drug equivalency
tables (2003) (“USSG”). The PSR also noted that police officers
seized a shotgun from Brock’s residence at the same time that they
seized 6.7 grams of crack cocaine.
Counts One through Five were grouped together pursuant to USSG
§ 3D1.2(d) (2003), and, as converted, the aggregate drug
quantity resulted in a base offense level of 28. USSG
§ 2D1.1(c)(6) (2003). Because Count Four charged the greatest
overall quantity and provided for an increased statutory mandatory
minimum, it was designated the lead count for the grouped offenses.
Count Four was then grouped with Count Six, pursuant to USSG
§ 3D1.2(c) (2003), because Brock’s possession of the firearm was a
specific offense characteristic of the narcotics distribution
offenses. Because the adjusted offense level for Count Six, 24,
was lower than that of grouped offenses, Count Four determined the
controlling guideline. USSG § 3D1.3(a) (2003). Brock’s base
offense level was then increased two levels because Brock possessed
a firearm. USSG § 2D1.1(b)(1) (2003).

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 Counsel’s Anders brief identifies no issues for our

consideration, but mentions the presumption of reasonableness

accorded to within-guidelines sentences as a possible basis for

appeal. In his pro se supplemental brief and supplements thereto,

Brock asserts that the district court erred in calculating his

adjusted offense level and determining his criminal history

category, and maintains that the district court should have

considered his argument that one of the police officers involved in

investigating his case tampered with the seized narcotics. Brock

also challenges the Government’s 21 U.S.C. § 851 (2000) information

and the resulting enhanced statutory penalty, and contends that the

Government knowingly permitted one of its witnesses to commit

perjury at Brock’s trial.

Because Brock did not raise any of his challenges to the

calculation of his guidelines range in the district court, our

review is for plain error. United States v. Hughes, 401 F.3d 540,

547 (4th Cir. 2005); United States v. Martinez, 277 F.3d 517, 524

(4th Cir. 2002). Under the plain error standard, Brock must show:

(1) there was error; (2) the error was plain; and (3) the error

affected his substantial rights. United States v. Olano, 507 U.S.

725, 732-34 (1993). When these conditions are satisfied, we may

exercise our discretion to notice the error only if it “seriously

affect[s] the fairness, integrity or public reputation of judicial

proceedings.” Id. at 736 (internal quotation marks omitted). The

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burden of showing plain error is on the defendant. United States

v. Strickland, 245 F.3d 368, 379-80 (4th Cir. 2001).

All three of Brock’s challenges to the sentencing

calculations fail. First, the probation officer properly applied

the two-level enhancement for possession of a firearm. USSG

§ 2D1.1(b)(1). The PSR explained that a firearm was seized from

Brock’s residence at the same time that 6.7 grams of crack cocaine

were seized, and Brock provided no rebuttal or refutation of this

assertion; thus, it cannot be said that the district court

committed any error, let alone plain error, in finding possession

of this firearm was a specific offense characteristic of the

narcotics offense.3

Brock next asserts that the district court improperly

applied a four-level enhancement pursuant to USSG

§ 2K2.1(a)(4)(A) (2003), possession of a firearm in connection with

another felony, because this fact was not charged in his indictment

or proven to a jury beyond a reasonable doubt. However, we need

not consider the propriety of enhancing Brock’s sentence based on

this uncharged, unproven conduct because this argument is factually

inaccurate. Although the probation officer did “apply” this

3
Moreover, contrary to Brock’s assertion, applying this
enhancement does not result in improper double-counting because
Brock’s sentence was calculated based on the narcotics offenses,
not his conviction for being a felon in possession of a firearm.
See, e.g., United States v. Pierce, 388 F.3d 1136, 1138-39 (8th
Cir. 2004) (collecting cases).

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enhancement, she did so only to calculate Brock’s offense level for

the felon-in-possession charge in order to assess which of the

grouped offenses yielded the higher offense level. Because Count

Four had a higher adjusted offense level, it was used to determine

Brock’s guidelines range. Thus, there is no basis in fact for

Brock’s challenge to the application of this enhancement.

Lastly, Brock challenges the calculation of his criminal

history category, arguing that his convictions were not proven with

certified judgments of conviction. When challenging the district

court’s reliance on information in the presentence report in making

findings, the defendant bears the burden of establishing that the

information relied on by the district court is incorrect; mere

objections are insufficient. United States v. Love, 134 F.3d 595,

606 (4th Cir. 1998); United States v. Terry, 916 F.2d 157, 162 (4th

Cir. 1990). At no point relevant to this proceeding has Brock

asserted that any of his prior criminal convictions were invalid or

offered any proof to contradict the criminal history calculation.

In light of this lack of contrary evidence, Brock has failed to

satisfy his burden of establishing plain error.

We next assess the reasonableness of Brock’s sentence.

This court affords sentences that fall within the properly

calculated guidelines range a presumption of reasonableness, a

presumption the Supreme Court permits. Rita v. United States, __

U.S. __, 127 S. Ct. 2456, 2459, 2462 (2007); United States v.

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Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309

(2006) (internal quotation marks and citation omitted).

As outlined above, the probation officer properly

calculated Brock’s guidelines range, which the district court

adopted without objection. Brock’s 176-month sentence falls within

both the properly calculated guidelines range, 168 to 210 months’

imprisonment, and the applicable statutory maximum. See 21 U.S.C.

§ 841(b)(1)(B) (authorizing a maximum sentence of life imprisonment

for offenses involving more than five grams of crack cocaine

committed by a defendant who has a prior felony narcotics

conviction); USSG ch. 5, pt. A, sentencing table. Thus, Brock’s

sentence is presumptively reasonable and Brock provides no

substantive argument to establish otherwise.

In his pro se brief, Brock asserts that the Government’s

§ 851 information was insufficient to subject him to the enhanced

penalties applicable under 21 U.S.C. § 841(b)(1)(A). Brock is

correct in that the Government did identify the wrong statutory

basis for seeking an enhanced penalty. However, the information

nonetheless provided Brock notice of the Government’s intent to

seen an enhanced punishment, albeit under 21 U.S.C. § 841

(b)(1)(B), (C). As we find this error in the § 851 information to

be merely clerical, we reject Brock’s assertion that it forms a

basis for vacatur or reversal of his sentence.

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 We further reject Brock’s assertion that his prior

narcotics conviction should not have been used as a predicate

conviction because the drug quantity involved in that conviction

did not meet the statutory threshold. However, the drug quantity

involved in the prior narcotics conviction is not relevant; all

that is relevant is that Brock had a prior felony conviction for a

narcotics offense, a fact asserted by the Government in its § 851

information that stands unrefuted on the record.

Finally, the mandate rule precludes us from reviewing

Brock’s last two claims — that the Government knowingly permitted

one of its witnesses to perjure himself at Brock’s trial and that

the district court should have considered his argument that a

police officer might have tampered with the seized narcotics. The

mandate rule “forecloses relitigation of issues expressly or

impliedly decided by the appellate court.” United States v. Bell,

5 F.3d 64, 66 (4th Cir. 1993). This court previously affirmed

Brock’s convictions, and our remand order was expressly limited to

resentencing.

Pursuant to Anders, we have examined the entire record

and find no meritorious issues for appeal. Accordingly, we affirm

the district court’s judgment. This court requires that counsel

inform her client, in writing of his right to petition the Supreme

Court of the United States for further review. If the client

requests that such a petition be filed, but counsel believes that

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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 the client. 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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