United States v. Brown

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-5090

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOE ANTHONY BROWN,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (3:01-cr-00185-5)

Submitted: October 22, 2007 Decided: November 26, 2007

Before MOTZ, TRAXLER, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

G. Bruce Park, NIXON PARK GRONQUIST & FOSTER, PLLC, Charlotte,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Jonathan A. Vogel, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Joe Anthony Brown appeals his sentence imposed on remand1

relative to his convictions by a jury for conspiracy to possess

with intent to distribute more than fifty grams of cocaine base, in

violation of 21 U.S.C. §§ 841(a)(1) and 846 (2000) (Count 1);

possession with intent to distribute more than five grams of

cocaine base, and aiding and abetting the same, in violation of 21

U.S.C. § 841(a)(1) (2000) and 18 U.S.C. § 2 (2000) (Count 2); and

use, carrying, and discharge of a firearm during and in relation to

the drug conspiracy, and possession and discharge of the firearm in

furtherance of the conspiracy, in violation of 18 U.S.C.

§ 924(c)(1) (2000) (Count 3). On remand, the district court

sentenced Brown to a period of incarceration of 240 months on Count

1, 60 months’ imprisonment on Count 2 to run concurrently with

Count 1, and 120 months’ imprisonment on Count 3 to run

consecutively with Count 1, for an aggregate sentence of 360

months’ imprisonment.2 The district court further ordered five

years of supervised release on each of Counts 1, 2, and 3, to run

1
We previously affirmed his convictions, but vacated his
sentence and remanded for resentencing in light of United States v.
Booker, 543 U.S. 220 (2005), and its progeny. United States v.
Brown, 128 F. App’x 975, 2005 WL 943675 (4th Cir. Apr. 25, 2005)
(unpublished).
2
This sentence is within the 330-382 month advisory guideline
range applicable to a base offense level of 36 and a criminal
history category of II.

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concurrently, and payment of restitution in the amount of $1500,

and a $300 special assessment.

In this appeal, Brown claims error by the district court

in its conclusion that Brown was responsible for a drug quantity of

at least 500 grams and less than 1.5 kilograms of crack cocaine,

and in departing upward for uncharged criminal conduct pursuant to

U.S. Sentencing Guidelines Manual (“USSG”) § 4A1.3 (2002). We find

no error by the district court on resentencing, and affirm Brown’s

sentence.

Brown specifically challenges the district judge’s

determination that the amount of drugs attributable to him was 500

grams to 1.5 kilograms of cocaine base, given that the jury

determined, beyond a reasonable doubt, that the amount of crack

cocaine attributable to the entire conspiracy count was at least 50

grams and the amount of crack cocaine attributable to the

substantive count was in excess of 5 grams. He contends that the

district court should be bound by the amount of drugs found by the

jury, which qualified him for an offense level of 32 and an

attendant advisory guidelines range of 135 to 168 months’

imprisonment. He further asserts the judge failed to specify what

evidence on which it relied in arriving at its conclusion on drug

quantity, and failed to articulate reasons to support its

conclusion.

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 With respect to the factual findings made by the district

court in determining the applicable guidelines range of

imprisonment in the wake of Booker, we have made clear that

decisions about sentencing factors continue to be made by judges,

and not juries, and are made by a preponderance of the evidence.

United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005) (“‘Booker

does not in the end move any decision from judge to jury, or change

the burden of persuasion.’” (citation omitted)). Accordingly, to

the extent Brown’s complaint is with the standard applied in

determining the drug quantity attributable to him, that contention

is without merit.

Moreover, Brown makes no claim or assertion that the

district court’s factual finding that he was responsible for 500

grams to 1.5 kilograms of cocaine base was unsupported by the

evidence or the product of clear error, see United States v.

Ebersole, 411 F.3d 517, 536 (4th Cir. 2005) (district courts’

factual findings are reviewed for clear error), cert. denied, 546

U.S. 1139 (2006).3 Rather, his complaint is that the court decided

the issue differently than the jury, based upon a different

standard, and that the court failed to offer sufficient reasons on

the record to support its determination.

3
Neither at the first sentencing hearing, nor at the
resentencing hearing, did Brown argue that there was insufficient
evidence to support the district court’s finding of drug quantity
or challenge the adequacy of the district court’s finding on that
issue.

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 The sentencing judge stated that his determination as to

drug quantity was made based on the testimony at sentencing.4 In

addition, the drug quantity determined by the district court is

consistent with the quantity set forth as being individually

attributable to Brown in the presentence report.

Brown offers no facts that would undermine or cause this

court to question the propriety of the district court’s factual

finding regarding drug quantity.5 He even concedes that the

sentencing court was “familiar with the prior trial testimony, as

well as sentencing hearing evidence, and testimony.” Nor does

Brown offer any case law that would support his position that the

sentencing court is required to specify the particular evidence on

which it relied in arriving at its conclusion on drug quantity. We

find that the district court’s findings here as to drug quantity

were properly determined by the judge by a preponderance of the

evidence, and were not clearly erroneous.

4
The sentencing court stated that it would find that the drug
amount in excess of 500 grams was based on “all of the previous
testimony at sentencing hearings in this case including those that
took place prior to remand.” Moreover, while not specifically
mentioned by the district court during the resentencing
proceedings, the sentencing judge presided over Brown’s trial, at
which ample testimony was presented with regard to drug quantity.
5
Nor do we find that Brown’s citation to Pinkerton v. United
States, 328 U.S. 640 (1946), and United States v. Collins, 415 F.3d
304 (4th Cir. 2005), changes our analysis, given that the district
court followed the correct procedures in sentencing Brown and
properly determined the drug quantity individually attributable to
him.

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 Brown’s final allegation is that the district court erred

by departing upward for uncharged criminal conduct, pursuant to

USSG § 4A1.3. Specifically, his challenge appears to be based on

the district court’s statements during the sentencing hearing

regarding three shooting incidents involving Brown, and its

statement that it “contemplate[d]” imposing an upward departure

relative to those incidents. However, the record is clear that the

district court ultimately declined to depart upward, and sentenced

Brown at an offense level 36 and a criminal history category II.

As there was no upward departure pursuant to USSG § 4A1.3, Brown’s

challenge on that basis is without merit.

Accordingly, we affirm Brown’s sentence. 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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