UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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(unpublished).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