United States v. Brown

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 6, 2007 Decided February 29, 2008

No. 03-3102

UNITED STATES OF AMERICA,
APPELLEE

v.

MELVIN B. BROWN,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 03cr00026-01)

Beverly G. Dyer, Assistant Federal Public Defender, argued
the cause for the appellant. A.J. Kramer, Federal Public
Defender, was on brief. Neil H. Jaffee, Assistant Federal Public
Defender, entered an appearance.
Allison L. Barlotta, Assistant United States Attorney,
argued the cause for the appellee. Jeffrey A. Taylor, United
States Attorney, and Roy W. McLeese III, Mary B. McCord,
Sarah T. Chasson and Ellen C. Epstein, Assistant United States
Attorneys, were on brief.
Before: HENDERSON and TATEL, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
 2

Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: A jury found
appellant Melvin B. Brown (Brown) guilty of unlawful
possession of a firearm by a convicted felon in violation of 18
U.S.C. § 922(g). Brown was sentenced to 96 months’
imprisonment and three years’ supervised release. Brown now
appeals his sentence on the grounds that the district court erred
when it relied on Brown’s acquitted conduct in imposing a four
level enhancement and erred again when it considered Brown’s
arrest record in selecting a sentence near the high end of the
United States Sentencing Guidelines (Guidelines) range. For the
reasons set forth below, we affirm the district court’s judgment.
I.
On the night of December 22, 2002, officers of the
Metropolitan Police Department (MPD) set up an observation
post in the 2500 block of Pomeroy Road, N.E. in the District.
The MPD officers observed a group of men—including
Brown—drinking beer in a parking lot while other cars pulled
into the parking lot, apparently to buy drugs from them. When
the group began to disperse, the officers approached in several
police cars to detain them. Brown got into a Ford Focus and
tried to leave the parking lot but was blocked by one of the
police cars. Brown then attempted to flee on foot but was
chased down by an MPD officer and arrested. While pursuing
Brown, the MPD officer observed Brown remove a black
handgun from his pocket and throw it under a van in the parking
lot. During the subsequent inventory search, the officers
discovered a small glass vial containing 20 milliliters of
phencyclidine (PCP) in the front console area of the Ford Focus.
On January 23, 2003, Brown was indicted on one count of
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g), one count of unlawfully possessing with intent to
distribute PCP in violation of 21 U.S.C. §§ 841(a)(1) and
 3

(b)(1)(C) and one count of possessing a firearm during a drug
trafficking offense in violation of 18 U.S.C. § 924(c)(1).
Following a jury trial, Brown was convicted of the section
922(g) count but acquitted of the other two counts.
On August 19, 2003, the district court sentenced Brown to
96 months’ incarceration and three years’ supervised release.
The court sentenced Brown at the high end of the Guidelines
range based on several factors. First, it emphasized that “[t]his
is a serious offense.” Id. at 24. Second, it explained that “the
fact that the conditions of release imposed prior to trial were
violated, requiring that the defendant be held pending trial,”
influenced its decision. Id. Next, the court considered Brown’s
“lengthy record of contact with the criminal justice system
replete with serious drug and weapons charges, including a
serious conviction in addition to this conviction.” Id. at 24-25.
It then added that “[t]he juvenile convictions and arrests are
relevant in my view, even though they are not part of the
criminal history calculation.” Id. at 25 (emphasis added).
Finally, the court stated that Brown’s 2001 probation violation
was also “relevant.” Id. The court prefaced its explanation with
the statement that it did not intend to impose sentence until
counsel were given “the chance to point out any error that they
believe exists.” Id. at 24. Defense counsel did not object before
sentence was imposed. Id. at 27.
Brown filed a timely notice of appeal and on May 9, 2005,
we granted the parties’ joint motion to remand pursuant to
United States v. Coles, 403 F.3d 764 (D.C. Cir. 2005). United
States v. Brown, 455 F.3d 267 (D.C. Cir. 2005).1 On remand,

1
The “Coles remand” was necessitated by the Supreme Court’s
watershed opinion in United States v. Booker, 543 U.S. 220 (2005).
Booker includes a “Substantive Opinion,” addressing the merits of the
Sixth Amendment issue, and a “Remedy Opinion.” See Coles, 403
F.3d at 766. In the Substantive Opinion the Court held that “[a]ny fact
 4

Brown argued for the first time that the district court had erred
when it considered Brown’s arrest record in selecting a sentence
within the Guidelines range. The district court rejected
Brown’s argument and concluded that “[t]he same
considerations that justified the Court’s exercise of discretion to
sentence Brown near the top of the Guidelines range when the
Guidelines were still mandatory also support the Court's
conclusion that, had it sentenced Brown using the Guidelines in
an advisory fashion and taking into account all of the section
3553(a) factors, the same sentence would have been
appropriate.” United States v. Brown, 439 F. Supp. 2d 134, 139
(D.D.C. 2006). This appeal followed.
II.
“[A] sentence within a properly calculated Guidelines range
is entitled to a rebuttable presumption of reasonableness.”
United States v. Dorcely, 454 F.3d 366, 376 (D.C. Cir. 2006);

(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 verdict must be admitted by the defendant
or proved to a jury beyond a reasonable doubt.” 543 U.S. at 224. In
the Remedy Opinion, the Court “sever[ed] and excise[d]” two
provisions of the Sentencing Reform Act of 1984, Pub. L. 98-473, 98
Stat. 1987 (1984): subsection 3553(b)(1), making use of the
Guidelines mandatory, and section 3742(e), “set[ting] forth standards
of review on appeal.” Id. at 259. It instructed that “Section 3553(a)
remains in effect, and sets forth numerous factors that guide
sentencing . . . [and] [t]hose factors in turn will guide appellate courts,
as they have in the past, in determining whether a sentence is
unreasonable.” Id. at 261. Booker applied to all then-pending appeals
“on direct review.” Id. at 268. As discussed more fully infra, the
Coles remand instructed the sentencing court to “determine whether
it would have imposed a different sentence materially more favorable
to the defendant had it been fully aware of the post-Booker sentencing
regime.” Coles, 403 F.3d at 770.
 5

see also Gall v. United States, 128 S.Ct. 586, 597 (2007)
(“Regardless of whether the sentence imposed is inside or
outside the Guidelines range, the appellate court must review the
sentence under an abuse-of-discretion standard. . . . If the
sentence is within the Guidelines range, the appellate court may,
but is not required to, apply a presumption of reasonableness.”);
Rita v. United States, 127 S.Ct. 2456, 2462 (2007) (appellate
court “may apply a presumption of reasonableness to a district
court sentence that reflects a proper application of the
Sentencing Guidelines”). Brown’s base offense level for his
felon-in-possession conviction was 20. See U.S.S.G.
§ 2K2.1(a)(4)(A). The district court then made a two-point
upward adjustment because the firearm was stolen, see id.
§ 2K2.1(b)(4), and a four-point upward adjustment because he
possessed the firearm in connection with another felony offense,
see id. § 2K2.1(b)(6), for a total offense level of 26. With
Brown’s criminal history category III, the offense level resulted
in a Guidelines range of 78 to 97 months. See id. ch. 5, pt. A.
As noted, the court sentenced Brown within the Guidelines
range to 96 months’ imprisonment. Although Brown does not
expressly challenge the reasonableness of the sentence, Brown
contends that the district court erred by considering his acquitted
conduct and his arrest record in sentencing him at the high end
of the Guidelines range.
A. Brown’s Acquitted Conduct
Brown argues that the district court erred in imposing a
four-point upward adjustment to his base offense level based on
his acquitted conduct. Applying de novo review, we held in
Dorcely that “a sentencing court may base a sentence on
acquitted conduct without offending the defendant’s Sixth
Amendment right to trial by jury.” 454 F.3d at 371; see also
United States v. Watts, 519 U.S. 148, 156 (1997) (sentencing
court’s consideration of acquitted conduct does not violate
double jeopardy clause). We concluded that “consideration of
 6

acquitted conduct violates the Sixth Amendment only if the
judge imposes a sentence that exceeds what the jury verdict
authorizes.” 454 F.3d at 371. Brown’s conviction on the felon-
in-possession count authorized a sentence of imprisonment of
“not more than 10 years.” 18 U.S.C. § 924(a)(2). Because he
was sentenced to only 96 months’ imprisonment, the district
court was authorized to rely on Brown’s acquitted conduct.
B. Brown’s Arrest Record
Brown also contends that the district court erred by
considering his arrest record in determining the sentence it
imposed. Before reaching the merits of Brown’s argument, we
address the applicable standard of review for this claim.
1. Standard of Review
According to the Government, the district court’s reliance
on Brown’s arrest record should be reviewed for plain error
because Brown failed to object to the use of his arrest record at
his sentencing. Brown counters that we should review his claim
de novo because Brown objected to the use of his arrest record
at the Coles remand hearing.
We have held post-Booker that a sentencing judge who, pre-
Booker, applied the Guidelines as mandatory committed a non-
constitutional error. See United States v. Carson, 455 F.3d 336,
383 (D.C. Cir. 2006) (“We have distinguished between those
misapplications of the Guidelines in which a sentencing court
increases a sentence beyond the maximum that could have been
imposed based solely on the facts reflected in the jury verdict,
which, because they violate the Sixth Amendment are
constitutional Booker errors, and those cases in which the
court’s error was only the mandatory, as opposed to advisory,
treatment of the Guidelines. We call these latter errors
non-constitutional Booker errors . . . .”) (quotation omitted). If
the defendant did not preserve his Sixth Amendment challenge
to the Guidelines as mandatory by objecting at sentencing, as
 7

Brown did not, we apply plain error review and assess “whether
there would have been a materially different result, more
favorable to the defendant, had the sentence been imposed in
accordance with the post-Booker sentencing regime.” Id.
(quoting Coles, 403 F.3d at 767).2 According to Carson, there
are three types of sentencing appeals affected by Booker:
First, “there undoubtedly will be some cases in which
a reviewing court will be confident that a defendant has
suffered no prejudice” such as where the judge imposes
a “sentence at the statutory maximum and [states] that
if he could he would have imposed an even longer
sentence.” [Coles, 403 F.3d] at 769 (citation omitted).
In those cases, we affirm the sentence. Second, “there
will be some cases in which we are confident that the
defendant suffered prejudice [such as] where the . . .
judge indicated on the record that, but for the
Guidelines, she would have imposed a lower
sentence.” Id. In those cases, we remand for full
resentencing. Third, as was the case in Coles, there
will be cases where “the record simply is not sufficient
for an appellate court to determin[e] prejudice with any
confidence.” Id.
Carson, 455 F.3d at 383-84 (footnote omitted) (second alteration
added).
In the third category of cases—where the record is not
sufficient to gauge prejudice vel non—we “remand the record”
only and retain jurisdiction. Coles, 403 F.3d at 765, 770-71. On
record remand, the district court is directed to “determine
whether it would have imposed a different sentence materially

2
If the defendant did preserve his Sixth Amendment challenge by
objecting at sentencing, we do not use the Coles remand. United
States v. Boyd, 435 F.3d 316, 319 (D.C. Cir. 2006).
 8

more favorable to the defendant had it been fully aware of the
post-Booker sentencing regime.” Id. at 770. The district court
is not required to determine what the sentence would have been
in making this determination and “‘”need not” require the
presence of the Defendant.’” Id. (quoting United States v.
Paladino, 401 F.3d 471, 484 (7th Cir. 2005) (quoting United
States v. Crosby, 397 F.3d 103, 120 (2d Cir. 2005) (quoting Fed.
R. Crim. P. 43(b)(3)))). The remand thus serves the purely
informational purpose of informing us whether the sentencing
judge would have imposed “a different sentence materially more
favorable to the defendant.” Id. If the sentencing judge
concludes that he would have imposed a sentence materially
more favorable to the defendant had the Guidelines been
advisory only, we vacate the sentence and the district court then
conducts a resentencing. United States v. Gomez, 431 F.3d 818,
823 (D.C. Cir. 2005).
As noted, after Brown appealed his sentence, we granted the
parties’ joint motion for a Coles remand. Brown, 455 F.3d at
267. Because a Coles remand is only a record remand rather
than a resentencing, Brown’s original sentencing was his only
sentencing and his failure to object to the use of his arrest record
at that time means that we review at this time for plain error
only. See In re Sealed Case, 349 F.3d 685, 690 (D.C. Cir. 2003)
(“[P]lain error review is appropriate when the appellant fails to
raise a claim at his sentencing hearing or when he fails to object
to the district court’s ruling.”) (citing Fed. R. Crim. P. 52(b)).3

3
Even if we had ordered a remand for resentencing, the district
court might not have been able to consider Brown’s argument
regarding his arrest record. See United States v. Whren, 111 F.3d 956,
960 (D.C. Cir. 1997) (“[U]pon a resentencing occasioned by a remand,
unless the court of appeals expressly directs otherwise, the district
court may consider only such new arguments or new facts as are made
newly relevant by the court of appeals’ decision—whether by the
reasoning or by the result.”).
 9

Plain error exists “‘where (1) there is error (2) that is plain
and (3) that affects substantial rights, and (4) the court of
appeals finds that the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.’” United
States v. Andrews, 479 F.3d 894, 896 (D.C. Cir. 2007) (quoting
United States v. Johnson, 437 F.3d 69, 74 (D.C. Cir. 2006)).
“An error ‘affect[s] substantial rights’ if it is ‘prejudicial.’”
United States v. Williams, 488 F.3d 1004, 1008 (D.C. Cir. 2007)
(quoting United States v. Olano, 507 U.S. 725, 734 (1993))
(alteration in Olano). “To establish prejudice in the sentencing
context, [the defendant] ‘must show a reasonable likelihood that
the sentencing court’s obvious errors affected his sentence.’” Id.
(quoting United States v. Saro, 24 F.3d 283, 288 (D.C. Cir.
1994)).
2. The Merits
The district court imposed a sentence at the high end of the
Guidelines range based on its consideration of numerous factors,
including Brown’s arrest record. Sentencing Tr. 24-25, Aug. 19,
2003. Brown argues that the district court erred in considering
his arrest record where the record lacked any evidence that
Brown had in fact committed the conduct for which he was
arrested. Brown also asserts that section 4A1.3 of the
Guidelines expresses a policy against reliance on arrest records.
Finally, Brown contends that “without evidence showing by a
preponderance that he committed the conduct for which he was
charged . . . the arrest record is irrelevant to the appropriate
sentence.” Appellant’s Br. 15.
“In determining the sentence to impose within the
guideline[s] range, or whether a departure from the guidelines
is warranted, the court may consider, without limitation, any
information concerning the background, character, and conduct
of the defendant, unless otherwise prohibited by law.” U.S.S.G.
§ 1B1.4 (emphasis added); see also 18 U.S.C. § 3661 (“No
limitation shall be placed on the information concerning the
 10

background, character, and conduct of a person convicted of an
offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate sentence.”)
(emphasis added). The all-inclusive language of both the
Guidelines and 18 U.S.C. § 3661 makes clear that a defendant’s
arrest record may properly be considered as part of his
“background.”
Brown nonetheless contends that U.S.S.G. § 4A1.3(a)(3),
which provides that “[a] prior arrest record itself shall not be
considered for purposes of an upward departure,” and the
holding in United States v. Joaquin, 326 F.3d 1287 (D.C. Cir.
2003), that an earlier version of section 4A1.3 also prohibited
reliance on an arrest record for a downward departure, together
prohibit consideration of his arrest record. Section 4A1.3’s
prohibition, however, does not extend to the imposition of a
sentence within the Guidelines range. As noted, the Guidelines’
starting presumption is that “the court may consider, without
limitation, any information concerning the background,
character and conduct of the defendant, unless otherwise
prohibited by law.” U.S.S.G. § 1B1.4. Section 4A1.3, whatever
it prohibits regarding departures,4 does not prohibit the

4
The version of section 4A1.3 in effect when Joaquin was decided
provided, in pertinent part:
The court may, after a review of all the relevant information,
conclude that the defendant’s criminal history was
significantly more serious than that of most defendants in the
same criminal history category, and therefore consider an
upward departure from the guidelines. However, a prior
arrest record itself shall not be considered under § 4A1.3.
U.S.S.G. § 4A1.3 (2002 ed.). Based on this language, the Joaquin
majority held that the arrest record prohibition applied to both upward
and downward departures. 326 F.3d at 1292. In 2003 section 4A1.3
was amended and now states that “[a] prior arrest record itself shall
 11

sentencing court’s consideration of the defendant’s arrest record
when sentencing within the Guidelines range.
Brown’s argument that an adverse inference cannot
necessarily be drawn from an arrest record, without more, merits
closer consideration. The district court could have inferred that
none of Brown’s arrests resulted in prosecutions because Brown
was innocent. See, e.g., United States v. Zapete-Garcia, 447
F.3d 57, 60-61 (1st Cir. 2006) (“More generally, a mere arrest,
especially a lone arrest, is not evidence that the person arrested
actually committed any criminal conduct. This is because arrest
‘happens to the innocent as well as the guilty.’” (quoting
Michelson v. United States, 335 U.S. 469, 482 (1948))). The
district court did not view Brown’s arrests in isolation, however,
but instead in the context of numerous other contacts with the
criminal justice system. For example, the court cited Brown’s
violation of the conditions of pre-trial release while awaiting
trial on the instant charges as well as his prior convictions and
probation violation. The court’s reference to Brown’s arrest
record simply catalogued an additional example of Brown’s
repeated contact with the criminal justice system over a short
period of time at a young age. Under these circumstances, the
district court did not err in considering Brown’s arrest record as
one of many factors warranting a sentence at the top of the
Guidelines range. See Zapete-Garcia, 447 F.3d at 61 (“[A]
series of past arrests might legitimately suggest a pattern of
unlawful behavior even in the absence of any
convictions . . . .”); cf. United States v. Chavez-Calderon, 494
F.3d 1266, 1270 (10th Cir. 2007) (district court is not
“precluded from considering uncontested conduct, even if
uncharged, in formulating a reasonable sentence”) (citing United

not be considered for purposes of an upward departure.” U.S.S.G.
§ 4A1.3 (2007 ed.). Significantly, section 4A1.3 does not prohibit
consideration of an arrest record for a downward departure.
 12

States v. Mateo, 471 F.3d 1162, 1167-68 (10th Cir. 2006)).
Even assuming arguendo that the district court erred by
considering Brown’s arrest record, it did not plainly err. “If
there is no clear legal rule—whether expressed in a prior
decision or elsewhere—governing an issue, then the district
court’s decision cannot be a plain error.” Whren, 111 F.3d at
960 (citing United States v. Merlos, 8 F.3d 48, 51 (D.C. Cir.
1993)). Both 18 U.S.C. § 3661 and the Guidelines, U.S.S.G.
§ 1B1.4, authorize the Court to consider any information
“concerning the background, character and conduct” of the
defendant, which information, under the circumstances of this
case, includes Brown’s arrest record.5
Finally, at the Coles remand hearing we originally ordered
in this case, the district court determined that it “would not have
imposed a sentence materially more favorable to defendant had
it been fully aware of the post-Booker sentencing regime at the
time of sentencing,” Brown, 439 F. Supp. 2d at 139, and we find
no plain error in Brown’s sentence. See United States v. Coles,
186 Fed. Appx. 2, 3-4 (D.C. Cir. 2006).
For the foregoing reasons, we affirm the judgment of the
district court.
So ordered.

5
See also United States v. Winters, 172 Fed. Appx. 282, 283 (11th
Cir. 2006) (district court may consider defendant’s arrest record);
United States v. Payo, 40 Fed. Appx. 730, 731 (3d Cir. 2002) (“There
is of course no objection to the District Court considering [charges that
were nol-prossed or reduced to a lesser offense] as it is by now well
accepted that the sentencing court may consider any reliable
information.”); United States v. Hill, 60 Fed. Appx. 564, 566 (6th Cir.
2003) (“Courts have consistently held that uncharged but relevant
criminal conduct may be used in determining a defendant’s sentencing
guideline range.”)