NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0521n.06
No. 09-1037 FILED
Aug 17, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
BRIAN BROWN, ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
Defendant-Appellant. )
)
)
)
Before: KEITH, BOGGS, and MCKEAGUE, Circuit Judges.
KEITH, Circuit Judge.
Defendant Brian Brown (“Brown”) pleaded guilty to one count of conspiring to possess with
intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district court
sentenced Brown to a term of 108 months, which fell at the bottom of the court’s calculated
Guidelines range. Brown now appeals on the grounds that: (1) his plea was not knowing, voluntary,
and intelligent; and (2) his sentence was procedurally and substantively unreasonable. We AFFIRM
Brown’s conviction and sentence.
1
I.
In early 2006, undercover officers purchased twelve grams of crack cocaine from Brown.
Brown sold the substance outside his residence in Michigan. In April 2006, the FBI received word
that William Hunter,1 Reginald Orr, and others were involved in drug distribution in Michigan’s
Macomb and Wayne Counties. Local and federal law enforcement agents accordingly initiated a
federal investigation in the area. Pursuant to court-authorized telephone taps, the FBI learned that
Hunter supplied the contraband to Orr and Brown, each of whom operated separately.
The joint investigation laid the basis for a search warrant, which was executed at Brown’s
home on September 19, 2006. The search revealed pistols, pistol magazines, and paraphernalia
associated with the distribution of drugs. The investigation concluded once the search warrants were
executed. However, Brown’s criminal behavior persisted. During a recorded conversation on May
16, 2007, Hunter stated that he regularly supplied Brown with cocaine. Days later, on May 27,
Brown stated in a separate recorded conversation that he received a kilogram of cocaine each week
from Hunter, generating a half-million dollars.
On July 11, 2007, a federal grand jury in the Eastern District of Michigan indicted Brown on
one count, Count 2, of conspiracy to possess with intent to distribute cocaine, in violation of 21
U.S.C. §§ 846 and 841(a)(a). On the same day that the superseding indictment was entered, a federal
magistrate judge ordered Brown detained pending a detention hearing. The following day, Brown,
through counsel, pleaded not guilty to Count 2 of the superseding indictment. The court held a
1
William Hunter is named as Brian Brown’s co-conspirator in the second of two counts in
the First Superseding Indictment. This appeal only concerns Count 2 because Count 1 charged
Hunter, alone, with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).
2
detention hearing and set an unsecured bond of $10,000. On January 31, 2008, Brown appeared
before the district court with counsel. He pleaded guilty to Count 2, without a plea agreement.
In determining his applicable Guidelines range, Brown’s Presentence Investigation Report
(“PSR”) indicated that he was a drug conspirator within the meaning of U.S.S.G. § 2D1.1(a)(3),
resulting in a base offense level of 36. As the offense involved cocaine base, the base offense level
was then reduced by two. U.S.S.G. § 2D1.1(i). The PSR added two levels because a firearm was
used during the commission of the offense, and applied a three-level downward adjustment for
acceptance of responsibility. U.S.S.G. § 2D1.1(b)(1); U.S.S.G. § 3E1.1(a)-(b). These calculations
resulted in a total offense level of 33 which, combined with Defendant’s classification as criminal
history category I, generated a Guidelines range of 135 to 168 months.2 Brown objected to the PSR
on several grounds. First, he argued that he was entitled to a sentence reduction given his limited
role in the conspiracy. Second, he requested leniency in light of his mother’s extensive medical
needs and his own. Finally, he argued that the wiretapped conversations yielded uncorroborated, and
therefore inadmissible, evidence. In each case, the probation officer elected to maintain the
presentence report as written. However, at sentencing, the court rejected the PSR’s recommendation
for a two-level increase for possession of a gun. The court therefore computed Brown’s offense level
as 31; his sentencing range, 108 to 135 months. Brown was ultimately sentenced to a term of 108
2
This range was based upon the 12 grams of crack cocaine Brown sold the cooperating
witness in February 2006, and the 56 kilograms of powder cocaine Brown admitted receiving in
weekly installments over 14 months. That the PSR improperly considered the former sum in its
calculation of the advisory Guidelines range is undisputed. (Appellant’s Br. at 20; Appellee’s Br.
at 5.) The conspiracy charged ran from June 2006 until July 2007. The crack cocaine sale took place
in the early months of 2006 outside of that time period. (PSR at 5.) As discussed infra, this error
actually benefitted Brown.
3
months, at the very bottom of the Guidelines range, to be followed by three years of supervised
release.
II.
Brown first challenges the validity of his guilty plea. While this legal question is typically
reviewed de novo, United States v. Jones, 403 F.3d 817, 822-23 (6th Cir. 2005), an exception exists
where a defendant fails to challenge the plea in a lower court. See United States v. Page, 520 F.3d
545, 546-47 (6th Cir. 2008) (citations omitted). Under those circumstances, the claim is reviewed
for plain error. Id. “To establish plain error, a defendant must show (1) that an error occurred in the
district court; (2) that the error was plain, i.e., obvious or clear; (3) that the error affected
[D]efendant’s substantial rights; and (4) that this adverse impact seriously affected the fairness,
integrity or public reputation of the judicial proceedings.” Id. (quoting United States v. McCreary-
Redd, 475 F.3d 718, 721 (6th Cir. 2007)).
Guilty pleas “not only must be voluntary but must be knowing, intelligent acts done with
sufficient awareness of the relevant circumstances and likely consequences.” Ruelas v.
Wolfenbarger, 580 F.3d 403, 408 (6th Cir. 2009) (quoting Brady v. United States, 397 U.S. 742, 748
(1970)); see Boykin v. Alabama, 395 U.S. 238, 242 (1969). Voluntariness is determined by
analyzing whether the plea “[was] extracted by any sort of threats or violence, [or] obtained by any
direct or implied promises, however slight, [or] by the exertion of any improper influence.’” Brady,
397 U.S. at 753 (quoting Bram v. United States 168 U.S. 532, 542-543 (1897)). See also Railey v.
Webb, 540 F.3d 393, 417 (6th Cir. 2008) (quoting Hill v. Lockhart, 474 U.S. 52, 56 (1985)).
Whether a plea was entered knowingly and intelligently is a function of the defendant’s
4
understanding of the nature and consequences of the charges against him. See United States v. Webb,
403 F.3d 373, 379 (6th Cir. 2005).
Brown argues that his guilty plea was not knowing, intelligent, and voluntary, as required
under Brady and Boykin, because both he and the court were confused. Specifically, Brown argues
that he was materially misinformed regarding: (1) the quantity of cocaine that he admitted
possessing, and (2) the advisory Guidelines range associated with his plea. As to the former, Brown
testified early in the hearing that the conspiracy involved only a single kilogram of cocaine. He
proceeded to answer seventeen consecutive questions from the court about “a kilo,” “the kilo,” and
“that kilo.” Later in the hearing, in response to a pointed question from government counsel, Brown
stated that Hunter supplied him with a kilo of cocaine each week for fourteen months. Those weekly
installments amounted to over 56 kilograms of cocaine – a far cry from just one. The transcript
therefore reveals that the disparity was clarified before the hearing concluded. The second point of
confusion concerned Brown’s advisory Guidelines range. Brown understood the recommended
range to be 57 to 71 months, while the eventual PSR recommended a range of 135 to 168 months.
The district court did not disabuse Brown of this mistaken impression at any point during the plea
hearing. However, the court indicated that “other considerations” might influence whether the court
would remain within, or vary from, the recommended Guidelines range.3 Brown, himself, supplied
3
United States v. Hodge is apposite. 259 F.3d 549 (6th Cir. 2001). In that case, the defendant
argued that his plea was invalid because the district court did not advise him of the amount of loss
that would form the basis of his offense level. We rejected Hodge’s argument because “the district
court need not identify a particular sentencing range under the Guidelines when accepting a guilty
plea as long as the defendant is made aware of the maximum potential sentence and the fact that the
Guidelines operate to create a sentencing range under the statutory maximum within which the
district court may exercise its discretion.” Id. at 553-54 (citing United States v. Stephens, 906 F.2d
251, 253-54 (6th Cir. 1990). In Hodge, as here, “the district court did not have the benefit of the
5
such considerations – the additional 55 or more kilograms of cocaine – toward the end of the hearing.
Brown further failed to object to his liability for 56 kilograms of cocaine either before sentencing,
when presented with the PSR, or afterwards.
Despite the aforementioned confusion, Brown’s plea hearing was not infected with plain
error. Brown testified that he was satisfied with the advice of counsel and that his plea was neither
coerced nor incentivized. The district court methodically and comprehensively apprised him of his
constitutional rights, and directly asked Brown whether he understood the charges against him.
There is no evidence that Brown was incompetent or otherwise not in control of his mental faculties.
See Brady, 397 U.S. at 756. Brown indicated that he had read the indictment and discussed the
charge therein with counsel. Brown also satisfied the “minimum [requirement that] the defendant
. . . understand the ‘critical’ or ‘essential’ elements of the offense to which he or she pleads guilty”:
he acknowledged receiving a kilo of cocaine each week for fourteen months. United States v. Valdez,
362 F.3d 903, 909 (6th Cir. 2004) (citing Bousley v. United States, 523 U.S. 614 (1998)). Finally,
the Sixth Circuit has held that “a defendant need not know all the possible consequences of his plea,
. . . [but] he must be aware of the maximum sentence to which he is exposed.” Ruelas, 580 F.3d at
408. Brown expressly acknowledged that his crime carried a maximum penalty of twenty years.
The “Constitution, in respect to a defendant's awareness of relevant circumstances, does not
require complete knowledge, but permits a court to accept a guilty plea, with its accompanying
PSR's conclusions, which inform the district court's findings for amount of loss.” Id. Also as in
Hodge, the district court discussed Brown’s maximum potential sentence and the court’s discretion
to either remain within or depart from the Guidelines range. It follows that Brown’s plea, like
Hodge’s, was valid.
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waiver of various constitutional rights, despite various forms of misapprehension under which a
defendant might labor.” United States v. Ruiz, 536 U.S. 622, 623 (2002) (citing Brady, 397 U.S. at
757); see also Ashbaugh v. Gundy, 244 F. App’x 715, 717 (6th Cir. 2007) (noting that a plea may
be valid even if misapprehensions include “likely penalties”); Stephens, 906 F.2d at 253 (“[T]he
mere fact that an attorney incorrectly estimates the sentence a defendant is likely to receive is not a
‘fair and just’ reason to allow withdrawal of a plea agreement.”). Brown acknowledged receipt of,
and accepted responsibility for, the total quantity of cocaine giving rise to the charge against him.
He therefore did not have “‘such an incomplete understanding of the charge that his plea cannot
stand as an intelligent admission of guilt.’” United States v. Lukasik, 250 F. App’x 135, 137 (6th
Cir. 2007) (quoting Berry v. Mintzes, 726 F.2d 1142, 1147 (6th Cir. 1984) (citations omitted)). “[A]
comprehensive examination of the totality of the circumstances, . . . rather than . . . any particular
record inquiry,” Berry, 726 F.2d at 1147 (internal quotation marks and citation omitted), reveals that
Brown pleaded knowingly and intelligently.
III.
Following United States v. Booker, 543 U.S. 220 (2005), we review a district court's
sentencing decisions “under a deferential abuse-of-discretion standard,” for reasonableness. Gall
v. United States, 552 U.S. 38, 41 (2007); United States v. Stephens, 549 F.3d 459, 464 (6th Cir.
2008). Brown failed to object in the district court to the portion of the PSR that calculated his
offense level under U.S.S.G. § 2D1.1(a)(3) and § 2D1.1(c)(2). The question before this court, raised
for the first time in Brown’s appellant brief, is therefore whether this error in calculation requires
reversal. In United States v. Bostic, 371 F.3d 865 (6th Cir. 2004), the court held that “[i]f a party
7
does not clearly articulate any objection and the grounds upon which the objection is based, when
given [a] final opportunity to speak, then that party will have forfeited its opportunity to make any
objections not previously raised and thus will face plain error review on appeal.” Id. at 872-73; see
also United States v. Vonner, 516 F.3d 382, 385-89 (6th Cir. 2008) (en banc) (applying Bostic's
forfeiture rule to procedural-reasonableness claims). To establish plain error, Brown must therefore
show: (1) an error; (2) that was plain, i.e., obvious or clear; (3) that affected Brown’s substantial
rights; and (4) that seriously affected the fairness, integrity or public reputation of the judicial
proceedings. United States v. Alexander, 543 F.3d 819, 822 (6th Cir. 2008) (quoting United States
v. Koeberlein, 161 F.3d 946, 949 (6th Cir.1998)). He has failed to meet this burden.
The parties agree, and the record reflects, that the district court did not accurately calculate
Brown’s Guidelines range. The first and second elements of the test are met: there was error, and
it was clear. See Alexander, 543 F.3d at 822. While the charged conspiracy ran from June 2006
until July 2007, Brown’s Guidelines range improperly included a 12-gram crack sale he made in
February 2006. Accordingly, the range reflected both the 56 kilograms of powder cocaine Brown
admitted receiving in weekly installments over 14 months, and the 12 grams of crack cocaine Brown
sold to a cooperating witness. Pursuant to U.S.S.G. § 3D1.2, the PSR grouped the conspiracy and
possession with intent to distribute cocaine offenses. 21 U.S.C. § 846; 21 U.S.C. § 841. Based upon
the PSR's assumption that at least 50 but fewer than 150 kilograms of cocaine were attributable to
Brown for these offenses, Brown’s base offense level was 36. See § 2D1.1(c)(2). However, because
the offense involved cocaine base, or crack cocaine, the PSR applied a two-level downward
8
adjustment under § 2D1.1(d)(i). The downward adjustment was inappropriate because the crack
offense pre-dated the conspiracy.4
However, Brown has not shown that the error compromised his substantial rights. See United
States v. Olano, 507 U.S. 725, 734 (1993). Indeed, Brown benefitted from the inclusion of the crack
sale in the calculation of his Guidelines range. Cf. Bostic, 371 F.3d at 877 (holding that the district
court’s sentencing error “affected the government’s and the United States citizens’ substantial rights
because it drastically reduced [the defendant’s] sentence”) (emphasis added) and United States v.
Erpenbeck, 532 F.3d 423, 434 (6th Cir. 2008) (noting that the defendant “should consider himself
fortunate that the district court miscalculated the amount of loss in his favor”) (internal citation
omitted). Given that the improperly calculated Guidelines range reduced Brown’s sentence, the error
does not affect his substantial rights and does not warrant reversal. See, e.g., United States v.
Vaughn, 519 F.3d 802, 805 (8th Cir. 2008) (stating that the third prong requires a showing that “but
for the error [the defendant] would have received a more favorable sentence”) (internal citation
omitted). As Brown failed to meet the third prong, we need not analyze the fourth. See United
States v. Hadley, 431 F.3d 484, 509 n.19 (6th Cir. 2009).
IV.
Brown argues that his sentence was procedurally unreasonable because the district court
failed to adequately address the 18 U.S.C. § 3553 factors. A sentence is procedurally unreasonable
4
The United States adds, correctly, that the subsection was misapplied because it includes
a limitation barring reduction where it “results in a combined offense level that is less than the
combined offense level that would apply . . . if the offense involved only the other controlled
substance[.]” U.S.S.G. § 2D1.1, app. n. 10(D)(ii)(II).
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if the district court fails to calculate (or improperly calculates) the Guidelines range, treats the
Guidelines as mandatory, fails to consider the § 3553(a) factors, selects a sentence based on clearly
erroneous facts, or fails to adequately explain the chosen sentence. Gall, 552 U.S. at 51. We review
the district court's application of the Sentencing Guidelines de novo and the district court’s findings
of fact at sentencing for clear error. See United States v. Hunt, 487 F.3d 347, 350 (6th Cir. 2007).
A district court must “explain its reasoning to a sufficient degree to allow for meaningful
appellate review” and “set forth enough facts to satisfy this court that it considered the parties’
arguments and had a reasoned basis for exercising its own legal decision-making authority.” United
States v. Vowell, 516 F.3d 503, 510 (6th Cir. 2008). Explanations for sentences falling within the
Guidelines range “need not be lengthy.” United States v. Wilms, 495 F.3d 277, 280 (6th Cir. 2007).
Indeed, “[s]ometimes a judicial opinion responds to every argument; sometimes it does not[.]” Rita
v. United States, 551 U.S. 338, 356 (2007). The district court need not have “explicitly state[d] that
it ha[d] considered and rejected each of defendant’s arguments.” United States v. Berry, 565 F.3d
332, 341 (6th Cir. 2009).
The district court gave both parties an opportunity to argue for the sentence they deemed
appropriate and did not treat the Guidelines as mandatory. The court also appears to have adequately
considered a majority of the § 3553 factors, including: (1) Brown’s characteristics (“he has been a
caregiver for a wheelchair-bound mother and a father of children who are present in the courtroom”);
(2) the need to provide Brown training and treatment (“I will recommend the 500-hour drug
treatment”); (3) pertinent policy considerations (“there is no necessary correlation between weight
or amount and culpability;” “we are depopulating our African American male population at an
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alarming rate”); (4) the need to protect the public; (5) the need for deterrence; and (6) the need to
avoid unwarranted sentencing disparity. See 18 U.S.C. § 3553(a). As to this last factor, the
transcript reflects that the court entertained the argument and considered the supporting evidence.
Ultimately, the judge stated that he had “looked at the 3553 factors, and I don’t find any of them that
apply in this case . . . I am satisfied that none of the factors under 3553(a) call for a variance from
the guideline recommendation.” “[W]hen a judge decides simply to apply the Guidelines to a
particular case, doing so will not necessarily require lengthy explanation . . . because [c]ircumstances
may well make clear that the judge rests his [or her] decision upon the Commission’s own reasoning
that the Guidelines sentence is . . . proper . . . in the typical case.” Rita, 551 U.S. at 356 (internal
quotation marks omitted). It follows that the district court’s discussion of the § 3553 factors was
sufficient, even though the court did not explicitly clarify the nature and circumstances of the
offense5 and Brown’s criminal history.6 Indeed, these details were outlined in the PSR and drew no
objections from either party. See 18 U.S.C. 3553(a)(1). Brown’s sentence was not procedurally
unreasonable.
5
The district court was initially confused but immediately corrected itself about the scope
of the charged conspiracy. The court declared Brown to be “part of a group of one, two, three, four,
five, six, seven, eight defendants.” However, the indictment only charged Brown with conspiring
with supplier William Hunter. Indeed, the PSR explicitly states that Reginald Orr, the mastermind
of the eight-person conspiracy to which the district court referred, was “aware of [Brown’s] drug
distribution,” but that the two “operated separately.” Government counsel clarified that “this
defendant was not charged in the conspiracy involving the other defendants . . . . This was separate.”
The district court responded with incredulity. “Pardon?” he asked. “How many were involved?”“He
[Brown] had nothing to do with [the eight-person conspiracy]?” Standing corrected, the district
court indicated that it would “have to be careful” and promptly issued Brown a 108-month sentence.
6
The district court’s only reference to Brown’s criminal history, which included no criminal
convictions, was a passing reference to Brown’s criminal history category of I.
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V.
After considering procedural soundness, we consider “the substantive reasonableness of the
sentence imposed.” Gall, 552 U.S. at 51. A sentence is substantively unreasonable if the district
court “selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider
relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.”
United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008). Sentences imposed within a properly
calculated Guidelines range enjoy a presumption of substantive reasonableness on appeal. Vonner,
516 F.3d at 389-90. Given the miscalculation of Brown’s Guidelines range, Brown’s sentence is not
presumptively reasonable. However, the district court adhered to the Guidelines range outlined in
the PSR and arrived at the sentence only after referencing and considering many of the § 3553
factors. The transcript does not reflect that the district court gave unreasonable weight to any factor,
and the court engaged counsel to seek clarification about the one factor of which it was uncertain.
For these reasons, Brown’s sentence was not substantively unreasonable. Indeed, his 108-month
term fell 27 months below the low end of the Guidelines range that should have been applied.
VI.
For the foregoing reasons, we AFFIRM Brown’s conviction and sentence.
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