NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0860n.06
Case No. 14-3257 FILED
Nov 14, 2014
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
DANIEL J. BROWN, III, aka D.J. Brown, oka ) OHIO
Daniel Joseph Brown, III, )
)
Defendant-Appellant. )
BEFORE: DAUGHTREY, CLAY, and COOK, Circuit Judges.
COOK, Circuit Judge. Daniel Brown pleaded guilty to conspiring to commit an offense
against the United States for his role in holding a cognitively disabled adult and her minor child
in a state of involuntary servitude. At sentencing, the district court varied upward from the
advisory sentencing guidelines range to impose the statutory maximum penalty of 60 months’
imprisonment. Brown appeals the reasonableness of that sentence, and we AFFIRM.
Between June 2011 and December 2011, Brown conspired with three others to hold a
cognitively disabled adult, S.E., and her minor child, B.E., in a state of involuntary servitude at
an apartment shared by two of his co-conspirators. Brown physically abused S.E. on numerous
occasions, forced S.E. to hit her child, and nailed shut the windows in the room where the
victims slept so they could not escape. Once, after the victims managed to escape, he recaptured
Case No. 14-3257
United States v. Brown
them by falsely promising to take them to a nearby ice cream store in his vehicle. The
conspirators later forcibly shaved S.E.’s head and wrote demeaning comments on her face in
permanent marker. Brown and his co-conspirators also stole S.E.’s federal benefits during her
confinement, as well as pain pills prescribed to S.E. for injuries inflicted by members of the
conspiracy.
After his arrest, Brown waived his right to prosecution by indictment and pleaded guilty
to conspiring to commit an offense against the United States, 18 U.S.C. § 371. Under the terms
of the plea agreement, the parties agreed to recommend a sentence within the applicable
sentencing guidelines range. Both parties assented to the presentence investigation report’s
calculation of an adjusted offense level of 30 and the resulting advisory range of 121–151
months’ imprisonment. Recognizing that Brown’s crime carried a statutory maximum penalty of
60 months’ imprisonment, however, the district court applied an offense level of 23, the highest
offense level with a range (57–71 months) encompassing the maximum. The government moved
for a five-level downward departure in return for Brown’s substantial assistance in testifying at
his co-conspirators’ trial. The court granted the motion and calculated a final guidelines range of
33–41 months. It then varied upward from this range after considering the 18 U.S.C. § 3553(a)
factors and imposed the statutory maximum penalty of 60 months’ imprisonment.
Brown now appeals, arguing that the district court applied a procedurally and
substantively unreasonable 19-month upward variance to his sentence. Specifically, he
maintains that the court erred in relying on conduct already reflected in the guidelines
calculation, failing to properly account for his cooperation with the government, and concluding
that his criminal history exhibited “violence.” We review the sentence for reasonableness under
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Case No. 14-3257
United States v. Brown
an abuse-of-discretion standard. United States v. Houston, 529 F.3d 743, 753, 755 (6th Cir.
2008) (citing Gall v. United States, 552 U.S. 38, 45–47 (2007)).
We find no abuse of discretion here, as the record shows that the district court
adequately justified the upward variance. The court first explained that it felt compelled to vary
upward to the statutory maximum in light of the “horrific” nature of the offense, the fact that
Brown committed the offenses against “a mentally vulnerable adult and an entirely helpless
child,” and Brown’s history of child endangerment and violence toward women. (R. 47,
Sentencing Tr. at 27–31.) Looking to the § 3553(a) factors, the court concluded that a lower
sentence would not justly punish the offense, sufficiently deter those who would “cruelly and
brutally” degrade and restrain others, or adequately assure the public’s protection. (See R. 47,
Sentencing Tr. at 30–31.)
Brown’s objections do not persuade us to disturb the court’s well-reasoned decision. He
first argues that the enhancements applied in calculating the guidelines range sufficiently
captured the severity of his crime. But this court “ha[s] rejected the argument that a sentence is
substantively unreasonable because the § 3553(a) factors on which the district court relied to
sentence the defendant outside the advisory Guidelines range were already reflected in the
Guidelines calculation.” United States v. Rossi, 422 F. App’x 425, 436 (6th Cir. 2011) (citing
United States v. Tristan-Madrigal, 601 F.3d 629, 636 n.1 (6th Cir. 2010)). And because the
statutory maximum of 60 months required the court to scale back the offense level from 30 to 23,
the ultimate guidelines range did not reflect most of the otherwise applicable guidelines
enhancements.
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Case No. 14-3257
United States v. Brown
Brown also contends that the court failed to sufficiently credit his cooperation and
acceptance of responsibility. In essence, Brown “asks us to balance the factors differently than
the district court did,” but “[t]his is simply beyond the scope of our appellate review, which
looks to whether the sentence is reasonable, as opposed to whether in the first instance we would
have imposed the same sentence.” United States v. Ely, 468 F.3d 399, 404 (6th Cir. 2006).
Finally, Brown maintains that his prior conviction for misdemeanor assault failed to
support the variance. Yet in concluding that Brown’s criminal history reflected “violence,” the
court relied on not just his assault conviction, but on his admitted abuse of his own mother and
his previous convictions for endangering and contributing to the delinquency of children. These
facts, together with the court’s measured consideration of the seriousness of the offense and the
other § 3553(a) factors, adequately justified the upward variance.
Finding no abuse of discretion, we AFFIRM Brown’s sentence.
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