United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 5, 2021 Decided December 3, 2021
No. 20-3011
UNITED STATES OF AMERICA,
APPELLEE
v.
KELVIN BREVARD,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cr-00316-1)
Tony Axam Jr., Assistant Federal Public Defender, argued
the cause for appellant. With him on the briefs was A.J.
Kramer, Federal Public Defender.
David B. Goodhand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Elizabeth
Trosman, Assistant U.S. Attorney at the time the brief was
filed, and John P. Mannarino, Assistant U.S. Attorney.
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Before: ROGERS, MILLETT and PILLARD, Circuit Judges.
Opinion for the Court by Circuit Judge ROGERS.
Rogers, CIRCUIT JUDGE: In sentencing appellant Kelvin
Brevard to 30 months’ imprisonment for escape in violation of
18 U.S.C. § 751(a), the district court departed upward, pursuant
to Sentencing Guidelines § 5K2.21, based on uncharged
conduct in violation of the D.C. Criminal Code allegedly
committed while Brevard was on escape status. Alternatively,
the district court found, pursuant to 18 U.S.C. § 3553(a), that
an upward variance of the same number of months was
appropriate in view of other factors in Brevard’s criminal
history. Although, as Brevard points out, the departure was
procedurally erroneous because the district court
misinterpreted Guideline 5K2.21’s application to District of
Columbia Code offenses, the court affirms because the district
court did not abuse its discretion in imposing an upward
variance.
I.
Brevard was serving the last few months of a sentence of
18 months’ imprisonment for unlawful firearm possession
under the D.C. Criminal Code at the Hope Village halfway
house. On July 31, 2019, he left and did not return. About
seven weeks later, he was apprehended and subsequently
charged with one count of escape, pursuant to 18 U.S.C.
§ 751(a). He declined the government’s plea offer and pleaded
guilty.
The Presentencing Investigation Report (“PSR”)
calculated an adjusted offense level of 7 and a criminal history
category of V for Brevard. The resulting advisory Guidelines
range for Brevard’s escape offense was 12–18 months’
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imprisonment. The Probation Office recommended that
Brevard be sentenced to 12 months’ imprisonment. In a
sentencing memorandum, the U.S. Attorney’s Office viewed
Brevard’s prior convictions to place him in criminal history
category VI and requested a sentence of 15 months’
imprisonment, at the bottom of the resulting advisory
Guidelines range of 15–21 months, noting Brevard suffered
from mental health issues in need of treatment and had
accepted responsibility for his crime. Brevard sought a
downward variance to a sentence of time served because of his
history of mental illness and his fear for his safety at the
halfway house. Counsel also referred to sentencing disparities
that result from “walk-away” escape cases prosecuted as
federal offenses in the District of Columbia.
On the scheduled sentencing date, the district court
announced that it wanted to hear evidence regarding a separate
assault and threats incident mentioned in the PSR that occurred
on September 17, 2019, seven weeks after Brevard had failed
to return to the halfway house. The court was considering an
upward departure pursuant to Guideline 5K2.21 for the conduct
involved in that incident. The Assistant U.S. Attorney
explained that Brevard had been charged in the Superior Court
of the District of Columbia with two offenses under the D.C.
Criminal Code, but the charges were dismissed when the
complainant and her mother did not appear for trial. Counsel
for Brevard objected that relying solely on the information in
the PSR would deny Brevard the opportunity to confront the
witnesses regarding the threats incident. The district court
adjourned the sentencing hearing for about a week, requesting
that the U.S. Attorney’s Office present at least one of the police
officers who responded to the incident “and anyone else [the
prosecutor] think[s] may be appropriate” to testify. Sent. Tr.
4–5 (Feb. 11, 2020).
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At the reconvened sentencing hearing, the Assistant U.S.
Attorney presented D.C. Metropolitan Police Officer Charles
Kasongo, who was a trainee at the time of the alleged assault.
Officer Kasongo testified that on September 17, 2019, he
responded to a 911 call for a “man with a gun.” Sent. Tr. 10–
12 (Feb. 20, 2020). When he and two other officers arrived,
they saw two women in the stairwell outside of one woman’s
apartment. Officer Kasongo “mostly guard[ed]” the apartment
house door downstairs in case the man with a gun returned
while the other officers spoke to the women “upstairs.” Id. at
11–12. From what Officer Kasongo could see, one woman was
“a little older” than the other, and he came to learn that the
women were Bernadette McQueen and her mother. Id. at 12–
13. Officer Kasongo testified that Ms. McQueen “seemed
panicked” and “kept saying that he’s a killer, he’s a killer, he’s
a killer,” id. at 13–14, and her mother “was panicked as well
but a little bit frustrated and upset,” id. at 14. Further, as best
he could hear, Ms. McQueen’s mother told the officers that
Brevard had knocked on her apartment door “with a weapon”
and told her to “tell your bitch of a daughter that I will kill her.”
Id. at 16. When she asked Brevard why he was “disrespecting
[her] house,” he “repeated what he said” and “lifted [his] shirt
and showed a weapon.” Id. at 16–17. The women identified
Brevard as the man with a gun, who was the father of Ms.
McQueen’s child. Officer Kasongo later learned from the other
officers that the women said the child had been waiting at a bus
stop with Ms. McQueen’s new boyfriend when Brevard
approached; the boyfriend “took off running,” and the child
“went back to the apartment saying [Brevard] has a gun, he has
a gun.” Id. at 22–24.
Several hours later, the officers saw Brevard in a parking
lot. When they approached, Brevard ran. After a brief chase,
the officers apprehended him. The officers did not find a
firearm on his person or along the chase route. Officer
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Kasongo testified that he did not see Brevard move as though
he was armed with a gun or see him with a gun. Brevard, who
had been at large after leaving the halfway house, was arrested
and subsequently charged with escape in the U.S. District
Court for the District of Columbia and with assault and threats
in D.C. Superior Court.
Upon hearing Officer Kasongo’s testimony and the
arguments of both counsel, the district court judge stated that
he would consider the uncharged conduct in determining the
appropriate sentence for the escape, ruling that Ms. McQueen’s
mother’s statements qualified as an excited utterance and were
not hearsay. See FED. R. EVID. 803(2). The judge noted that
he could rely on hearsay at sentencing in any event. Either
way, the judge concluded that the threats had been proved by a
preponderance of the evidence. In his view, the threats “fit[]
exactly within [Guideline 5K2.21] and particularly the idea that
charges . . . were not pursued in the case for any other reason,”
namely, the “failure of the complaining witness to cooperate
with the prosecution.” Tr. 75. The judge had stated that “what
somebody does while on escape [is] very relevant to the
appropriate sentence.” Sent. Tr. 4 (Feb. 11, 2020). Brevard
objected that the plain text of Guideline 5K2.21 requires the
uncharged conduct to be a potential “part of this case,” namely
the federal escape case, and that here the uncharged conduct
was not part of the escape offense. Tr. 79 (Feb. 20, 2020).
The Assistant U.S. Attorney’s revised sentencing request
sought an 18-month sentence, which was at the top of the
applicable Guidelines range. Defense counsel renewed his
request that the court impose a downward variance and
sentence Brevard to time served.
The district court, upon conducting an analysis of the 18
U.S.C. § 3553(a) factors on the record, found, among other
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things, that Brevard’s escape indicated a continuing “lack of
respect for the law and the criminal justice system,” Tr. 104
(Feb. 20, 2020), and that Brevard had a “clear history of
disregarding Court orders and judicial supervision,” id. at 106–
07, as well as a prior escape in 2014. The court also found that
despite receiving “probation only sentences, split sentences and
sentences of time served” in the past, Brevard had not “ma[de]
the most of [those] good opportunities,” instead continuing to
“reoffend frequently while on probation or supervised release
in a prior case.” Id. at 107. Therefore, the court explained that,
even if Brevard was correct about the proper interpretation of
Guideline 5K2.21, the court would “consider [the alleged
threats conduct] under [§] 3553(a) as a variance.” Id. at 79–80.
The court imposed a sentence of 30 months both as “an upward
departure under [G]uideline 5K2.21” and, alternatively, as an
“upward variance under [§] 3553(a).” Id. at 106. The sentence
was to run consecutive to any other sentence Brevard was
serving, followed by three years’ supervised release. Brevard
was also ordered to stay away from Ms. McQueen absent
Probation Office approval.
Brevard appeals.
II.
Pursuant to Gall v. United States, 552 U.S. 38, 51 (2007),
this court reviews sentencing challenges “for abuse of
discretion under a two-step analysis: first to ‘ensure that the
district court committed no significant procedural error, such
as . . . selecting a sentence based on clearly erroneous facts’;
and second, to ensure, ‘[a]ssuming that the district court’s
sentencing decision is procedurally sound,’ the sentence is
substantively reasonable.” United States v. Lawrence, 662
F.3d 551, 556 (D.C. Cir. 2011) (quoting Gall, 552 U.S. at 51).
A sentencing court commits procedural error if it bases its
7
sentence on an “incorrect legal interpretation[]” of the
Guidelines. United States v. Olivares, 473 F.3d 1224, 1226
(D.C. Cir. 2006). Further, where the sentencing court “decides
that an outside-Guidelines sentence is warranted, [t]he [judge]
must consider the extent of the deviation and ensure that the
justification is sufficiently compelling to support the degree of
the variance.” Gall, 552 U.S. at 50. The Supreme Court
viewed as “uncontroversial that a major departure should be
supported by a more significant justification than a minor one.”
Id.
A.
Guideline 5K2.21 provides, in relevant part, that a
sentencing court may “depart upward [from the applicable
Guidelines range] to reflect the actual seriousness of the
offense based on conduct . . . underlying a potential charge not
pursued in the case as part of a plea agreement or for any other
reason.” U.S. Sent’g Guidelines Manual § 5K2.21 (U.S.
Sent’g Comm’n 2018) (emphasis added).
On appeal, Brevard renews his argument that, in view of
the plain text of Guideline 5K2.21, the district court erred in
determining that an upward departure pursuant to the Guideline
was appropriate based on the uncharged threats. Appellant’s
Br. 19–26. Because that conduct was “discrete from and
unrelated to” his federal escape case, Brevard maintains that it
would have been improper under Federal Rule of Criminal
Procedure 8 to join a potential charge based on that conduct
with the escape case. Id. at 16.
The government responds that the district court’s
interpretation of Guideline 5K2.21 was correct because
conduct occurring while on escape, however remote in time
and dissimilar in character from the escape, necessarily
“reflect[s] the actual seriousness” of the escape offense. See
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Appellees’ Br. 25–28. Because escape is treated as a
continuing offense for some purposes, see United States v.
Bailey, 444 U.S. 394, 413 (1980), the government maintains
that any conduct while on escape is contemporaneous with, and
hence reflects the seriousness of, the escape offense. See id. at
26, 28.
But this interpretation is contrary to the plain text of
Guideline 5K2.21, which requires both that the departure
“reflect the actual seriousness of the offense” and that the
uncharged conduct “underl[ie] a potential charge not pursued
in the case.” U.S.S.G. § 5K2.21. “[T]he case” is Brevard’s
federal prosecution for escape, and given Congress’ division of
D.C. Code jurisdiction between the federal courts and the D.C.
courts, see generally Palmore v. United States, 411 U.S. 389,
392 n.2 (1973), the uncharged threats conduct was not a
“potential charge” that could have been “pursued” in the
federal escape case.
D.C. Code § 11-502(3) provides that the United States
District Court for the District of Columbia has jurisdiction over
a charge under the District of Columbia Criminal Code when it
“is joined in the same information or indictment with any
Federal offense.” This court has understood “joined” to mean
“properly joined” under Federal Rule of Criminal Procedure 8.
United States v. Richardson, 161 F.3d 728, 733 (D.C. Cir.
1998) (citing United States v. Jackson, 562 F.2d 789, 797 (D.C.
Cir. 1977)). By statute, then, the district court could have had
jurisdiction over the D.C. Code threats charges against Brevard
that were dismissed only if those charges were properly “joined
in the same information or indictment” with the federal escape
offense. D.C. Code § 11-502(3).
Rule 8(a) provides that joinder of offenses is proper when
the offenses “are of the same or similar character, or are based
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on the same act or transaction, or are connected with or
constitute parts of a common scheme or plan.” FED. R. CRIM.
P. 8(a). “In order for offenses discrete and dissimilar on their
faces to be properly joined under Rule 8, there must be some
logical relationship between them.” Richardson, 161 F.3d at
734 (citing United States v. Perry, 731 F.2d 985, 990 (D.C. Cir.
1984)). In Richardson, where a D.C. Code threats charge was
joined in an indictment for federal weapons offenses when the
only relationship between the threats and weapons offenses
was that the defendant made the threats to a law enforcement
officer after his arrest on the weapons charges, id. at 730, 733
n.10, this court held that the “‘but for’ sequential relationship”
between the offenses did not make them “logically related,”
and consequently “Rule 8 was strained beyond tolerable
limits,” id. at 734.
So too here, whereby federal court jurisdiction over D.C.
Code offenses required those offenses be joined in the federal
information or indictment. As Brevard maintains, the escape
was “an independent crime” that occurred on July 31, 2019,
when Brevard “left the halfway house and failed to return,”
while the alleged threats conduct occurred seven weeks later.
Appellant’s Br. 22. The separate offenses, therefore, are not
“based on the same act or transaction” and there was no
evidence they are “connected with or constitute parts of a
common scheme or plan.” FED. R. CRIM. P. 8(a). Nor are the
threats “of the same or similar character” as Brevard’s escape.
Id. The only connection between the threats and the escape
offense was temporal: the threats occurred while Brevard’s
escape status continued. That tenuous temporal relationship is
insufficient to meet even the “liberal[]” Rule 8 standard.
Richardson, 161 F.3d at 733.
Because the uncharged D.C. Code offenses could not have
been properly joined with Brevard’s federal escape charge, the
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threats conduct did not “underl[ie] a potential charge” that
could have been “pursued in the case.” U.S.S.G. § 5K2.21.
The district court therefore erred in departing upward pursuant
to Guideline 5K2.21 based on that uncharged conduct. 1
B.
As an alternative basis for the 30-month sentence, the
district court determined, pursuant to 18 U.S.C. § 3553(a), that
a variance from the applicable Sentencing Guidelines range
was appropriate. See United States v. Simpson, 430 F.3d 1177,
1184–85 (D.C. Cir. 2005); see also United States v. Ventura,
650 F.3d 746, 751 (D.C. Cir. 2011).
Brevard objects that the variance was based on Officer
Kasongo’s particularly unreliable hearsay testimony about the
threats incident, evidence that was not “sufficiently compelling
to support the degree of the variance,” Gall, 552 U.S. at 50.
Specifically, Brevard maintains that while hearsay may be
considered at sentencing, the district court failed to
appropriately weigh Officer Kasongo’s testimony in view of
Brevard’s inability to challenge it. In his view, such a
substantial variance — described by Brevard as “nearly
double” the top of the applicable Guidelines range, producing
a sentence more than twice as long as the one Brevard was
completing when he escaped, Appellant’s Br. 2 — required a
more compelling justification than the unconfronted hearsay
1
Because the D.C. Code charges were not “dismissed as part
of a plea agreement in the case,” the court has no occasion to consider
whether such charges can be considered by a sentencing judge under
Guideline 5K2.21 when those charges could not have been otherwise
“pursued in the case.” U.S.S.G. § 5K2.21.
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testimony on which the district court relied. See Appellant’s
Br. 31–32.
Given our deferential standard of review of a district
court’s balancing of the § 3553(a) factors, the court “cannot
conclude that the [alternative] sentence was substantively
unreasonable.” United States v. Williamson, 903 F.3d 124, 136
(D.C. Cir. 2018). The district court conducted a § 3553(a)
analysis on the record, basing the variance in part on Brevard’s
criminal history demonstrating an inability to comply with
court orders. Apart from the uncharged threats, the court
referred specifically to Brevard’s prior escape, his numerous
probation violations and failures to abide by release conditions,
and his failure to “mak[e] the most” of the “numerous breaks”
he had been given after previous offenses. Sent. Tr. 107. In its
alternative justification for the sentence, the court could
properly rely on those factors in Brevard’s criminal history,
without regard to the uncharged threats conduct, to conclude
that the top of the Sentencing Guidelines range did not “fully
account for” the seriousness of Brevard’s repeated failure to
conform his conduct to court orders and the law. United
States v. Brown, 808 F.3d 865, 873 (D.C. Cir. 2015); see 18
U.S.C. § 3661; cf. U.S.S.G. § 5K2.0 cmt. background.
For much the same reason, Brevard’s concern that the
variance was inappropriately influenced by the erroneous
departure under Guideline 5K2.21 is misplaced. Brevard’s
criminal history provided an independent ground for the
variance inasmuch as that history included not only firearms
offenses and threats, but also a prior escape, assaulting and
resisting law enforcement, and tampering with court-ordered
supervision equipment.
Accordingly, the district court did not abuse its discretion
in applying a variance upon concluding that the Guidelines
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range did not accurately reflect the seriousness of Brevard’s
continued conduct. See Brown, 808 F.3d at 873; 18 U.S.C.
§ 3553(a)(1)–(4). This court may affirm the district court’s
alternative sentence based on a variance on that ground alone,
see Simpson, 430 F.3d at 1185, and the district court’s
judgment is affirmed.