United States v. Jeffrey Paul Brown

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-11903 ELEVENTH CIRCUIT
APRIL 25, 2012
Non-Argument Calendar
JOHN LEY
________________________
CLERK

D. C. Docket No. 4:10-cr-00362-AKK-JEO-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JEFFREY PAUL BROWN,
a.k.a. Larry Brown,

Defendant-Appellant.

_________________________________________

Appeal from the United States District Court
for the Northern District of Alabama
_________________________________________

(April 25, 2012)

Before EDMONDSON, HULL, and BLACK, Circuit Judges.

PER CURIAM:
Jeffrey Paul Brown appeals his 27-month sentence for failure to register as a

sex offender, in violation of 18 U.S.C. § 2250(a). No reversible error has been

shown; we affirm.

Brown was convicted of child molestation in Georgia in 1996. Although

Brown registered properly as a sex offender following his release from prison, he

later stopped complying with the registration requirements. As a result, Brown

was convicted in Georgia and was sentenced to three years’ probation for failure to

failure to comply with the sex offender registration requirements -- Brown was

arrested in connection with this case. In addition to the federal conviction at issue

on appeal, Brown was also convicted by both Alabama and Georgia for failure to

Alabama conviction and to a concurrent term of 12 years’ imprisonment for his

Georgia conviction. On Brown’s federal conviction, the district court imposed a

27-month sentence to run consecutive to Brown’s existing state sentences.

On appeal, Brown argues that the district court erred under U.S.S.G. §

5G1.3(b) in imposing his federal sentence consecutive to his undischarged state

2
sentences when all three convictions arose from the same underlying conduct.

Because Brown failed to raise this objection in the district court, we review only

for plain error.1 See United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006)

(stating that when a defendant’s objection “is not clear enough to inform the

district court of the legal basis for the objection, . . . the objection is not properly

preserved.”).

Under section 5G1.3(b), when a defendant has an undischarged sentence for

an “offense that is relevant to the instant offense and resulted in an increase in the

offense level of the instant offense, the district court should . . . order that the

instant sentence run concurrently with the sentence for the prior offense.” United

States v. Knight, 562 F.3d 1314, 1329 (11th Cir. 2009) (emphasis added) (citing

section 5G1.3(b)). Because Brown’s state convictions were not used to increase

his offense level in this case, section 5B1.3(b) did not apply.2 Thus, the district

court had discretion to impose Brown’s sentence “to run concurrently, partially

1
Brown failed to object to the statement in the Presentence Investigation Report (“PSI”)
that, pursuant to U.S.S.G. § 5G1.3(c), Brown’s sentence could “be imposed to run concurrently,
partially concurrently, or consecutively” to his existing undischarged state sentences. And
although Brown requested that the district court impose his sentence concurrent to his existing
sentences, he presented no argument in support of his request and failed to object to the district
court’s final sentence.
2
Although Brown received three criminal history points as a result of his Georgia
conviction, his offense level was not increased.

3
concurrently, or consecutively to the prior undischarged term of imprisonment to

achieve a reasonable punishment for the instant offense.” See U.S.S.G. § 5G1.3(c).

Brown also argues that his sentence procedurally is unreasonable because

the district court failed to explain its reasons for imposing a consecutive sentence

and failed to indicate that it had considered the 18 U.S.C. § 3553(a) factors in

imposing a consecutive sentence.3 We review “all sentences . . . for reasonableness

under an abuse of discretion standard.” United States v. Irey, 612 F.3d 1160, 1186

(11th Cir. 2010) (en banc). Although plain error applies where -- as in this case --

the defendant failed to raise an issue below, see United States v. Rodriguez, 398

F.3d 1291, 1298 (11th Cir. 2005), we have not applied plain error to an inquiry

about the reasonableness of a sentence. And it is unnecessary to decide whether

plain error applies in this case because Brown’s arguments fail under either

standard.

A sentence might be procedurally unreasonable if the district court fails to

consider the factors set forth in section 3553(a) or fails to explain adequately the

chosen sentence.4 United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir.

3
Brown does not challenge the procedural or substantive reasonableness of the length of
his 27-month sentence. Instead, his argument on appeal is limited to the reasonableness of the
consecutive nature of his sentence.
4
Under section 3553(a), a district court must consider the nature and circumstances of the
offense, the history and characteristics of the defendant, the need for the sentence to provide

4
2008). In explaining a sentence, “[t]he sentencing judge should set forth enough to

satisfy the appellate court that he has considered the parties’ arguments and has a

reasoned basis for exercising his own legal decisionmaking authority.” Rita v.

United States, 127 S.Ct. 2456, 2468 (2007).

That the district court considered the section 3553(a) factors in imposing

Brown’s consecutive sentence is clear. At the sentencing hearing, the court stated

that the sentence imposed was reasonable in the light of the section 3553(a) factors

and identified specifically those factors set forth in subsections (a)(1) and

(a)(2)(A), (B), and (C). Because the court addressed the section 3553(a) factors

immediately after announcing that Brown’s sentence would run consecutive to his

state sentences, we reject Brown’s argument that the court considered the section

3553(a) factors only in determining the length of his sentence, but not in

determining that his sentence would run consecutively.

We are also satisfied that the district court considered the parties’ arguments

and had a reasoned basis for imposing a consecutive sentence. See Rita, 127 S.Ct.

at 2468. In considering Brown’s request for a concurrent sentence, the court

inquired about the length of Brown’s state sentences and considered both parties’

adequate deterrence, respect for the law, and protection of the public, the defendant’s medical
and educational needs, the advisory guideline range, the Sentencing Commission’s policy
statements, and the need to avoid unwarranted sentencing disparities and provide restitution. See
18 U.S.C. § 3553(a)(1)-(7).

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arguments on the amount of time that Brown would likely serve under each of

those sentences.

Brown also argues that his sentence substantively is unreasonable because

his consecutive state and federal sentences effectively exceeded both the statutory

maximum sentence and the sentencing guideline range for his federal offense. But

statutory maximum sentences and sentencing guideline ranges apply only to the

instant offense, not to an aggregate sentence resulting from consecutive sentences.

Thus, contrary to Brown’s argument, his 27-month sentence for the instant offense

is both well-below the 10-year statutory maximum sentence for his offense and at

the low end of the 27 to 33-month advisory guideline range.5 It is also well-

established that federal courts can impose a federal sentence to run consecutive to a

defendant’s state sentence. See United States v. Ballard, 6 F.3d 1502, 1506 (11th

Cir. 1993). And when multiple sentences are imposed at different times, a

statutory presumption exists that the sentences will run consecutively. See 18

U.S.C. § 3584; Ballard, 6 F.3d at 1506. Thus, Brown has failed to demonstrate that

his consecutive sentence is unreasonable.

5
We note that -- due to a typographical error in the PSI -- the district court determined
that Brown’s total offense level was 12 instead of 13. As a result of this error, the court
calculated Brown’s guideline range as 27 to 33 months’ imprisonment instead of 30 to 37
months’ imprisonment. Because neither party raises this issue on appeal, we need not address it.

6
AFFIRMED.