United States v. Rodney Brown

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4415

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

RODNEY ANTAWAN BROWN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (5:11-cr-00218-H-2)

Submitted: March 25, 2013 Decided: May 7, 2013

Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Christopher B. Shella, SHELLA, HARRIS & AUS, PC, Durham, North
Carolina, for Appellant. Felice McConnell Corpening, OFFICE OF
THE UNITED STATES ATTORNEY, Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Rodney Antawan Brown was found guilty, after a jury

trial, of one count of conspiracy to commit armed bank robbery,

in violation of 18 U.S.C. § 371 (2006); one count of armed bank

robbery and aiding and abetting, in violation of 18 U.S.C.

§§ 2113(a), (d), and 2 (2006); and one count of use and carrying

of a firearm during and in relation to a crime of violence and

aiding and abetting, in violation of 18 U.S.C.

§ 924(c)(1)(A)(ii) and 2 (2006). The district court sentenced

Brown to 384 months’ imprisonment. Brown now appeals. In

accordance with Anders v. California, 386 U.S. 738 (1967),

Brown’s attorney has filed a brief certifying that there are no

meritorious issues for appeal but questioning the substantive

reasonableness of Brown’s sentence. Brown filed a pro se brief

alleging ineffective assistance of counsel, insufficient

evidence, and a Brady * violation. The Government has declined to

file a brief. Because we find no meritorious grounds for

appeal, we affirm.

Counsel for Brown questions whether Brown’s sentence

was reasonable. We review Brown’s sentence for reasonableness,

applying a “deferential abuse-of-discretion standard.” Gall v.

United States, 552 U.S. 38, 52 (2007). We begin by reviewing

*
Brady v. Maryland, 373 U.S. 83 (1963).

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the sentence for significant procedural error, including

improper calculation of the Guidelines range, failure to

consider sentencing factors under 18 U.S.C. § 3553(a) (2006),

sentencing based on clearly erroneous facts, or failure to

adequately explain the sentence imposed. Id. at 51. Only if we

find a sentence procedurally reasonable can we consider

substantive reasonableness. United States v. Carter, 564 F.3d

325, 328 (4th Cir. 2009). Here, Brown’s within-Guidelines

sentence is presumed reasonable, United States v. Powell, 650

F.3d 388, 395 (4th Cir.), cert. denied, 132 S. Ct. 350 (2011),

and we find no procedural or substantive error in its

imposition.

As to the challenges raised in Brown’s pro se

supplemental brief, we find no error. The evidence was

sufficient to support his convictions. The evidence purportedly

withheld by the Government—records of cell phone call times—is

not exculpatory, so there is no Brady violation. In addition,

we have held that “there is no Brady violation if the defense is

aware of the evidence in time to reasonably and effectively use

it at trial.” United States v. Jeffers, 570 F.3d 557, 573 (4th

Cir. 2009). Because Brown admits in his pro se brief that he

knew of the phone records prior to trial, he does not allege a

cognizable Brady claim. Finally, because the record does not

conclusively establish that counsel was ineffective, Brown’s

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claims to that effect may only be raised in a motion pursuant to

28 U.S.C.A. § 2255.

In accordance with Anders, we have reviewed the record

in this case and conclude there are no meritorious issues for

appeal. Therefore, we affirm Brown’s conviction and sentence.

This court requires counsel to inform Brown, in writing, of his

right to petition the Supreme Court of the United States for

further review. If Brown requests that a petition be filed but

counsel believes such a petition would be frivolous, counsel may

move in this court for leave to withdraw from representation.

Counsel’s motion must state that a copy thereof was served on

Brown. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials

before this court and argument would not aid in the decisional

process.

AFFIRMED