United States v. Brown

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4288

GARY LEON BROWN,

Defendant-Appellant.



Appeal from the United States District Court

for the Middle District of North Carolina, at Greensboro.

Frank W. Bullock, Jr., District Judge.

(CR-89-92)

Submitted: September 29, 2000

Decided: October 19, 2000

Before WILKINS, LUTTIG, and WILLIAMS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

COUNSEL

Bryan Emery Gates, Jr., Winston-Salem, North Carolina, for Appel-

lant. Walter C. Holton, Jr., United States Attorney, Harry L. Hob-

good, Assistant United States Attorney, Greensboro, North Carolina,

for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

2 UNITED STATES v. BROWN

OPINION

PER CURIAM:

Gary Leon Brown was convicted in 1989 of conspiring to possess

cocaine and crack cocaine with intent to distribute and of distributing

crack. The district court sentenced Brown to imprisonment for 235

months. We vacated and remanded for resentencing because the dis-

trict court failed to make an independent finding of perjury necessary

to support the enhancement Brown received for obstruction of justice.

See U.S. Sentencing Guidelines Manual § 3C1.1 (1998); see also

United States v. Dunnigan, 507 U.S. 87, 95 (1993). On remand, the

district court found that the obstruction of justice enhancement was

not appropriate and sentenced Brown to 223 months imprisonment—

a twelve month reduction from his original sentence. Brown’s attor-

ney has filed a brief in accordance with Anders v. California, 386

U.S. 738 (1967), addressing whether the district court’s decision to

impose a sentence at the top of the guideline range was based on vin-

dictiveness and whether the court should have departed downward

based on Brown’s post-offense rehabilitation. Counsel concedes,

however, there are no meritorious issues for appeal. Brown has filed

a supplemental pro se brief in which he essentially restates his attor-

ney’s first claim.

Brown first claims that the district court’s decision to impose a sen-

tence at the top of the guidelines range was based on vindictiveness

because he successfully attacked his original sentence. Because the

sentence Brown received on remand was less onerous than that origi-

nally imposed, the presumption of vindictiveness provided under

North Carolina v. Pearce, 395 U.S. 711, 725 (1969), does not apply.

See United States v. Kincaid, 964 F.2d 325, 328 (4th Cir. 1992) (hold-

ing that the presumption of vindictiveness applies only where "the

new sentence is actually harsher than that imposed prior to [the] suc-

cessful appeal") (internal quotation omitted).

Second, Brown challenges the district court’s refusal to depart

downward for post-offense rehabilitation. A defendant may not

appeal a district court’s refusal to depart downward at sentencing

unless the court’s refusal was based on a mistaken view that it lacked

the authority to depart. See United States v. Bayerle, 898 F.2d 28, 31

UNITED STATES v. BROWN 3

(4th Cir. 1990). Here, there is no evidence that the district court mis-

apprehended its authority to depart downward; rather, its determina-

tion was based upon the court’s finding that Brown’s post-conviction

behavior was insufficient to warrant such a departure. See United

States v. Brock, 108 F.3d 31, 35 (4th Cir. 1997) (holding that extraor-

dinary and unusual post-offense rehabilitation is an appropriate

ground for departure).

In accordance with the requirements of Anders, we have examined

the entire record in this case and find no meritorious issues for appeal.

This court requires that counsel inform his client, in writing, of his

right to petition the Supreme Court of the United States for further

review. If the client requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel may

move in this court for leave to withdraw from representation. Coun-

sel’s motion must state that a copy thereof was served on the client.

We dispense with oral argument because the facts and legal conten-

tions are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED