United States v. Brown

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4741

TIMOTHY EARL BROWN,

Defendant-Appellant.



Appeal from the United States District Court

for the District of South Carolina, at Greenville.

Henry M. Herlong, Jr., District Judge.

(CR-01-958)

Submitted: June 25, 2003

Decided: July 9, 2003

Before WILKINSON and NIEMEYER, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

COUNSEL

Andrew R. Mackenzie, BARRETT MACKENZIE, L.L.C., Green-

ville, South Carolina, for Appellant. Regan Alexandra Pendleton,

Assistant United States Attorney, Greenville, South Carolina, for

Appellee.

2 UNITED STATES v. BROWN

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

OPINION

PER CURIAM:

Timothy Earl Brown pled guilty to conspiracy to possess with

intent to distribute more than five kilograms of cocaine and more than

fifty grams of cocaine base, in violation of 21 U.S.C. § 846 (2000).

The district court adopted the findings in the presentence investiga-

tion report and sentenced Brown to 135 months of imprisonment, to

be followed by a five-year term of supervised release.

Brown’s counsel filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), stating that there were no meritorious grounds for

appeal but raising five issues: (1) whether the district court erred in

denying Brown’s request for a downward adjustment based on his

minor role in the offense; (2) whether the district court erred by

enhancing his offense level for possession of a firearm; (3) whether

the district court erred in declining to compel the Government to

move for a substantial assistance departure; (4) whether the district

court erred in refusing to depart downward based on Brown’s sen-

tencing entrapment and manipulation theories; and (5) whether the

district court erred by refusing to depart downward based on Brown’s

post-offense rehabilitation efforts. Brown filed a pro se supplemental

brief reiterating issues (1) and (5). We affirm in part, vacate in part,

and remand for further proceedings.

Both Brown and his counsel have raised the issue of whether the

district court clearly erred in denying Brown’s request for a down-

ward adjustment for his minor role in the offense, pursuant to U.S.

Sentencing Guidelines Manual § 3B1.2 (2001). Brown admitted to

selling drugs on two occasions, and a defendant who sells drugs in a

drug conspiracy is generally not a minor participant. See USSG

§ 3B1.2(b), comment. (n.5); United States v. Brooks, 957 F.2d 1138,

1149 (4th Cir. 1992). We therefore conclude that the district court did

not clearly err in denying Brown’s request for a downward adjustment

UNITED STATES v. BROWN 3

for his role in the offense. See United States v. Perkins, 108 F.3d 512,

518 (4th Cir. 1997) (stating standard of review).

Next, Brown’s counsel raises the issue of whether the district court

erred in applying a two-level enhancement to Brown’s offense level

for possessing a firearm during a drug offense, pursuant to USSG

§ 2D1.1(b)(1). Brown argues that the Government failed to prove that

he possessed the firearm because he was not the owner of the vehicle

where the weapon was found, he was not in the vehicle when the

weapon was found, and the weapon was not in his actual possession

when it was found. Although Brown may not have owned the vehicle

where the weapon was found, his possession of the vehicle’s key and

the location of the vehicle at the state probation office’s parking lot,

where Brown was arrested, demonstrated that he had control of the

vehicle. See United States v. Gallimore, 247 F.3d 134, 137 (4th Cir.

2001) (defining constructive possession). Further, the handgun was

found in the vehicle next to a large amount of marijuana. See USSG

§ 2D1.1, comment. (n.3); United States v. McAllister, 272 F.3d 228,

234 (4th Cir. 2001). Therefore, we conclude that the district court

properly applied the enhancement for possession of a firearm during

the drug offense.

Brown’s counsel also raises the issue of whether the district court

erred in declining to compel the Government to move for a substantial

assistance departure, pursuant to USSG § 5K1.1, p.s. There was no

evidence (and Brown does not argue) that the Government’s decision

not to move for a substantial assistance departure was based on an

unconstitutional motive or was unrelated to a legitimate government

end. See Wade v. United States, 504 U.S. 181, 185-86 (1992). We

therefore find that the district court properly refused to compel the

Government to move for a substantial assistance departure.

Brown’s counsel directs our attention to whether Brown was enti-

tled to a downward departure because police engaged in sentencing

entrapment and sentencing manipulation by specifically demanding

crack cocaine in two controlled buys when Brown normally sold mar-

ijuana, and by making two controlled buys rather than one. Brown’s

sentencing entrapment claim fails because he did not claim that he

lacked a predisposition to committing the drug offense. See United

States v. Jones, 18 F.3d 1145, 1152-53 (4th Cir. 1994). Further, his

4 UNITED STATES v. BROWN

sentencing manipulation claim also fails because it is "not outrageous

for the government to continue to purchase narcotics from willing

sellers even after a level of narcotics relevant for sentencing purposes

has been sold." Id. at 1155. Despite Brown’s contention that he nor-

mally sold marijuana, there was no evidence suggesting that Brown

was not a willing seller of crack cocaine.

Finally, both Brown and his counsel maintain that Brown’s com-

pletion of a drug counseling program prior to sentencing entitled him

to a downward departure. A sentencing court’s decision not to depart

is not reviewable unless the court’s decision is based on a mistaken

view that it lacks authority to do so. United States v. Brock, 108 F.3d

31, 33 (4th Cir. 1997). In Brock, we held that exceptional post-offense

rehabilitation is a possible ground for departure. See id. at 35. In so

holding, we recognized that our previous holding in United States v.

Van Dyke, 895 F.2d 984, 986-87 (4th Cir. 1990), that post-offense

rehabilitation can never form a proper basis for departure, had been

overruled.

In this case, the district court relied on the probation officer’s mis-

taken belief that the court could not depart downward based on post-

offense rehabilitation. Although the district court did not expressly

give its reasons for denying Brown’s request to depart downward, it

is clear that the court accepted the probation officer’s statement that

the court could not depart downward for post-offense rehabilitation

due to our decision in Van Dyke. We therefore vacate this portion of

Brown’s sentence and remand to the district court for consideration

of whether Brown’s rehabilitation efforts were exceptional enough to

warrant a downward departure. We express no view on the merits of

this question.

In accordance with Anders, we have reviewed the entire record in

this case and have found no other meritorious issues for appeal. We

therefore affirm Brown’s conviction. We vacate Brown’s sentence

with regard to the district court’s refusal to depart based upon post-

offense rehabilitation efforts and remand for further proceedings con-

sistent with this opinion. In all other respects, we affirm Brown’s sen-

tence. 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

UNITED STATES v. BROWN 5

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 IN PART, VACATED

IN PART, AND REMANDED