United States v. Brown

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 6, 2007 Decided February 29, 2008

No. 03-3102

UNITED STATES OF AMERICA,

APPELLEE

v.

MELVIN B. BROWN,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 03cr00026-01)

Beverly G. Dyer, Assistant Federal Public Defender, argued

the cause for the appellant. A.J. Kramer, Federal Public

Defender, was on brief. Neil H. Jaffee, Assistant Federal Public

Defender, entered an appearance.

Allison L. Barlotta, Assistant United States Attorney,

argued the cause for the appellee. Jeffrey A. Taylor, United

States Attorney, and Roy W. McLeese III, Mary B. McCord,

Sarah T. Chasson and Ellen C. Epstein, Assistant United States

Attorneys, were on brief.

Before: HENDERSON and TATEL, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

2

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: A jury found

appellant Melvin B. Brown (Brown) guilty of unlawful

possession of a firearm by a convicted felon in violation of 18

U.S.C. § 922(g). Brown was sentenced to 96 months’

imprisonment and three years’ supervised release. Brown now

appeals his sentence on the grounds that the district court erred

when it relied on Brown’s acquitted conduct in imposing a four

level enhancement and erred again when it considered Brown’s

arrest record in selecting a sentence near the high end of the

United States Sentencing Guidelines (Guidelines) range. For the

reasons set forth below, we affirm the district court’s judgment.

I.

On the night of December 22, 2002, officers of the

Metropolitan Police Department (MPD) set up an observation

post in the 2500 block of Pomeroy Road, N.E. in the District.

The MPD officers observed a group of men—including

Brown—drinking beer in a parking lot while other cars pulled

into the parking lot, apparently to buy drugs from them. When

the group began to disperse, the officers approached in several

police cars to detain them. Brown got into a Ford Focus and

tried to leave the parking lot but was blocked by one of the

police cars. Brown then attempted to flee on foot but was

chased down by an MPD officer and arrested. While pursuing

Brown, the MPD officer observed Brown remove a black

handgun from his pocket and throw it under a van in the parking

lot. During the subsequent inventory search, the officers

discovered a small glass vial containing 20 milliliters of

phencyclidine (PCP) in the front console area of the Ford Focus.

On January 23, 2003, Brown was indicted on one count of

felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g), one count of unlawfully possessing with intent to

distribute PCP in violation of 21 U.S.C. §§ 841(a)(1) and

3

(b)(1)(C) and one count of possessing a firearm during a drug

trafficking offense in violation of 18 U.S.C. § 924(c)(1).

Following a jury trial, Brown was convicted of the section

922(g) count but acquitted of the other two counts.

On August 19, 2003, the district court sentenced Brown to

96 months’ incarceration and three years’ supervised release.

The court sentenced Brown at the high end of the Guidelines

range based on several factors. First, it emphasized that “[t]his

is a serious offense.” Id. at 24. Second, it explained that “the

fact that the conditions of release imposed prior to trial were

violated, requiring that the defendant be held pending trial,”

influenced its decision. Id. Next, the court considered Brown’s

“lengthy record of contact with the criminal justice system

replete with serious drug and weapons charges, including a

serious conviction in addition to this conviction.” Id. at 24-25.

It then added that “[t]he juvenile convictions and arrests are

relevant in my view, even though they are not part of the

criminal history calculation.” Id. at 25 (emphasis added).

Finally, the court stated that Brown’s 2001 probation violation

was also “relevant.” Id. The court prefaced its explanation with

the statement that it did not intend to impose sentence until

counsel were given “the chance to point out any error that they

believe exists.” Id. at 24. Defense counsel did not object before

sentence was imposed. Id. at 27.

Brown filed a timely notice of appeal and on May 9, 2005,

we granted the parties’ joint motion to remand pursuant to

United States v. Coles, 403 F.3d 764 (D.C. Cir. 2005). United

States v. Brown, 455 F.3d 267 (D.C. Cir. 2005).1 On remand,

1

The “Coles remand” was necessitated by the Supreme Court’s

watershed opinion in United States v. Booker, 543 U.S. 220 (2005).

Booker includes a “Substantive Opinion,” addressing the merits of the

Sixth Amendment issue, and a “Remedy Opinion.” See Coles, 403

F.3d at 766. In the Substantive Opinion the Court held that “[a]ny fact

4

Brown argued for the first time that the district court had erred

when it considered Brown’s arrest record in selecting a sentence

within the Guidelines range. The district court rejected

Brown’s argument and concluded that “[t]he same

considerations that justified the Court’s exercise of discretion to

sentence Brown near the top of the Guidelines range when the

Guidelines were still mandatory also support the Court's

conclusion that, had it sentenced Brown using the Guidelines in

an advisory fashion and taking into account all of the section

3553(a) factors, the same sentence would have been

appropriate.” United States v. Brown, 439 F. Supp. 2d 134, 139

(D.D.C. 2006). This appeal followed.

II.

“[A] sentence within a properly calculated Guidelines range

is entitled to a rebuttable presumption of reasonableness.”

United States v. Dorcely, 454 F.3d 366, 376 (D.C. Cir. 2006);

(other than a prior conviction) which is necessary to support a

sentence exceeding the maximum authorized by the facts established

by a plea of guilty or a jury verdict must be admitted by the defendant

or proved to a jury beyond a reasonable doubt.” 543 U.S. at 224. In

the Remedy Opinion, the Court “sever[ed] and excise[d]” two

provisions of the Sentencing Reform Act of 1984, Pub. L. 98-473, 98

Stat. 1987 (1984): subsection 3553(b)(1), making use of the

Guidelines mandatory, and section 3742(e), “set[ting] forth standards

of review on appeal.” Id. at 259. It instructed that “Section 3553(a)

remains in effect, and sets forth numerous factors that guide

sentencing . . . [and] [t]hose factors in turn will guide appellate courts,

as they have in the past, in determining whether a sentence is

unreasonable.” Id. at 261. Booker applied to all then-pending appeals

“on direct review.” Id. at 268. As discussed more fully infra, the

Coles remand instructed the sentencing court to “determine whether

it would have imposed a different sentence materially more favorable

to the defendant had it been fully aware of the post-Booker sentencing

regime.” Coles, 403 F.3d at 770.

5

see also Gall v. United States, 128 S.Ct. 586, 597 (2007)

(“Regardless of whether the sentence imposed is inside or

outside the Guidelines range, the appellate court must review the

sentence under an abuse-of-discretion standard. . . . If the

sentence is within the Guidelines range, the appellate court may,

but is not required to, apply a presumption of reasonableness.”);

Rita v. United States, 127 S.Ct. 2456, 2462 (2007) (appellate

court “may apply a presumption of reasonableness to a district

court sentence that reflects a proper application of the

Sentencing Guidelines”). Brown’s base offense level for his

felon-in-possession conviction was 20. See U.S.S.G.

§ 2K2.1(a)(4)(A). The district court then made a two-point

upward adjustment because the firearm was stolen, see id.

§ 2K2.1(b)(4), and a four-point upward adjustment because he

possessed the firearm in connection with another felony offense,

see id. § 2K2.1(b)(6), for a total offense level of 26. With

Brown’s criminal history category III, the offense level resulted

in a Guidelines range of 78 to 97 months. See id. ch. 5, pt. A.

As noted, the court sentenced Brown within the Guidelines

range to 96 months’ imprisonment. Although Brown does not

expressly challenge the reasonableness of the sentence, Brown

contends that the district court erred by considering his acquitted

conduct and his arrest record in sentencing him at the high end

of the Guidelines range.

A. Brown’s Acquitted Conduct

Brown argues that the district court erred in imposing a

four-point upward adjustment to his base offense level based on

his acquitted conduct. Applying de novo review, we held in

Dorcely that “a sentencing court may base a sentence on

acquitted conduct without offending the defendant’s Sixth

Amendment right to trial by jury.” 454 F.3d at 371; see also

United States v. Watts, 519 U.S. 148, 156 (1997) (sentencing

court’s consideration of acquitted conduct does not violate

double jeopardy clause). We concluded that “consideration of

6

acquitted conduct violates the Sixth Amendment only if the

judge imposes a sentence that exceeds what the jury verdict

authorizes.” 454 F.3d at 371. Brown’s conviction on the felon-

in-possession count authorized a sentence of imprisonment of

“not more than 10 years.” 18 U.S.C. § 924(a)(2). Because he

was sentenced to only 96 months’ imprisonment, the district

court was authorized to rely on Brown’s acquitted conduct.

B. Brown’s Arrest Record

Brown also contends that the district court erred by

considering his arrest record in determining the sentence it

imposed. Before reaching the merits of Brown’s argument, we

address the applicable standard of review for this claim.

1. Standard of Review

According to the Government, the district court’s reliance

on Brown’s arrest record should be reviewed for plain error

because Brown failed to object to the use of his arrest record at

his sentencing. Brown counters that we should review his claim

de novo because Brown objected to the use of his arrest record

at the Coles remand hearing.

We have held post-Booker that a sentencing judge who, pre-

Booker, applied the Guidelines as mandatory committed a non-

constitutional error. See United States v. Carson, 455 F.3d 336,

383 (D.C. Cir. 2006) (“We have distinguished between those

misapplications of the Guidelines in which a sentencing court

increases a sentence beyond the maximum that could have been

imposed based solely on the facts reflected in the jury verdict,

which, because they violate the Sixth Amendment are

constitutional Booker errors, and those cases in which the

court’s error was only the mandatory, as opposed to advisory,

treatment of the Guidelines. We call these latter errors

non-constitutional Booker errors . . . .”) (quotation omitted). If

the defendant did not preserve his Sixth Amendment challenge

to the Guidelines as mandatory by objecting at sentencing, as

7

Brown did not, we apply plain error review and assess “whether

there would have been a materially different result, more

favorable to the defendant, had the sentence been imposed in

accordance with the post-Booker sentencing regime.” Id.

(quoting Coles, 403 F.3d at 767).2 According to Carson, there

are three types of sentencing appeals affected by Booker:

First, “there undoubtedly will be some cases in which

a reviewing court will be confident that a defendant has

suffered no prejudice” such as where the judge imposes

a “sentence at the statutory maximum and [states] that

if he could he would have imposed an even longer

sentence.” [Coles, 403 F.3d] at 769 (citation omitted).

In those cases, we affirm the sentence. Second, “there

will be some cases in which we are confident that the

defendant suffered prejudice [such as] where the . . .

judge indicated on the record that, but for the

Guidelines, she would have imposed a lower

sentence.” Id. In those cases, we remand for full

resentencing. Third, as was the case in Coles, there

will be cases where “the record simply is not sufficient

for an appellate court to determin[e] prejudice with any

confidence.” Id.

Carson, 455 F.3d at 383-84 (footnote omitted) (second alteration

added).

In the third category of cases—where the record is not

sufficient to gauge prejudice vel non—we “remand the record”

only and retain jurisdiction. Coles, 403 F.3d at 765, 770-71. On

record remand, the district court is directed to “determine

whether it would have imposed a different sentence materially

2

If the defendant did preserve his Sixth Amendment challenge by

objecting at sentencing, we do not use the Coles remand. United

States v. Boyd, 435 F.3d 316, 319 (D.C. Cir. 2006).

8

more favorable to the defendant had it been fully aware of the

post-Booker sentencing regime.” Id. at 770. The district court

is not required to determine what the sentence would have been

in making this determination and “‘”need not” require the

presence of the Defendant.’” Id. (quoting United States v.

Paladino, 401 F.3d 471, 484 (7th Cir. 2005) (quoting United

States v. Crosby, 397 F.3d 103, 120 (2d Cir. 2005) (quoting Fed.

R. Crim. P. 43(b)(3)))). The remand thus serves the purely

informational purpose of informing us whether the sentencing

judge would have imposed “a different sentence materially more

favorable to the defendant.” Id. If the sentencing judge

concludes that he would have imposed a sentence materially

more favorable to the defendant had the Guidelines been

advisory only, we vacate the sentence and the district court then

conducts a resentencing. United States v. Gomez, 431 F.3d 818,

823 (D.C. Cir. 2005).

As noted, after Brown appealed his sentence, we granted the

parties’ joint motion for a Coles remand. Brown, 455 F.3d at

267. Because a Coles remand is only a record remand rather

than a resentencing, Brown’s original sentencing was his only

sentencing and his failure to object to the use of his arrest record

at that time means that we review at this time for plain error

only. See In re Sealed Case, 349 F.3d 685, 690 (D.C. Cir. 2003)

(“[P]lain error review is appropriate when the appellant fails to

raise a claim at his sentencing hearing or when he fails to object

to the district court’s ruling.”) (citing Fed. R. Crim. P. 52(b)).3

3

Even if we had ordered a remand for resentencing, the district

court might not have been able to consider Brown’s argument

regarding his arrest record. See United States v. Whren, 111 F.3d 956,

960 (D.C. Cir. 1997) (“[U]pon a resentencing occasioned by a remand,

unless the court of appeals expressly directs otherwise, the district

court may consider only such new arguments or new facts as are made

newly relevant by the court of appeals’ decision—whether by the

reasoning or by the result.”).

9

Plain error exists “‘where (1) there is error (2) that is plain

and (3) that affects substantial rights, and (4) the court of

appeals finds that the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.’” United

States v. Andrews, 479 F.3d 894, 896 (D.C. Cir. 2007) (quoting

United States v. Johnson, 437 F.3d 69, 74 (D.C. Cir. 2006)).

“An error ‘affect[s] substantial rights’ if it is ‘prejudicial.’”

United States v. Williams, 488 F.3d 1004, 1008 (D.C. Cir. 2007)

(quoting United States v. Olano, 507 U.S. 725, 734 (1993))

(alteration in Olano). “To establish prejudice in the sentencing

context, [the defendant] ‘must show a reasonable likelihood that

the sentencing court’s obvious errors affected his sentence.’” Id.

(quoting United States v. Saro, 24 F.3d 283, 288 (D.C. Cir.

1994)).

2. The Merits

The district court imposed a sentence at the high end of the

Guidelines range based on its consideration of numerous factors,

including Brown’s arrest record. Sentencing Tr. 24-25, Aug. 19,

2003. Brown argues that the district court erred in considering

his arrest record where the record lacked any evidence that

Brown had in fact committed the conduct for which he was

arrested. Brown also asserts that section 4A1.3 of the

Guidelines expresses a policy against reliance on arrest records.

Finally, Brown contends that “without evidence showing by a

preponderance that he committed the conduct for which he was

charged . . . the arrest record is irrelevant to the appropriate

sentence.” Appellant’s Br. 15.

“In determining the sentence to impose within the

guideline[s] range, or whether a departure from the guidelines

is warranted, the court may consider, without limitation, any

information concerning the background, character, and conduct

of the defendant, unless otherwise prohibited by law.” U.S.S.G.

§ 1B1.4 (emphasis added); see also 18 U.S.C. § 3661 (“No

limitation shall be placed on the information concerning the

10

background, character, and conduct of a person convicted of an

offense which a court of the United States may receive and

consider for the purpose of imposing an appropriate sentence.”)

(emphasis added). The all-inclusive language of both the

Guidelines and 18 U.S.C. § 3661 makes clear that a defendant’s

arrest record may properly be considered as part of his

“background.”

Brown nonetheless contends that U.S.S.G. § 4A1.3(a)(3),

which provides that “[a] prior arrest record itself shall not be

considered for purposes of an upward departure,” and the

holding in United States v. Joaquin, 326 F.3d 1287 (D.C. Cir.

2003), that an earlier version of section 4A1.3 also prohibited

reliance on an arrest record for a downward departure, together

prohibit consideration of his arrest record. Section 4A1.3’s

prohibition, however, does not extend to the imposition of a

sentence within the Guidelines range. As noted, the Guidelines’

starting presumption is that “the court may consider, without

limitation, any information concerning the background,

character and conduct of the defendant, unless otherwise

prohibited by law.” U.S.S.G. § 1B1.4. Section 4A1.3, whatever

it prohibits regarding departures,4 does not prohibit the

4

The version of section 4A1.3 in effect when Joaquin was decided

provided, in pertinent part:

The court may, after a review of all the relevant information,

conclude that the defendant’s criminal history was

significantly more serious than that of most defendants in the

same criminal history category, and therefore consider an

upward departure from the guidelines. However, a prior

arrest record itself shall not be considered under § 4A1.3.

U.S.S.G. § 4A1.3 (2002 ed.). Based on this language, the Joaquin

majority held that the arrest record prohibition applied to both upward

and downward departures. 326 F.3d at 1292. In 2003 section 4A1.3

was amended and now states that “[a] prior arrest record itself shall

11

sentencing court’s consideration of the defendant’s arrest record

when sentencing within the Guidelines range.

Brown’s argument that an adverse inference cannot

necessarily be drawn from an arrest record, without more, merits

closer consideration. The district court could have inferred that

none of Brown’s arrests resulted in prosecutions because Brown

was innocent. See, e.g., United States v. Zapete-Garcia, 447

F.3d 57, 60-61 (1st Cir. 2006) (“More generally, a mere arrest,

especially a lone arrest, is not evidence that the person arrested

actually committed any criminal conduct. This is because arrest

‘happens to the innocent as well as the guilty.’” (quoting

Michelson v. United States, 335 U.S. 469, 482 (1948))). The

district court did not view Brown’s arrests in isolation, however,

but instead in the context of numerous other contacts with the

criminal justice system. For example, the court cited Brown’s

violation of the conditions of pre-trial release while awaiting

trial on the instant charges as well as his prior convictions and

probation violation. The court’s reference to Brown’s arrest

record simply catalogued an additional example of Brown’s

repeated contact with the criminal justice system over a short

period of time at a young age. Under these circumstances, the

district court did not err in considering Brown’s arrest record as

one of many factors warranting a sentence at the top of the

Guidelines range. See Zapete-Garcia, 447 F.3d at 61 (“[A]

series of past arrests might legitimately suggest a pattern of

unlawful behavior even in the absence of any

convictions . . . .”); cf. United States v. Chavez-Calderon, 494

F.3d 1266, 1270 (10th Cir. 2007) (district court is not

“precluded from considering uncontested conduct, even if

uncharged, in formulating a reasonable sentence”) (citing United

not be considered for purposes of an upward departure.” U.S.S.G.

§ 4A1.3 (2007 ed.). Significantly, section 4A1.3 does not prohibit

consideration of an arrest record for a downward departure.

12

States v. Mateo, 471 F.3d 1162, 1167-68 (10th Cir. 2006)).

Even assuming arguendo that the district court erred by

considering Brown’s arrest record, it did not plainly err. “If

there is no clear legal rule—whether expressed in a prior

decision or elsewhere—governing an issue, then the district

court’s decision cannot be a plain error.” Whren, 111 F.3d at

960 (citing United States v. Merlos, 8 F.3d 48, 51 (D.C. Cir.

1993)). Both 18 U.S.C. § 3661 and the Guidelines, U.S.S.G.

§ 1B1.4, authorize the Court to consider any information

“concerning the background, character and conduct” of the

defendant, which information, under the circumstances of this

case, includes Brown’s arrest record.5

Finally, at the Coles remand hearing we originally ordered

in this case, the district court determined that it “would not have

imposed a sentence materially more favorable to defendant had

it been fully aware of the post-Booker sentencing regime at the

time of sentencing,” Brown, 439 F. Supp. 2d at 139, and we find

no plain error in Brown’s sentence. See United States v. Coles,

186 Fed. Appx. 2, 3-4 (D.C. Cir. 2006).

For the foregoing reasons, we affirm the judgment of the

district court.

So ordered.

5

See also United States v. Winters, 172 Fed. Appx. 282, 283 (11th

Cir. 2006) (district court may consider defendant’s arrest record);

United States v. Payo, 40 Fed. Appx. 730, 731 (3d Cir. 2002) (“There

is of course no objection to the District Court considering [charges that

were nol-prossed or reduced to a lesser offense] as it is by now well

accepted that the sentencing court may consider any reliable

information.”); United States v. Hill, 60 Fed. Appx. 564, 566 (6th Cir.

2003) (“Courts have consistently held that uncharged but relevant

criminal conduct may be used in determining a defendant’s sentencing

guideline range.”)