labeling UBN a “gang”
How later courts described this case
- labeling UBN a “gang”
Written by the judges who cited it.
The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4425
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANDRE QUINN BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:13-cr-00365-CCE-1)
Submitted: February 27, 2015 Decided: May 21, 2015
Before DIAZ and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Paul Camarena, NORTH & SEDGWICK, LLC, Chicago, Illinois, for
Appellant. Ripley Rand, United States Attorney, Robert A.J.
Lang, Assistant United States Attorney, Winston-Salem, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Andre Quinn Brown appeals the sentence imposed after he
pleaded guilty, pursuant to a written plea agreement, to
possession of a firearm by a felon, in violation of 18 U.S.C.
§§ 922(g), 924(e) (2012). The presentence report (“PSR”)
recounted Brown’s involvement with a particular criminal street
gang, and recommended as a special condition of his supervised
release that Brown “not wear, display, use or possess any
clothing or accessories which have any gang or security threat
group significance.” (J.A. 58).
At his sentencing hearing, Brown confirmed that he had no
objections to the PSR. Brown explained that his connection with
the United Blood Nation gang had been the primary cause of his
past criminal activity, as well as the instant offense, and that
he had ended his association with the gang. After the district
court recited other supervised release conditions, the probation
officer reminded the court of the PSR’s recommended condition
concerning gang-related attire. The court responded, “I did
overlook it. . . . Not associate with any gang members. . . .
That doesn’t sound like it’s going to be a problem.” (J.A. 29).
Following this exchange, both parties made other
recommendations, and neither party mentioned the gang-related
supervised release condition that the court had imposed. Nearly
three weeks after the sentencing hearing, the court entered its
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judgment, which included--verbatim from the PSR--the special
condition of supervised release regarding gang-related attire.
On appeal, Brown challenges only this condition. We affirm.
“District courts have broad latitude to impose conditions
on supervised release . . . .” United States v. Worley, 685
F.3d 404, 407 (4th Cir. 2012) (internal quotation marks
omitted). “A sentencing court may impose any condition that is
reasonably related to the relevant [18 U.S.C. § 3553(a)]
sentencing factors . . . .” 685 F.3d at 407. These include
“the nature and circumstances of the offense and the history and
characteristics of the defendant, providing adequate deterrence,
protecting the public from further crimes, and providing the
defendant with training, medical care, or treatment.” Id.
(internal quotation marks, alteration, and citations omitted).
The condition also “must ‘involve[] no greater deprivation of
liberty than is reasonably necessary’ to achieve the goals
enumerated in § 3553(a).” United States v. Armel, 585 F.3d 182,
186 (4th Cir. 2009) (quoting 18 U.S.C. § 3583(d)(2) (2012)).
“‘The [district] court, at the time of sentencing, shall
state in open court’ . . . the rationale for the special
conditions it imposes.” Id. (internal citation and ellipsis
omitted) (quoting 18 U.S.C. § 3553(c) (2012)). The purpose of
requiring an explanation is to permit meaningful appellate
review. Id. Nevertheless, the court’s reasons need not
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establish “an offense-specific nexus,” as long as “the
sentencing court . . . adequately explain[s] its decision and
its reasons for imposing” the condition. Worley, 685 F.3d at
407 (internal quotation marks omitted).
Brown claims that the district court erred by providing no
explanation for imposing the challenged condition. Because
Brown did not object on this basis in the district court, we
review the claim for plain error. See United States v. Price,
777 F.3d 700, 711 (4th Cir. 2015); see United States v.
Deatherage, 682 F.3d 755, 763 (8th Cir. 2012).
To establish plain error, Brown must show that: (1) an
error occurred; (2) the error was plain; and (3) the error
affected his substantial rights. Henderson v. United States,
133 S. Ct. 1121, 1126 (2013); Price, 777 F.3d at 711. Even if
Brown makes the required showing, correction of the error lies
within our discretion, which we exercise only if “the error
seriously affects the fairness, integrity or public reputation
of judicial proceedings.” Henderson, 133 S. Ct. at 1126-27
(internal quotation marks and alterations omitted).
We conclude that Brown has not met his burden. The record
shows that the only explanation offered by the district court
was its adoption, in whole, of the PSR. Even if we were to
conclude the district court erred by solely relying on the PSR’s
justifications, as Brown implies, that error was not plain
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because the law in this regard is not clear or settled. See
United States v. Ramirez-Castillo, 748 F.3d 205, 215 (4th Cir.
2014); United States v. Guzman, 603 F.3d 99, 110 (1st Cir.
2010); United States v. Johnson, 445 F.3d 339, 346 (4th Cir.
2006). The PSR adequately explained the probation officer’s
reasons for recommending the challenged condition and,
therefore, because the district court did not plainly err by
solely relying on the PSR, the court’s explanation was not
plainly erroneous.
Brown also claims that the challenged condition is overly
vague and, therefore, that its imposition violated his due
process rights. With respect to this claim, the parties
disagree as to the applicable standard of review. Brown points
out that, at the sentencing hearing, the district court only
mentioned that Brown would be prohibited from associating with
gang members--not that he would be prohibited from wearing gang-
related attire. Because the court did not orally pronounce the
specific portion of the condition he challenges, Brown argues
that plain-error review would be inappropriate and that we
should instead review his claim for abuse-of-discretion.
Although Brown concedes that he did not object to the
imposition of any supervised release condition, he implicitly
argues that his failure to object should not result in plain
error review because the court’s oral pronouncement deprived him
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of any opportunity to make an objection. Decisions from other
courts of appeals support that position. See, e.g., United
States v. Matta, 777 F.3d 116, 121 (2d Cir. 2015) (“[W]e have
employed a ‘relaxed’ form of plain error review in those rare
cases in which the defendant lacked sufficient prior notice that
a particular condition of supervised release might be
imposed.”). In this case, however, Brown had ample opportunity
to object to the challenged condition because it appeared as a
recommendation in the PSR. We will therefore review Brown’s
claim for plain error.
Applying the plain error standard, we conclude that, in
light of the lack of authority in this circuit, even if the
condition Brown challenges is impermissibly vague, it is not
plainly so. Thus, Brown has failed to meet his burden.
We therefore affirm the judgment of the district court. 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 the decisional process.
AFFIRMED
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