“A district court may sentence a defendant based on the reasonably foreseeable acts and omissions of his co‐conspirators that were taken in relation to a conspiracy.”
How later courts described this case
- “A district court may sentence a defendant based on the reasonably foreseeable acts and omissions of his co‐conspirators that were taken in relation to a conspiracy.”
Written by the judges who cited it.
The opinion
13‐3451
United States of America v. James Brown, AKA JB
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 4th day of June, two thousand fifteen.
PRESENT: RICHARD C. WESLEY,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
______________________
UNITED STATES OF AMERICA,
Appellee,
‐v.‐ No. 13‐3451
JAMES BROWN, AKA JB,
Defendant‐Appellant.
______________________
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FOR APPELLANT: Ryan Thomas Truskoski, Ryan Thomas Truskoski, P.A.,
Harwinton, CT.
FOR APPELLEES: Steven D. Clymer, Assistant United States Attorney
(Miroslav Lovric, Assistant United States Attorney, on
the brief), for Richard S. Hartunian, United States
Attorney for the Northern District of New York,
Syracuse, NY.
Appeal from the United States District Court for the Northern District of
New York (Gary L. Sharpe, Chief Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment is AFFIRMED.
James Brown appeals from a sentence imposed in the Northern District of
New York (Sharpe, C.J.) following his conviction by guilty plea for five offenses
related to a conspiracy between Brown, who was incarcerated in New York state
prison, and a female co‐defendant, Kayla Morey, to have Morey sexually exploit
minors to produce child pornography to be given to Brown upon his anticipated
release from prison. We assume the parties’ familiarity with the underlying
facts, procedural history, and issues for review.
We review the district court’s interpretation of the Sentencing Guidelines
de novo, see United States v. Adler, 52 F.3d 20, 21 (2d Cir. 1995) (per curiam), and
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review the district court’s findings of fact for clear error, United States v. Kang, 225
F.3d 260, 261 (2d Cir. 2000) (per curiam).
Brown argues that the district court erred in applying a two‐level
enhancement based on its finding that his “offense involved distribution” of
child pornography pursuant to U.S.S.G. § 2G2.1(b)(3) because he merely solicited
images and, “[t]hus, there was no ‘distribution.’” Appellant’s Br. 23–24. Under
the Guidelines, an “offense” includes not only the specific conduct satisfying the
elements of the crime of conviction, but all conduct “relevant” to the crime as
detailed in section 1B1.3. See U.S.S.G. § 1B1.1 cmt. n.1(H). The district court
found that Brown directed Morey to take and retain images and videos for him
and that it was foreseeable to Brown that Morey would possess those images and
videos with the intent to distribute them to him. See United States v. Getto, 729
F.3d 221, 234 (2d Cir. 2013) (“A district court may sentence a defendant based on
the reasonably foreseeable acts and omissions of his co‐conspirators that were
taken in relation to a conspiracy.”). Brown’s contention that all he did was
“mere[ly] solicit[]” images from Morey, Appellant’s Br. 26, ignores that there was
evidence from which the district court was entitled to find that Brown recruited
Morey to sexually exploit minors who were accessible to her, directed her to take
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pornographic photographs and videos of them, and provided instructions to her
about the exact nature of the images and videos that he wanted. This was more
than mere solicitation.
Brown contends that the district court erred in applying a two‐level
enhancement for being an “organizer, leader, manager, or supervisor in any
criminal activity” pursuant to U.S.S.G. § 3B1.1(c). We find that the district court
was entitled to conclude that the sexual exploitation of the minors and the
production, transportation, and possession of child pornography would not have
occurred but for Brown having recruited Morey to commit those crimes and his
supervision of her.
Brown argues that the district court erred in applying the “multiple count”
adjustment for the minors whose images were not found on Morey’s cell phone.
Because this argument is “substantially different” than the argument Brown
raised in the district court, we review for plain error. See, e.g., United States v.
Ubiera, 486 F.3d 71, 74 (2d Cir. 2007). U.S.S.G. § 1B1.2(d) allows for the creation
of pseudo counts when an offender is convicted of conspiracy to commit
multiple offenses. It was not plain error for the district court to create pseudo
counts for the unexploited minors targeted by the conspiracy.
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Finally, Brown argues that his sentence, which included a 720‐month term
of imprisonment, was substantively unreasonable. We do not find that “the
sentence imposed was shockingly high . . . or otherwise unsupportable as a
matter of law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009).
We have considered Brown’s remaining arguments and find them to be
without merit. For the reasons stated above, the sentence of the district court is
AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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