United States v. Byron Brown

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-5323

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BYRON KEITH BROWN,

Defendant - Appellant.

Appeal from the United States District Court for the District of

Maryland, at Baltimore. William M. Nickerson, Senior District

Judge. (1:09-cr-00303-WMN-1)

Submitted: May 25, 2012 Decided: August 15, 2012

Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Sicilia Chinn Englert, LAWLOR & ENGLERT, LLC, Greenbelt,

Maryland, for Appellant. Rod J. Rosenstein, United States

Attorney, Joyce K. McDonald, Assistant United States Attorney,

Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Following a jury trial for multiple counts of wire

fraud and money laundering, Byron Keith Brown was convicted and

sentenced to a total of 180 months’ imprisonment. In this

appeal, Brown contends that the district court abused its

discretion in denying his motions for a continuance and a new

trial and erred in its application of U.S. Sentencing Guidelines

Manual (“USSG”) § 2B1.1(b)(2)(A), (b)(8)(C) (2009). We affirm.

Brown’s arguments with respect to his motions relate

to the Government’s production of electronic discovery, which

included forensic images of Brown’s computer. Brown asserts

that he obtained access to the data only shortly before trial

when he discovered that the files were not organized in any

meaningful form, complicating his efforts to locate relevant

documents. He compares the data he received with the

Government’s utilization of a virtual copy of Brown’s computer,

allowing the Government to navigate through the data exactly as

it had appeared to the user. Brown argues that the Government

could have provided him with a virtual copy and contends that

its failure to do so limited his ability to prepare a defense to

such a degree that the district court abused its discretion in

failing to grant a continuance and, following the verdict, a new

trial.

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We review a district court’s decision to deny a

continuance and a new trial for abuse of discretion. United

States v. Ibisevic, 675 F.3d 342, 349 (4th Cir. 2012) (new

trial); United States v. Cole, 631 F.3d 146, 156 (4th Cir. 2011)

(continuance). “The denial of a continuance contravenes a

defendant’s Sixth Amendment right to counsel only when there has

been an unreasoning and arbitrary insistence upon

expeditiousness in the face of a justifiable request for delay.”

United States v. Hedgepeth, 418 F.3d 411, 423 (4th Cir. 2005)

(internal quotation marks omitted). Even if we determine that

the district court abused its discretion in denying a

continuance, Brown “must show that the error specifically

prejudiced his case in order to prevail.” Id. at 419.

We note that the emails Brown sought were available

from materials provided by the Government apart from the

forensic images, and that the Government made its records

available for inspection and offered to print copies of the

documents Brown had difficulty accessing. Given these facts,

coupled with the significant delay that a continuance would have

demanded as a result of defense counsel’s availability, we

cannot say that the district court’s ruling was an abuse of

discretion. See id.; see also Morris v. Slappy, 461 U.S. 1, 11

(1983) (stating that “problem[] . . . of assembling the

witnesses, lawyers, and jurors at the same place at the same

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time” necessitates granting “[t]rial judges . . . a great deal

of latitude in scheduling trials”). Nor can we say, given

Brown’s failure to direct us to any evidence that was

unavailable to him at trial, that the district court abused its

discretion in denying Brown’s motion for a new trial. See

United States v. Fulcher, 250 F.3d 244, 249 (4th Cir. 2001)

(recounting five-part test for evaluating motion for new trial

based on newly discovered evidence).

Next, Brown challenges the district court’s

application of two sentencing enhancements. In reviewing the

district court’s application of the Guidelines, we review

findings of fact for clear error and questions of law de novo.

United States v. King, 673 F.3d 274, 281 (4th Cir. 2012). A

sentencing enhancement must be supported by a preponderance of

the evidence. United States v. Blauvelt, 638 F.3d 281, 293 (4th

Cir.), cert. denied, 132 S. Ct. 111 (2011).

Brown argues that the district court erred in finding

that there were more than ten victims and applying the relevant

two-level enhancement. He contends that the Government produced

only seven victims who suffered a monetary loss. The Guidelines

provide for a two-level enhancement where the defendant’s fraud

“(i) involved 10 or more victims; or (ii) was committed through

mass-marketing.” USSG § 2B1.1(b)(2)(A). Because Brown conceded

in the district court that his website met the mass-marketing

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definition, see USSG § 2B1.1 n.4(A), we need not address his

challenge to the number of victims involved in the offense. See

United States v. Garrett, 243 F.3d 824, 830 (4th Cir. 2001)

(“[W]e can affirm [a] sentence on the basis of any conduct [in

the record] that independently and properly should result in an

increase in the offense level by virtue of the enhancement.”)

(internal quotation marks omitted). We therefore conclude that

the district court properly applied this enhancement.

Finally, Brown argues that the district court erred in

applying a two-level enhancement, pursuant to USSG

§ 2B1.1(b)(8)(C), * for violating an administrative order because

the order in question was not a final agency adjudication.

Because Brown failed to raise this argument in the district

court, we review it for plain error. United States v.

Massenburg, 564 F.3d 337, 342 n.2 (4th Cir. 2009) (“[A]n

objection on one ground does not preserve objections on

different grounds.”). Accordingly, Brown “must show that an

error was made, is plain, and affected his substantial rights.”

United States v. Slade, 631 F.3d 185, 190 (4th Cir.), cert.

denied, 131 S. Ct. 2943 (2011). For purposes of plain error

*

This provision appears as § 2B1.1(b)(9)(C) in the 2011

edition of the Guidelines.

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review, “‘[p]lain’ is synonymous with ‘clear’ or, equivalently,

‘obvious.’” United States v. Olano, 507 U.S. 725, 734 (1993).

On this record, Brown is unable to show that the

district court plainly erred in applying the enhancement. Brown

asserts that he appeared for a hearing and that the agency took

no further action. The Government responds that the

administrative record shows that Brown violated the order and

that he committed perjury. However, because the agency’s cease

and desist order is the sole evidence in the record concerning

the administrative proceedings, it is neither clear nor obvious

that the district court erred in applying the enhancement. See

United States v. Goldberg, 538 F.3d 280, 291 (3d Cir. 2008)

(stating general rule that appellate courts will “impose the

enhancement after a meaningful negotiation or interaction led

the agency to issue a directive that the defendant subsequently

violated”). Irrespective of the order’s finality, Brown asserts

that he complied with the order by moving his business from

Washington, D.C., to Wilmington, Delaware. The record shows,

however, that Brown continued to conduct business in Washington.

Brown therefore is entitled to no relief on this claim.

Based on the foregoing, we affirm the judgment of the

district court. We dispense with oral argument because the

facts and legal contentions are adequately presented in the

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materials before the court and argument would not aid the

decisional process.

AFFIRMED

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