United States v. Cy Brown

FILED

NOT FOR PUBLICATION

DEC 01 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-10393

Plaintiff - Appellee, D.C. No. 2:03CR00104-MCE-AC-1

v.

MEMORANDUM *

CY IRVING BROWN,

Defendant - Appellant.

Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, Jr., District Judge, Presiding

Submitted June 17, 2016**

San Francisco, California

Before: CLIFTON and IKUTA, Circuit Judges, and HAYES,*** District Judge.

*

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

**

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

***

The Honorable William Q. Hayes, United States District Judge for the

Southern District of California, sitting by designation.

Appellant Cy Irving Brown appeals from his sentence of 234 months

imprisonment following his conviction by a jury on charges of armed bank robbery

in violation of 18 U.S.C. § 2113(a) and (d), and use of a firearm in violation of 18

U.S.C. § 924(c)(1). On direct appeal, this Court affirmed the conviction and ordered

limited remand for sentencing pursuant to United States v. Ameline, 409 F.3d 1073,

1074 (9th Cir. 2005) (en banc). United States v. Brown, 172 F. App’x 206 (9th Cir.

2006). On remand, the district court determined that the sentence imposed would not

have been materially different had the district court been aware that the Guidelines

were advisory. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

Brown contends that the Faretta advisement by the district court prior to the

Ameline remand hearing was inadequate. Brown asserts that he intended to waive his

right to counsel for a prior motion under 28 U.S.C. § 2255 and not for the Ameline

remand proceeding. The record shows that the district court fully informed Brown of

the nature of the Ameline remand, and the dangers and disadvantages of self-

representation at the proceedings. The record demonstrates that Brown unequivocally

expressed his intention to represent himself at the Ameline remand hearing. We

conclude that Brown’s waiver of his right to counsel was voluntary, knowing, and

intelligent. See Faretta v. California, 422 U.S. 806, 835 (1975).

2

Brown also contends that his sentence is substantively unreasonable because

the district court found that Criminal History Category VI substantially under-

represented the seriousness of his criminal history and applied a two level upward

departure pursuant to United States Sentencing Guideline (“U.S.S.G.”) § 4A1.3. We

conclude that the district court properly considered “the nature of [Brown’s] prior

offenses rather than simply their number.” U.S. Sentencing Guidelines Manual

§ 4A1.3 cmt. n.2(B) (2003). The district court imposed the two level upward

departure under U.S.S.G. § 4A1.3 based upon Brown’s extensive criminal history, the

escalating serious and violent nature of his prior offenses, and the use of firearms in

this case. The calculation of the advisory Guideline range was based upon a proper

application of the Guideline provisions to the facts in the record. The district court

made an “individualized determination, and in light of all the circumstances in the

case, the sentence imposed was reasonable.” United States v. Carty, 520 F.3d 984,

995 (9th Cir. 2008) (en banc).

The parties filed supplemental briefs, which we have considered, addressing

whether Brown’s conviction for a violation of 18 U.S.C. § 924(c) should be set aside

and whether this issue may be raised for the first time in this appeal. Brown contends

that his conviction for a violation of 18 U.S.C. § 2113(a) and (d) is no longer a crime

of violence after Johnson v. United States, 135 S. Ct. 2551 (2015) and that this Court

3

has the discretion to decide issues waived or not reached in the district court. See

Davis v. Elec. Arts Inc., 775 F.3d 1172, 1180 (9th Cir. 2015) (exercising the Court’s

discretion to determine whether plaintiffs’ state law claims are barred by the incidental

use defense not asserted in the district court). We conclude that Brown is required to

“move the court which imposed the sentence to vacate, set aside or correct the

sentence.” 28 U.S.C. § 2255(a). Under 28 U.S.C. § 2255(e), an application for writ

of habeas corpus “shall not be entertained if it appears that the applicant has failed to

apply for relief, by motion to the court which sentenced him, . . . unless it also appears

that the remedy by motion is inadequate or ineffective to test the legality of his

detention.” 28 U.S.C. § 2255(e). Brown has not applied for relief to the district court

or made any showing that the remedy provided by 28 U.S.C. § 2255 is not adequate

or effective.1

AFFIRMED.

1

We grant leave to Brown to file a second or successive motion under 28

U.S.C. § 2255(h).

4