United States v. James Brown

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Submitted March 20, 2017 Decided May 23, 2017

No. 16-3076

UNITED STATES OF AMERICA,

APPELLEE

v.

JAMES WENDELL BROWN, ALSO KNOWN AS JIMMY,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cr-00155-1)

Barbara E. Kittay, appointed by the court, was on the brief

for appellant.

Elizabeth Trosman and Lauren R. Bates, Assistant U.S.

Attorneys, were on the brief for appellee.

Before: GARLAND, Chief Judge, GRIFFITH, Circuit Judge,

and SENTELLE, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: A trial court imposed on James

Brown a stiffer sentence than the U.S. Sentencing Guidelines

recommend. But the court followed proper procedures, and the

2

sentence was not so harsh as to be an abuse of discretion. We

therefore affirm Brown’s sentence against his procedural and

substantive challenges.

I

The facts are grim. In 2012, James Brown was drawn into

an online sting operation with a police detective. In a plea

agreement, Brown conceded that the government had clear and

convincing evidence that he had asked for sex with a

prepubescent child, talked about having sexually abused

certain minors every chance he got, expressed a preference for

very young children, and abused his daughter and

granddaughters when they were as young as three to six years

old. As part of the plea agreement, Brown pled guilty to one

count of distributing child pornography. See 18 U.S.C.

§ 2252(a)(2)(A).

For his cooperation, federal and state officials agreed not

to prosecute Brown further for any of the conduct to which he

admitted. The plea deal also specified an “offense level” under

the Guidelines for the sentencing court to consider. An offense

level is calculated by taking the number assigned by the

Guidelines to the defendant’s “base offense” and adding or

subtracting points as needed to reflect certain aggravating or

mitigating factors. See 18 U.S.C. § 3551 et seq. In Brown’s

case that calculation yielded an offense level of 30, for which

the Guidelines recommend 97 to 121 months of incarceration.

The district court, however, was not bound by that range.

It sentenced Brown to 144 months of incarceration and 240

months of supervised release. But Brown appealed and we

vacated that sentence, finding that the judge had neglected

procedures that courts must follow to justify an above-

Guidelines sentence. On remand, the district court imposed the

3

same sentence, this time with a more detailed explanation, and

Brown again appealed.

We have authority to review Brown’s sentence under 28

U.S.C. § 1291, and do so in two steps. We first ask if the district

court committed “significant procedural error,” such as by

“failing to adequately explain the chosen sentence.” Gall v.

United States, 552 U.S. 38, 51 (2007). At this step, we review

legal conclusions de novo and factual findings for clear error.

United States v. Jones, 744 F.3d 1362, 1366 (D.C. Cir. 2014).

Next we review the “overall . . . reasonableness” of the

district court’s chosen sentence in light of several statutorily

specified factors, United States v. Warren, 700 F.3d 528, 531

(D.C. Cir. 2012) (quoting United States v. Locke, 664 F.3d 353,

356 n.3 (D.C. Cir. 2011)); see also 18 U.S.C. § 3553(a), but

only for abuse of discretion, United States v. Russell, 600 F.3d

631, 633 (D.C. Cir. 2010).

II

A judge imposing an above-Guidelines sentence must

offer in court, and in writing, a “specific reason” why the

defendant’s case calls for a more severe sentence than other

cases falling within the same Guidelines categories. United

States v. Brown, 808 F.3d 865, 866 (D.C. Cir. 2015) (quoting

18 U.S.C. § 3553(c)(2)). The judge’s explanation must draw on

specific facts about the defendant’s history or conduct; the

demands of deterrence, public safety, rehabilitation, or

restitution for victims that are particular to that case; or some

other factor listed in section 3553(a) of the federal sentencing

statute. See id. at 871; 18 U.S.C. § 3553(a)(1)-(7).

An earlier panel of this court found that the district court

had offered no specific facts at the original sentencing to

4

distinguish Brown’s case from others falling into the same

Guidelines categories. For instance, the district court noted that

Brown had “actual[ly] abuse[d]” children over a “period of

time,” but the applicable Guidelines categories already

accounted for Brown’s acts of “sexual abuse or exploitation”

and his “pattern of abuse” (a term denoting multiple instances).

Brown, 808 F.3d at 872. The district court also opined that the

“combination of behaviors to which Brown pled is ‘not conduct

we normally get around here.’” Id. (quoting sentencing

transcript). Yet the legal issue was how Brown’s conduct

compared to offenses falling under the same Guidelines

categories, not offenses committed in the same district. Id. On

the whole, we found, the sentencing court had “mere[ly]

recit[ed]” the 3553(a) factors “without application” to Brown’s

case. And that alone is never enough to assure us of “reasoned

decisionmaking.” Id. at 872 (quoting United States v. Akhigbe,

642 F.3d 1078, 1086 (D.C. Cir. 2011)). We thus vacated

Brown’s original sentence on the ground that the district court

had offered no “specific reason,” based on the 3553(a) factors,

for finding Brown’s case more egregious than other cases

“accounted for in the properly calculated Guidelines range.” Id.

at 871.

On remand, the district court imposed the same sentence,

but this time it met its procedural duty to offer specific reasons.

In general, a court may impose an above-Guidelines sentence

on a particular defendant “based on [aggravating] factors

already taken into account by” the Guidelines calculation for

that defendant, so long as the court can explain how the

Guidelines “do not fully” capture the egregiousness of that

defendant’s conduct. United States v. Ransom, 756 F.3d 770,

775 (D.C. Cir. 2014) (quoting United States v. Richart, 662

F.3d 1037, 1052 (8th Cir. 2011)) (emphasis added). That is, the

court must cite details that are more informative and more

damning (within the framework established by section

5

3553(a)) than the generic terms of the applicable Guidelines

categories.

Our earlier opinion in Brown’s case offered suggestions of

what sorts of details might suffice to distinguish his conduct

from other conduct falling under the same Guidelines

categories. In particular, we acknowledged that—as the

government had argued before us—the district court may have

imposed an above-Guidelines sentence to “compensate for the

‘benefits’” that Brown reaped from the promise of state

authorities not to prosecute him in Virginia, where some of his

crimes had occurred. Brown, 808 F.3d at 874. We simply noted

that this possible ground for Brown’s tougher sentence could

not cure the procedural defects in the district court’s ruling

because the district court did not mention this feature of

Brown’s case in connection with the 3553(a) factors or in the

court’s written Statement of Reasons. Id. Nor did the trial judge

explain that “he was imposing an above-Guidelines sentence

because of” this aspect of Brown’s case. Id. (emphasis added).

At resentencing, however, the district court justified

Brown’s sentence partly by appeal to the promise not to

prosecute Brown for crimes committed in Virginia. Brown

responds that it was improper double-counting for the district

court to increase his sentence based on this conduct, which had

already been addressed with a 5-point Guidelines

enhancement. But the district court didn’t simply rely on the

fact that Brown had abused minors in Virginia. The court

thought a second prosecution for Brown’s sexual offenses in a

separate jurisdiction might well have led to a “much more

severe” combined sentence than the enhancement would yield.

J.A. 54. That was one respect in which the district court thought

the Guidelines did not “fully account for” the egregiousness of

Brown’s pattern of abuse.

6

The district court gave three other reasons for thinking the

Guidelines didn’t capture the gravity of Brown’s offenses: that

they “did not adequately reflect the seriousness and frequency

of the sexual abuse, the young age of the victims, and the abuse

of trust by someone who was supposed to be protecting his own

daughters and granddaughters.” J.A. 54.

Indeed, Brown’s admission that his victims were as young

as toddlers is more informative, and more damning, than the

relevant Guidelines category, which tells us only that the

victims were under 12 years old or prepubescent. The same

goes for the district court’s lament that the victims were

vulnerable to betrayal as a daughter and granddaughters, not

just “minors,” as specified by the Guidelines; or that the abuse

happened as often as Brown could perpetrate it over several

years, and didn’t simply form a “pattern” in the Guidelines’

sense of two or more cases. See Application Note 1 to § 2G2.2.

Thus, the district court gave several specific and legitimate

grounds for exceeding the Guidelines.

So much for the procedural challenge. The other question

is whether Brown’s sentence was substantively unreasonable,

and thus an abuse of discretion. United States v. Gardellini, 545

F.3d 1089, 1098 (D.C. Cir. 2008). We review above-

Guidelines sentences “under ‘the totality of the circumstances,’

giving ‘due deference to the district court’s decision that the

§ 3553(a) factors, on a whole, justify the extent of the

variance.’” Id. (quoting Gall, 522 U.S. at 51).

Here Brown cites the case of a man sentenced to only 78

months for sexual abuse though his victims, too, were relatives.

See United States v. Lucero, 747 F.3d 1242, 1244 (10th Cir.

2014). Decided by the Tenth Circuit, that case does not bind

us. And even if it did, Lucero wouldn’t help Brown. The abuse

in Lucero had occurred only twice. The Guidelines range was

7

lower to begin with: 78 to 92 months, not 97 to 121 months.

And the circuit court simply affirmed the man’s sentence,

without saying that a stiffer punishment would have been

irrational.

Weak analogies aside, Brown offers no serious argument

that his sentence was an abuse of discretion, and we doubt he

could. It is hardly unreasonable for a court to extend a 10-year

sentence by two years plus a period of supervised release when

a defendant has been spared another prosecution—and perhaps

many more years of imprisonment—for sexual abuse he

certainly committed. That is especially true where, as in this

case, the abuse was so persistent, the victims so young, and the

betrayal of trust so acute.

III

Finding no procedural defect or abuse of discretion, we

affirm Brown’s sentence.

So ordered.