United States v. Larry Brown

Case: 18-50962 Document: 00515265825 Page: 1 Date Filed: 01/09/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

January 9, 2020

No. 18-50962

Lyle W. Cayce

Clerk

Consolidated with 18-50963

UNITED STATES OF AMERICA,

Plaintiff – Appellee

v.

LARRY WESLEY BROWN,

Defendant – Appellant

Appeals from the United States District Court

for the Western District of Texas

USDC No. 7:07-CR-145-1

USDC No. 7:18-CR-53-1

Before HAYNES and OLDHAM, Circuit Judges, and HANEN,* District

Judge.

PER CURIAM:**

These consolidated appeals address the supervised release revocation

and the firearm possession sentencing of Larry Wesley Brown. We AFFIRM.

* District Judge of the Southern District of Texas, sitting by designation.

**Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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I. Background

In 2008, Brown pleaded guilty to being a felon in possession of a firearm.

The district court sentenced him to fifty-two months of imprisonment and a

three-year term of supervised release. He was released to supervision in

March 2016.

Less than two years later, the probation office filed a petition for a

warrant for Brown, alleging that he had violated the terms of his supervised

release. 1 The petition stated that Brown had been arrested for a Texas offense

but failed to advise his probation officer as required. When officers arrested

Brown at his home for a state parole violation, they discovered a loaded

firearm, three extra magazines, heroin, cocaine, and methamphetamine there.

Brown was thereafter charged in federal court with possessing a firearm

after a felony conviction. He pleaded guilty to the offense without a written

plea agreement.

A probation officer then filed an amended petition to revoke Brown’s

probation. In addition to restating Brown’s previous violations, the amended

petition noted that Brown had been convicted on the felon-in-possession

charge. The probation officer later filed a second amended petition alleging

that Brown had also been indicted in federal court for bank robbery. The

Government adopted the petition’s allegations and moved to revoke Brown’s

supervised release.

At a joint hearing to adjudicate the Government’s revocation petition and

sentence Brown for the felon-in-possession conviction, Brown pleaded true to

each allegation in the second amended petition. The district court granted the

1 In particular, the petition asserted that Brown had violated the terms that (1) prohibited

him from committing a new law violation, (2) obligated him to inform his probation officer

within seventy-two hours of being arrested or questioned by officers, and (3) barred him from

living in a place where firearms were possessed or stored.

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Government’s motion for revocation, revoked Brown’s supervised release, and

sentenced him to twenty-four months in prison and no term of supervised

release. As to the felon-in-possession offense, the district court sentenced

Brown to seventy-one months of imprisonment and a three-year term of

supervised release. The district court ordered the sentences to run

consecutively. Brown timely appealed both the revocation and the felon-in-

possession judgments.

II. Discussion

A. The Revocation Sentence

Brown raises several challenges to his revocation and accompanying

sentence. He did not raise any of these arguments in the district court, so we

apply plain error review. See Puckett v. United States, 556 U.S. 129, 134–35

(2009). To establish plain error, Brown must show that (1) there was an error,

(2) the error was “clear or obvious,” and (3) the error “affected [his] substantial

rights.” Puckett, 556 U.S. at 135. If Brown makes that showing, we have

discretion to remedy the error only if it “seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.” Id. (alteration in

original) (internal quotation marks and citation omitted).

Brown first contends that he did not knowingly and voluntarily plead

true to the allegations in the revocation petition. He asserts that the parties

and the district court were uncertain about the allegations to which he

admitted and that the confusion prevented him from entering an informed

plea. He maintains that as a result of this confusion and the district court’s

failure to assess whether his plea was entered intelligently, his due process

rights were violated.

Brown relies upon Boykin v. Alabama, 395 U.S. 238, 242–44 (1969),

requiring a knowing and voluntary plea, contending it applies to revocation

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proceedings. We have not previously decided this issue, and we need not do so

here. See United States v. Johns, 625 F.2d 1175, 1176 (5th Cir. 1980) (declining

to decide whether Boykin applies to revocation proceedings); see also United

States v. Botello, 769 F. App’x 147, 148 (5th Cir. 2019) (per curiam), cert.

denied, 140 S. Ct. 298 (2019) (mem.). Several of our sister circuits have held

that Boykin does not apply to revocation proceedings, 2 and an error is not clear

or obvious when our law is unsettled and other circuit courts have reached

different results on the issue, see United States v. Salinas, 480 F.3d 750, 759

(5th Cir. 2007). Thus, even if the district court did not expressly assess

whether Brown’s plea was knowing and voluntary, such failure would not be

plain error.

Brown also argues a lack of knowing and intelligent waiver of his right

to a full revocation hearing. See United States v. Hodges, 460 F.3d 646, 651–

52 (5th Cir. 2006). As discussed above, at the joint revocation and sentencing

(for the felon-in-possession charge) hearing, Brown pleaded true to the

relevant allegations, thus waiving his right to a full hearing on the merits.

Assuming arguendo that the district court failed in some procedural aspects of

this waiver process, Brown has not shown that any error affected his

substantial rights. See Puckett, 556 U.S. at 135. Specifically, Brown has not

established a reasonable probability that, but for the error, he would not have

admitted to the violations in the second revocation petition. See id.; see also

United States v. Dominguez-Benitez, 542 U.S. 74, 83 (2004). He has thus not

shown reversible plain error. See Puckett, 556 U.S. at 135.

Brown next asserts that his revocation sentence was unreasonable. We

review revocation sentences under the “plainly unreasonable” standard of

2See, e.g., United States v. Pelensky, 129 F.3d 63, 67–68 (2d Cir. 1997); United States v.

Rapert, 813 F.2d 182, 184–85 (8th Cir. 1987); United States v. Segal, 549 F.2d 1293, 1296–

1301 (9th Cir. 1977).

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18 U.S.C. § 3742(a). See United States v. Miller, 634 F.3d 841, 843 (5th Cir.

2011). We will uphold a revocation sentence unless it is “in violation of the law

or plainly unreasonable.” United States v. Jones, 484 F.3d 783, 791 (5th Cir.

2007) (citation and internal quotation marks omitted). Under our precedent,

because Brown did not challenge the reasonableness of his sentence in district

court, we would review for plain error only. See United States v. Gonzalez, 250

F.3d 923, 930 (5th Cir. 2001). 3 Under either standard, however, Brown’s

arguments fail.

At the time of sentencing, a district court “shall state in open court the

reasons for its imposition the particular sentence.” 18 U.S.C. § 3553(c). “The

appropriateness of brevity or length, conciseness or detail, when to write, what

to say, depends upon circumstances.” Rita v. United States, 551 U.S. 338, 356

(2007); see United States v. Whitelaw, 580 F.3d 256, 261–62 (5th Cir. 2009)

(applying Rita in the revocation context).

Brown argues that his sentence was unreasonable because the district

court did not explain its decision to order his revocation and felon-in-possession

sentences to be served consecutively. We agree that the district court could

have given a more robust explanation. But, even applying the preserved-error

“plainly unreasonable” standard, we conclude that reversible error is not

shown particularly given that the court followed the sentencing policy

recommendation of a consecutive sentence. U.S.S.G. § 7B1.3(f), p.s. (“Any term

of imprisonment imposed upon the revocation of probation or supervised

release shall be ordered to be served consecutively to any sentence of

imprisonment that the defendant is serving, . . . .”).

3 The Supreme Court has granted certiorari in a case challenging our precedent on this

point. Holguin-Hernandez v. United States, 139 S. Ct. 2666 (2019) (mem.). However, even

applying the “plainly unreasonable” standard applicable to preserved challenges, we find no

reversible error.

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Brown also claims that his revocation sentence was unreasonable

because he in effect received consecutive sentences for the same conduct. Put

differently, Brown contends that he was sentenced both for committing the

felon-in-possession offense and for violating his supervised release on that

basis. But a revocation sentence is meant to punish the violation of supervised

release; this punishment is distinct from the sentence for the new offense that

may trigger the revocation. See United States v. Zamora-Vallejo, 470 F.3d 592,

596 & n.6 (5th Cir. 2006) (per curiam). We have repeatedly upheld revocation

sentences that were ordered to run consecutively to sentences for new offenses

that prompted the revocation. 4 Brown has not shown that the district court

committed reversible error.

B. The Felon-In-Possession Sentence

Brown also contends that the district court erred by increasing his

sentence under U.S.S.G. § 2K2.1(b)(6)(B) on the ground that he possessed a

firearm in connection with another felony offense. We review the district

court’s application of the Sentencing Guidelines de novo and its findings of fact

for clear error. See United States v. Stanford, 823 F.3d 814, 843 (5th Cir. 2016).

Section 2K2.1(b)(6)(B) of the U.S. Sentencing Guidelines provides for a

four-level enhancement when “the defendant used or possessed any

firearm . . . in connection with another felony offense.” The enhancement

applies if the firearm “facilitated, or had the potential of facilitating, another

felony offense.” Id. § 2K2.1 cmt. n.14(A). “Another felony offense” means any

federal, state, or local crime that is punishable by a prison term of more than

4See United States v. Sims, 774 F. App’x 231, 231–32 (5th Cir. 2019) (per curiam); United

States v. Ramirez, 264 F. App’x 454, 458–59 (5th Cir. 2008) (per curiam); United States v.

Rocha-Ramirez, 243 F. App’x 22, 23 (5th Cir. 2007) (per curiam); United States v. Deal, 237

F. App’x. 909, 910–11 (5th Cir. 2007) (per curiam).

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one year, even if the defendant was never charged or convicted. Id. § 2K2.1

cmt. n.14(C).

Application of the enhancement depends on the type of felony alleged. If

the crime is a drug trafficking offense, the adjustment automatically applies if

a firearm is found “in close proximity to drugs, drug-manufacturing materials,

or drug paraphernalia.” United States v. Jeffries, 587 F.3d 690, 692 (5th Cir.

2009); U.S.S.G. § 2K2.1 cmt. n.14(B)(ii). For all other felonies except burglary,

the enhancement applies if the gun facilitated, or had the potential to

facilitate, another felony offense. Jeffries, 587 F.3d at 692; U.S.S.G. § 2K2.1

cmt. n.14(A). The evaluation of the connection between the gun and the

additional felony is a factual finding that we review for clear error. See United

States v. Coleman, 609 F.3d 699, 708 (5th Cir. 2010).

Addressing the drug trafficking issue, here, the presentence report

(“PSR”) stated that when officers arrested Brown, they found a plastic bag

containing twelve smaller bags filled with 5.1 total grams of cocaine. Brown

told the officers where to find the firearm at issue. The officers found the

loaded firearm in a toolbox between a bed and a nightstand; the toolbox also

contained three fully loaded magazines. The officers also found additional

ammunition; a gun holster; a digital scale; and a safe that contained

prescription drugs, roughly one gram of heroin, and less than one gram of

methamphetamine. Brown conceded that he owned the drugs and firearm and

told the officers that there were also used syringes in a kitchen cabinet.

In addressing the § 2K2.1(b)(6)(B) enhancement, the probation officer

referred to Note 14(B) of the Guidelines, which states that the enhancement

applies “in the case of a drug trafficking offense in which a firearm is found in

close proximity to drugs, drug-manufacturing materials, or drug

paraphernalia.” See U.S.S.G. § 2K2.1 cmt. n.14(B)(ii). Brown objected to the

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enhancement, arguing that there was no indication that the gun was used in

connection with another offense and the evidence did not reflect that the gun

was related to the drugs in his home. At sentencing, the district court

overruled Brown’s objection to the adjustment and adopted the PSR in relevant

part without change.

Brown now argues that the § 2K2.1(b)(6)(B) adjustment was improperly

applied because there was no record evidence that his possession of the firearm

facilitated a drug trafficking offense. He maintains that the evidence at most

showed that he simultaneously possessed a firearm and drugs for personal use.

We disagree. Brown had 5.1 grams of cocaine divided into small plastic

bags, a digital scale, used syringes, roughly one gram of heroin, and less than

one gram of methamphetamine in his home. Moreover, Brown’s home was

relatively small, so he could readily access the firearm in his bedroom. Based

on these facts, it is plausible that Brown had engaged in drug trafficking—and

it is inarguable that the gun was in close proximity to Brown’s drugs and

related paraphernalia. The district court’s findings supporting the

enhancement were not clearly erroneous. See Coleman, 609 F.3d at 708. The

§ 2K2.1(b)(6)(B) enhancement was thus proper. See U.S.S.G. § 2K2.1 cmt.

n.14(B).

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s judgment.

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