The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50313
Plaintiff-Appellee,
D.C. No.
v. 3:19-cr-05296-
LAB-1
MARQUIS DONTE BROWN,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted May 10, 2022
Pasadena, California
Filed August 2, 2022
Before: M. Margaret McKeown and Sandra S. Ikuta,
Circuit Judges, and George B. Daniels, * District Judge
Opinion by Judge Daniels
*
Honorable George B. Daniels, United States District Judge for the
Southern District of New York, sitting by designation.
2 UNITED STATES V. BROWN
SUMMARY **
Criminal Law
The panel affirmed a sentence imposed following
Marquis Brown’s guilty plea to importing
methamphetamine under 21 U.S.C. §§ 952 & 960.
Brown contended that the district court committed a
procedural error because it improperly enhanced his
sentence in violation of the First Step Act of 2018. The First
Step Act, which in part amended 18 U.S.C. § 3553(f),
proscribes, inter alia, district court judges from using
information disclosed by a defendant in a safety valve
proffer to enhance a sentence unless the information relates
to a violent offense. Despite the district court imposing a
sentence that is below his guidelines range, Brown argued
that the court ran afoul of this proscription when it relied on
information from his safety valve proffer to deny him a
further sentence reduction. The panel held that the district
court did not impose an improper sentence “enhancement”
of a sentence under 18 U.S.C. § 3553(f)(5). The panel wrote
that the district court’s imposition of a sentence not just
below the mandatory minimum, but also below the low end
of Brown’s guidelines range, after considering a host of
aggravating mitigating factors, does not constitute an
enhancement; and that the failure to reduce a sentence is not
an enhancement.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. BROWN 3
The panel also held that the sentence is substantively
reasonable, rejecting Brown’s arguments concerning a
disparity with similarly situated offenders and the district
court’s application and weighing of the 18 U.S.C. § 3553(a)
factors.
COUNSEL
Robert L. Swain (argued), Attorney, San Diego, California,
for Defendant-Appellant.
Mark R. Rehe (argued), Assistant United States Attorney;
Daniel E. Zipp, Assistant United States Attorney, Chief,
Appellate Section, Criminal Division; Randy S. Grossman,
United States Attorney; United States Attorney’s Office, San
Diego, California; for Plaintiff-Appellee.
OPINION
DANIELS, District Judge:
In this case, Appellant Marquis Brown was arrested for
smuggling drugs across the border. He pleaded guilty to the
charge and faced a statutory ten-year mandatory minimum
sentence. He subsequently took advantage of a safety valve
proffer and became safety valve eligible for a sentence
below the mandatory minimum sentence. The district court
imposed a 78-month sentence. That sentence was below
Brown’s guidelines range of 108–135 months, but above the
71 months requested by the government, and the 42 months
recommended by his attorney and the Probation Department.
4 UNITED STATES V. BROWN
Brown now appeals, arguing that his sentence was
procedurally defective because the district court improperly
relied on information he disclosed in his safety valve proffer
to “enhance” his sentence. 1 Brown also challenges the
substantive reasonableness of his sentence. We affirm the
sentence imposed by the district court because as a matter of
law his sentence was not “enhanced,” and there was nothing
unreasonable about the sentence imposed.
I. FACTUAL BACKGROUND
Brown was arrested on December 8, 2019, when he was
caught driving into the United States from Mexico
smuggling roughly 30.38 kilograms (67 pounds) of
methamphetamine, a Schedule II Controlled Substance.
Brown had his wife, and nine-year-old stepson in the car
with him when he was arrested. 2 He ultimately pleaded
guilty to one count of importing 500 grams or more of
methamphetamine under 21 U.S.C. §§ 952 & 960. His plea
agreement preserved the right for him to appeal if he
received a sentence “above the greater of 71 months or the
statutory mandatory minimum term, if applicable.” The
Probation Department determined that Brown’s guidelines
range was 108–135 months. However, the presentence
report (“PSR”) conditionally recommended a sentence of 42
months, if Brown was safety valve eligible.
1
At sentencing the district court made reference to the fact that
during his safety valve proffer, Brown admitted he had smuggled drugs
on three prior occasions.
2
Brown’s wife was originally charged with Brown, but he informed
law enforcement that she had no knowledge that he was smuggling
drugs.
UNITED STATES V. BROWN 5
Brown provided a safety valve proffer to the
Government. During the proffer session, Brown disclosed
details about how much he was paid to smuggle drugs, how
he received the car he traveled in, and the process he went
through to try to evade law enforcement (known as “burning
the plate” of his car). Importantly, during his proffer, Brown
disclosed he made three prior drug-smuggling trips. The
Government found that Brown qualified for safety valve
relief pursuant to USSG § 5C1.2 and/or 18 U.S.C. § 3553(f).
The Government agreed that Brown’s guidelines range was
108–135 months, and recommended a sentence of 71
months. Brown’s attorney’s sentencing submission
requested a sentence consistent with Probation’s
recommendation of 42 months.
During the sentencing proceeding, as well as in his
sentencing submissions, defense counsel made sure to
highlight various § 3553 factors that weighed in Brown’s
favor. Defense counsel highlighted Brown’s family support,
his low-level role as a drug carrier, his age, and future
prospects. Defense counsel also contended that probation
“routinely recommend[s] much lesser sentences in this
district, in this type of case, even when the individual admits
at the time of arrest it was the second or third time.”
Although the Government noted that Brown was safety
valve eligible, it requested that the district court consider the
large amounts of meth involved and Brown’s previous drug-
smuggling trips.
The district court accepted that Brown was safety valve
eligible for a sentence below the mandatory minimum and
agreed that Brown’s guidelines range was 108–135 months.
However, the district court disagreed with both parties on the
extent to which Brown should receive a downward variance.
The district court sentenced Brown to 78 months in custody
6 UNITED STATES V. BROWN
and five years of supervised release. 3 The district court
stated it would be “a disingenuous exercise” to sentence
Brown even to the 71 months requested by the Government,
given the fact that Brown had smuggled drugs on prior
occasions. The district court also found the facts that Brown
brought a child with him, was involved with the drug
organization for a long period, and received a considerable
amount of money for his actions as relevant factors. The
district court ultimately found that a sentence of 78 months
was fair after “giving every possible credit to the equities.”
Brown timely appealed his sentence, challenging both
the procedural and substantive reasonableness of the district
court’s imposition of a 78-month prison sentence. On appeal
Brown contends that the district court improperly relied on
disclosures made in the safety valve proffer to enhance his
sentence in violation of 18 U.S.C. § 3553(f)(5). He also
appeals his sentence on the grounds that it is substantively
unreasonable because it is disparate compared to the
sentences of similarly situated defendants and fails to
properly apply all of the § 3553(a) factors and equities.
II. LEGAL STANDARD
We review de novo issues of statutory interpretation,
including the meaning of “enhance” under 18 U.S.C.
§ 3553(f). See United States v. Paulk, 569 F.3d 1094, 1094
(9th Cir. 2009).
We review a district court’s sentencing decision for
abuse of discretion. Gall v. United States, 552 U.S. 38, 46
3
The District Judge also recommended Brown to the Bureau of
Prisons Residential Drug Abuse Program, which could further reduce
Brown’s sentence to 68 months in custody if he were to complete the
program.
UNITED STATES V. BROWN 7
(2007). This standard applies to both procedural challenges
(e.g., improperly considering certain facts) and substantive
challenges to a district court’s sentencing decision. United
States v. Spangle, 626 F.3d 488, 497 (9th Cir. 2010). When
reviewing a sentence determination, we “give due deference
to the district court’s decision that the § 3553(a) factors, on
a whole, justify the extent of the variance. The fact that the
appellate court might reasonably have concluded that a
different sentence was appropriate is insufficient to justify
reversal of the district court.” Gall, 552 U.S. at 51.
III. BROWN’S SENTENCE WAS NOT
IMPROPERLY ENHANCED
Brown contends that the district court committed a
procedural error because it improperly enhanced his
sentence in violation of the First Step Act of 2018. The First
Step Act, which in part amended 18 U.S.C. § 3553(f),
proscribes, inter alia, district courts judges from using
information “disclosed by a defendant” in a safety valve
proffer “to enhance the sentence of the defendant unless the
information relates to a violent offense.” Pub. L. No. 115-
391, 132 Stat. 5194 (Dec 21, 2018). Despite the district
court imposing a sentence that is below his guidelines range,
Brown argues that the court ran afoul of this proscription
when it relied on information from the safety valve proffer
to deny him a further sentence reduction. 4
Neither our circuit nor any other court has specifically
interpreted “enhance” in this context. “When interpreting a
statute, ‘our inquiry begins with the statutory text, and ends
there as well if the [statute's] text is unambiguous.’”
4
The parties agree that the Government did not charge Brown with
a violent offense.
8 UNITED STATES V. BROWN
Laidlaw's Harley Davidson Sales, Inc. v. Comm'r of Internal
Revenue, 29 F.4th 1066, 1070 (9th Cir. 2022) (quoting
United States ex rel. Hartpence v. Kinetic Concepts, Inc.,
792 F.3d 1121, 1128 (9th Cir. 2015) (en banc) (alteration in
original)). This means we look at the words in the statute
and apply “‘their ordinary, contemporary, common
meaning.’” Chubb Custom Ins. Co. v. Space Sys./Loral, Inc.,
710 F.3d 946, 958 (9th Cir. 2013) (quoting Perrin v. United
States, 444 U.S. 37, 42 (1979)).
“Enhance” means to “heighten, increase . . .” Enhance,
Merriam Webster Dictionary (10th ed. 1998). For purposes
of the Ex Post Facto clause, the United States Supreme
Court ruled that “enhance” is synonymous with “increase.”
See California Dept. of Corrections v. Morales, 514 U.S.
499, 505–06 (1995). Specifically, the Supreme Court used
the statement “to enhance the measure of punishment”
interchangeably with “increasing the measure of
punishment,” when assessing whether a state law violated
the Ex Post Facto clause. Id. at 506, 514.
We have regularly held that the denial of a sentencing
benefit or reduction is not an “increase in punishment.” See,
e.g. United States v. Waters, 771 F.3d 679 (9th Cir. 2014)
(reviewing whether amendments to a statute violated a
constitutional prohibition on when States can increase the
punishment for a defendant’s crime). In Waters, the
appellant argued that a statute the district court relied on to
deny his request for sentence reduction violated the Ex Post
Facto Clause. Id. at 680. We held that the amendments
merely limited the appellant’s ability to reduce his sentence
and “[did] not increase the punishment for his crime[.]” Id.
at 681. Various courts have routinely upheld this principle.
See United States v. Kouwenhoven, 602 F.2d 234, 238 (9th
Cir. 1979) (“Denial of [a] motion for a sentence reduction
UNITED STATES V. BROWN 9
[does] not increase the sentence.”); United States v. Colon,
707 F.3d 1255, 1259 (11th Cir. 2013) (“So long as the effect
of post-conduct amendments to the guidelines is not to
increase a defendant's punishment beyond what it would
have been without those amendments . . . there is no ex post
facto problem.”); United States v. Cordell, 924 F.2d 614, 619
(6th Cir. 1991) (per curiam) (“Denial of a downward
adjustment under [the Guidelines] does not constitute a
penalty or an enhancement of sentence.”).
More specifically, the Eighth Circuit has recently held
that the denial of a sentence reduction under the First Step
Act is not an improper “upward variance.” See United States
v. Black, 992 F.3d 703, 705 (8th Cir. 2021). In Black, the
defendant argued that the district court’s refusal to use its
discretion under the First Step Act to reduce his 262-month
sentence constituted an unlawful sentence increase. Id. at
704–05. The Eighth Circuit held that “the district court did
not impose an unlawful sentence increase; it merely declined
to exercise its discretion to grant a sentence reduction.” Id.
at 705.
This holding informs our inquiry into whether a district
court improperly enhanced a sentence pursuant to
§ 3553(f)(5). It counsels that a district court does not
improperly enhance a sentence under § 3553(f)(5) when it
declines to provide a sentencing benefit or reduction to a
defendant. While the Eighth Circuit’s holding does not
provide a prescriptive definition of enhancement, it is a
useful principle to consider when determining whether the
district court improperly enhanced a sentence.
We hold that the district court did not impose an
improper sentence enhancement here. Brown contends that
because the district court used information from the proffer
in determining his final sentence, it was an improper
10 UNITED STATES V. BROWN
enhancement. It is clear that the district court considered
information disclosed in the safety valve proffer to impose a
sentence, such as Brown’s previous drug smuggling trips.
This is not prohibited. The district court noted the previous
drug smuggling trips, but also mentioned various other
aggravating factors, including the nine-year-old being in the
car, the amount and type of drug involved, and the impact on
the community. The sentencing court considered the safety
valve information in conjunction with other mitigating and
aggravating factors in its determination of a downward
sentence variance. The district court imposed a sentence of
78 months—a sentence not just below the mandatory
minimum, but also 30 months below the low end of Brown’s
guidelines range. This does not constitute an enhancement.
Brown takes issue with the fact that the sentence was not
as low as he had requested. But the failure to reduce a
sentence is not an enhancement. Moreover, we do not take
the First Step Act’s proscription as Congress stripping away
a district court’s discretion. All that § 3553(f)(5) prohibits
is using information from a safety valve proffer “to enhance
the sentence[.]” § 3553(f)(5). Here, Brown got the benefit
of the safety valve reduction, resulting in a sentence below
both the mandatory minimum and his guidelines range. This
is not an improper “enhancement” of a sentence under
§ 3553(f)(5).
IV. THE SENTENCE WAS SUBSTANTIVELY
REASONABLE
Brown also challenges his sentence as being
substantively unreasonable for being “wildly out of line”
compared to the sentences of “similarly situated” offenders
and for the district court improperly weighing the equities in
UNITED STATES V. BROWN 11
this case. Brown’s challenge fails. There was nothing
unreasonable about the sentence the district court imposed. 5
First, Brown argues that his sentence is “over double the
average in this district” for similarly situated defendants. He
relies on the fact that the PSR stated, “a variant sentence
would be appropriate in order to address the sentencing
disparities in this district[.]” Brown also highlights the
Government’s own submissions in other cases, which note
that “the mean and median sentences for drug trafficking
crimes imposed in the Southern District of California during
fiscal year 2020 were 30 months and 38 months in custody,
respectively.”
The Government correctly highlights the flaws in
Brown’s arguments. Brown’s statistics are overly broad and
fail to demonstrate that they were based on any similarly
situated defendants. See United States v. Dewey, 599 F.3d
1010, 1017 (9th Cir. 2010) (defendant failed to demonstrate
an unfair disparity where defendant made “no[] attempt to
establish that” the person to whom he compared himself
actually had a “record . . . similar to his.”). Brown’s statistics
do not identify whether they are based on defendants
convicted of importing the same amount and type of drugs,
brought a nine-year old child when committing the crime,
and had smuggled drugs on prior occasions. In addition,
Brown relies on the probation officer’s statement in the PSR
that a 42-month sentence “would be in line with other
custodial sentences seen in this district for similarly situated
defendants.” But the probation officer did not provide any
statistics to support that assertion, and the probation officer
5
We grant Brown’s motion for us to take judicial notice of the
Government’s motion in a separate case regarding sentencing statistics
of drug trafficking cases in the Southern District of California.
12 UNITED STATES V. BROWN
was not aware of Brown’s three prior drug smuggling trips.
Brown has therefore failed to meet his burden to prove a
disparity. Id. at 1017.
Second, Brown argues that his sentence was not
individualized and that the district court did not fairly apply
all of the § 3553(a) factors. Brown’s contention is clearly
belied by the record. The sentencing judge stated that he
read the PSR; highlighted the aggravating and mitigating
factors, such as the amount and type of drug, Brown bringing
along a nine-year old child, and the potential impact of the
crime on the community; and noted the equities in Brown’s
favor as argued by his attorney, such as the recent birth of
his child and employment history. “The weight to be given
the various factors in a particular case is for the discretion of
the court.” United States v. Gutierrez-Sanchez, 587 F.3d
904, 908 (9th Cir. 2009). Given the “due deference”
provided to the district court’s sentencing decision, Brown
cannot challenge the district court’s decision on the basis
that he disagrees with the weight the court afforded all of the
factors. Gall, 552 U.S. at 51.
The district court did not abuse its discretion when it
imposed a sentence below both the mandatory minimum and
the sentencing guidelines and articulated the reasonable
basis for its determination. 6 Thus, there is no basis to
overturn Brown’s sentence for being substantively
unreasonable.
6
It should be noted that Brown’s plea agreement waived any right
to appeal any sentence below 71 months imprisonment, a possible
sentence 7 months below the sentence actually imposed.
UNITED STATES V. BROWN 13
V. CONCLUSION
We affirm Brown’s sentence. In this case, the district
court imposed a sentence well below Brown’s guidelines
range after considering a host of aggravating and mitigating
factors. Even if these factors included information disclosed
in Brown’s safety valve proffer, Brown’s failure to receive
an additional reduction is not an improper enhancement.
The district did not abuse its discretion in imposing its
sentence.
AFFIRMED.