permitting presumption of reasonableness for within-Guidelines sentence
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- permitting presumption of reasonableness for within-Guidelines sentence
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The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5034
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
REGINALD LOVE BROWN, a/k/a Love Brown,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:10-cr-00322-D-2)
Submitted: June 27, 2012 Decided: July 16, 2012
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jorgelina E. Araneda, ARANEDA LAW FIRM, P.C., Raleigh, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Joshua L. Rogers, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Reginald Love Brown was sentenced to life in prison
after a jury convicted him of one count each of conspiracy to
interfere with commerce by robbery, in violation of 18 U.S.C.
§ 1951(b)(1) (2006); interference with commerce by robbery and
aiding and abetting, in violation of 18 U.S.C. §§ 2, 1951
(2006); and using and carrying firearms during and in relation
to a crime of violence and aiding and abetting, in violation of
18 U.S.C.A. §§ 2, 924(c) (West 2000 & Supp. 2011). On appeal,
Brown asserts that the district court erred when it: (1) denied
his suppression motion because he argues that the pretrial
identification process was impermissibly suggestive and, thus,
violated his due process rights; (2) denied his Fed. R. Crim. P.
29 motion because he argues that the Government’s evidence was
insufficient to convict him of the three counts with which he
was charged; and (3) that his life sentence is unreasonable. 1
Finding no error, we affirm.
1
Brown has filed a motion to file a pro se supplemental
brief, along with a pro se supplemental brief. Because Brown is
represented by counsel who has filed an extensive merits brief,
as opposed to a brief pursuant to Anders v. California, 386 U.S.
738 (1967), he is not entitled to file a pro se supplemental
brief and we deny his motion. See United States v. Penniegraft,
641 F.3d 566, 569 n.1 (4th Cir.) (denying motion to file pro se
supplemental brief because the defendant was represented by
counsel), cert. denied, 132 S. Ct. 564 (2011).
2
When considering a district court’s ruling on a
suppression motion, we review the district court’s legal
conclusions de novo and its factual findings for clear error.
United States v. Foster, 634 F.3d 243, 246 (4th Cir. 2011).
When a suppression motion has been denied by the district court,
this court construes the evidence in the light most favorable to
the Government. Id. A factual finding is clearly erroneous if
“the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.”
United States v. Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008)
(internal quotation marks and citation omitted). When alternate
views of the evidence are plausible in light of the record as a
whole, “the district court’s choice between them cannot be
clearly erroneous.” United States v. Stevenson, 396 F.3d 538,
542 (4th Cir. 2005) (internal quotation marks, brackets and
citation omitted).
Due process principles prohibit the admission at trial
of an out-of-court identification obtained through procedures
“so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification.”
Simmons v. United States, 390 U.S. 377, 384 (1968). “The Due
Process Clause is not implicated, however, if the identification
was sufficiently reliable to preclude the substantial likelihood
of misidentification.” United States v. Saunders, 501 F.3d 384,
3
389 (4th Cir. 2007) (concluding that even though a photo display
was impermissibly suggestive, the identification was still
reliable and did not violate due process) (internal quotation
marks and citation omitted).
Thus, in order to determine whether a challenged
identification procedure should be suppressed, the court engages
in a two-step analysis. First, the defendant “must prove that
the identification procedure was impermissibly suggestive.”
Holdren v. Legursky, 16 F.3d 57, 61 (4th Cir. 1994). If it was
not, the inquiry ends. If the procedure was impermissibly
suggestive, “the court then must determine whether the
identification was nevertheless reliable under the totality of
the circumstances.” Id. A review of law enforcement’s
photographic array in this case confirms that the district
court’s factual findings were not clearly erroneous and, thus,
the photographic array was not impermissibly suggestive. 2
We review the denial of a Rule 29 motion de novo. See
United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005).
When a Rule 29 motion was based on a claim of insufficient
evidence, the jury’s verdict must be sustained “if there is
2
Even if we determined that the photographic array was
impermissibly suggestive, we nonetheless conclude that the
identifications were reliable. See Manson v. Brathwaite, 432
U.S. 98, 114 (1977); Satcher v. Pruett, 126 F.3d 561, 566 (4th
Cir. 1997).
4
substantial evidence, taking the view most favorable to the
Government, to support it.” United States v. Abu Ali, 528 F.3d
210, 244 (4th Cir. 2008) (internal quotation marks and citations
omitted). Substantial evidence is “evidence that a reasonable
finder of fact could accept as adequate and sufficient to
support a conclusion of a defendant’s guilt beyond a reasonable
doubt.” United States v. King, 628 F.3d 693, 700 (4th Cir.
2011) (internal quotation marks omitted).
In resolving issues of substantial evidence, the court
does not reweigh the evidence or reassess the factfinder’s
determination of witness credibility, and we must assume that
the jury resolved all contradictions in testimony in favor of
the Government. See United States v. Roe, 606 F.3d 180, 186
(4th Cir.), cert. denied, 131 S. Ct. 617 (2010). Thus, a
defendant challenging the sufficiency of the evidence faces a
heavy burden. See United States v. Beidler, 110 F.3d 1064, 1067
(4th Cir. 1997).
Brown asserts that the testimony against him was
untruthful and insufficient to find that he was involved in the
crimes of which he was convicted, essentially because there were
contradictions in that testimony. Because we must assume that
the jury resolved all contradictions in testimony in favor of
the Government, see Roe, 606 F.3d at 186, we conclude that it
was reasonable for the jury to accept the Government’s evidence
5
as adequate and sufficient to find Brown guilty of the offenses
with which he was charged beyond a reasonable doubt.
Accordingly, we affirm Brown’s convictions.
We also affirm Brown’s life sentence. After United
States v. Booker, 543 U.S. 220 (2005), this court reviews a
sentence for reasonableness. Gall v. United States, 552 U.S.
38, 51 (2007). The first step in this review requires us to
ensure that the district court committed no significant
procedural error. United States v. Evans, 526 F.3d 155, 161
(4th Cir. 2008). Procedural errors include “failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
[18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately
explain the chosen sentence — including an explanation for any
deviation from the Guidelines range.” Gall, 552 U.S. at 51.
“[I]f a party repeats on appeal a claim of procedural
sentencing error . . . which it has made before the district
court, we review for abuse of discretion” and will reverse
unless the court can conclude “that the error was harmless.”
United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010).
However, we review unpreserved non-structural sentencing errors
for plain error. Id. at 576-77.
6
If, and only if, we find the sentence procedurally
reasonable can we consider the substantive reasonableness of the
sentence imposed. United States v. Carter, 564 F.3d 325, 328
(4th Cir. 2009). If the sentence is within the Guidelines
range, the court presumes on appeal that the sentence is
reasonable. United States v. Go, 517 F.3d 216, 218 (4th Cir.
2008); see Rita v. United States, 551 U.S. 338, 346-56 (2007)
(permitting presumption of reasonableness for within-Guidelines
sentence).
Brown’s argument to the contrary, the district court
did not increase his base offense level under U.S. Sentencing
Guidelines Manual (“USSG”) § 4A1.1(e) (2010), which mandates
that an offense level be enhanced one level “for each prior
sentence resulting from a conviction of a crime of violence that
did not receive any points” under the other provisions of USSG
§ 4A1.1. Rather, the district court increased Brown’s offense
level under USSG § 4A1.1(d) (2010), because Brown was on
probation at the time he committed the offenses of which he was
convicted, a fact that he does not dispute on appeal.
Moreover, although Brown challenges the propriety of
one of three prior convictions used to support his career
offender status, because only two prior felony convictions of
either a crime of violence or a controlled substance offense are
necessary for career offender status, see USSG § 4B1.1(a)
7
(2010), Brown would be classified as a career offender
regardless of whether the challenged conviction were a proper
predicate offense. See Fed. R. Crim. P. 52(a) (“Any error,
defect, irregularity, or variance that does not affect
substantial rights must be disregarded.”).
We also discern no error in the district court’s
decision to increase Brown’s offense level for obstruction of
justice. It is well-established that so long as the district
court sentences a defendant within the statutory maximum
authorized by the jury findings or guilty plea, a district court
can consider facts that it finds by a preponderance of the
evidence to exercise its discretion in determining an
appropriate sentence within that maximum. See, e.g., United
States v. Grubbs, 585 F.3d 793, 798-99 (4th Cir. 2009) (holding
that, for sentencing purposes, a district court may consider
uncharged conduct found by a preponderance of the evidence);
United States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008)
(holding that, so long as the Guidelines range is treated as
advisory, a sentencing court may consider and find facts by a
preponderance of the evidence, provided that those facts do not
increase a sentence beyond the statutory maximum). We conclude
that Brown’s due process rights were not violated when the
district court considered Brown’s relevant conduct and increased
his base offense level two levels for obstruction of justice.
8
Thus, because Brown’s life sentence is a within-
Guidelines sentence, we afford it the presumption of
reasonableness. Go, 517 F.3d at 218. Although Brown attempts
to rebut this presumption by arguing that his sentence is
disproportionate to his co-defendants and violates the Eighth
Amendment, we reject these arguments. See, e.g., United States
v. D’Anjou, 16 F.3d 604, 613-14 (4th Cir. 1994) (“[T]he
imposition of life without parole is not cruel and unusual.”).
Based on the foregoing, we deny Brown’s motion to file
a pro se supplemental brief and affirm the district court’s
judgment. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
9