United States v. Jamel Brown

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-3413

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

JAMEL H. B ROWN,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 11 CR 00202—Sarah Evans Barker, Judge.

A RGUED A PRIL 5, 2013—D ECIDED M AY 20, 2013

Before E ASTERBROOK, Chief Judge, and F LAUM and

W OOD , Circuit Judges.

F LAUM, Circuit Judge. Following a high-speed chase,

an assault on an officer, and a four-hour standoff at

a hotel, Jamel Brown was arrested and charged with

unlawful possession of a firearm by an armed career

criminal, bank robbery, interference with interstate com-

merce by robbery, and brandishing a firearm during

a crime of violence. Brown pleaded guilty to unlawful

possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1)

2 No. 12-3413

and 924(e) without a plea agreement and moved to con-

tinue the remaining counts of the indictment until after

his sentencing on the firearm possession charge. Prior

to sentencing, Brown objected to four of the proba-

tion officer’s factual representations contained in his

Presentence Investigation Report (“PSR”) and objected

to the PSR’s application of a two-level enhancement

for reckless endangerment during flight. After hearing

the evidence presented at sentencing, the district court

imposed an above-guidelines sentence of 400 months’

imprisonment. Brown appeals his sentence, claiming

a violation of Federal Rule of Criminal Procedure

32(i)(3)(B), which requires a district court to rule on

any disputed matter in the PSR that will affect the

court’s sentencing determination. For the reasons set

forth below, we affirm the sentence imposed by the

district court.

I. Background

A. Factual Background

On August 8, 2011, Officer Joshua Fritsche observed

Brown driving his vehicle at a high rate of speed in sub-

urban Indianapolis. After Officer Fritsche initiated a

pursuit, Brown increased his speed to approximately

80 miles per hour, veered in and out of traffic, disre-

garded stop signs, and at last, crashed his car into

a trailer in the parking lot of a hotel. When his car came

to rest, Brown fled on foot into the hotel lobby, ignoring

the officer’s orders to stop. Once in the lobby, Brown

could not go any farther because entry to the remainder

No. 12-3413 3

of the hotel was limited to those individuals possessing

an access card. Officer Fritsche followed Brown into

the lobby and ordered him to get on the ground. When

Brown refused to comply, the officer deployed his

taser, and Brown fell to the floor. After a quick recovery

from the stun, however, Brown stood up and re-

peatedly punched Officer Fritsche in the face. The

officer lost consciousness and collapsed.

Brown then fled from the lobby and ran back into

the parking lot from which he had entered. Three

men followed him out the door: Brandon McKee, the

hotel manager; Andrew Spears, a hotel maintenance

employee; and Crandall Myers, a hotel guest. As Brown

fled, a car pulled in front of him and blocked his

path. Brown attempted to enter the car, and the

hotel guest occupying the car saw Brown brandish a

firearm. Brown then turned and pointed his Tec-9 semi-

automatic pistol at each of the three men who had

followed him from the lobby into the parking lot. The

men watched as Brown pointed the firearm in their

direction and pulled the trigger. Fortunately, the gun

only clicked and the weapon did not discharge. The

gun’s loaded magazine and one round of ammunition

were later recovered from the ground next to where

Brown had been standing.

From the parking lot, Brown ran to the rear of the

hotel, where he broke in by crashing through a window.

Bleeding profusely, Brown began knocking on hotel

room doors and attempted to bribe hotel guests to

allow him to hide from the police in their rooms. When

4 No. 12-3413

all of the guests refused, Brown entered an occupied

room, and with one hand in his waistband, threatened

the guest and ordered him not to leave. About four

hours later, SWAT officers entered the room and

arrested Brown.

B. Procedural Background

On October 19, 2011, a grand jury returned an indict-

ment charging Brown with one count of unlawful pos-

session of a firearm by an armed career criminal in vio-

lation of 18 U.S.C. §§ 922(g)(1) and 924(e), one count

of bank robbery in violation of 18 U.S.C. § 2113(a), one

count of interference with interstate commerce by

robbery in violation of 18 U.S.C. § 1951, and one count

of brandishing a firearm during a crime of violence in

violation of 18 U.S.C. § 924(c). Brown pleaded guilty to

the firearm possession charge on June 29, 2012 and

moved to continue the remaining counts of the indict-

ment until after his sentencing on the firearm convic-

tion. The court accepted Brown’s plea and granted his

motion.

Prior to sentencing, the probation officer assigned

to Brown’s case prepared a PSR for the parties and the

court. The probation officer calculated Brown’s ad-

justed offense level at thirty-six, which included a four-

level enhancement for the use of a firearm in connec-

tion with another felony offense, a six-level enhance-

ment for assaulting a law enforcement officer during

the course of flight from the offense, and a two-level

enhancement for recklessly creating a substantial risk

No. 12-3413 5

of death or serious bodily injury in the course of fleeing

from a law enforcement officer. After the probation

officer subtracted two points for acceptance of responsi-

bility, Brown’s total offense level came to thirty-four.

Together with Brown’s criminal history category of VI,

the probation officer determined Brown’s guidelines

range for sentencing to be 262- to 327-months’ imprison-

ment.

After reviewing the PSR, Brown submitted objections

to the probation officer who then issued a supple-

mental addendum to the PSR. In the addendum, the

probation officer indicated that Brown had objected to

several factual allegations contained in the PSR and

to the two-level enhancement for recklessly creating a

substantial risk of death or serious bodily injury

during flight from an officer under U.S.S.G. § 3C1.2.

According to the addendum, Brown denied that he

ran stop signs, crossed traffic lanes, and crashed

into a parked car; that he attempted to remove Officer

Fritsche’s firearm after he lost consciousness; that he

attempted to carjack the hotel guest; and that he pulled

the trigger of the gun and attempted to shoot the

witnesses during the incident. The probation officer

stood by the information contained in the PSR, but

clarified that the parked vehicle Brown had crashed

into in the hotel parking lot was a utility trailer and not

a car.

When Brown’s sentencing hearing commenced on

October 3, 2012, the district court verified that Brown

and his counsel had thoroughly reviewed the PSR and

6 No. 12-3413

the other documents pertinent to sentencing, in-

cluding the government’s sentencing memorandum in

which the government argued for a significant upward

variance from the guidelines range. The judge then ex-

plained the process it would follow in sentencing

Brown and announced that the probation officer had

calculated Brown’s offense level to be thirty-four and

had assigned him to criminal history category VI. The

judge noted that defense counsel had raised an objection

to the details contained in five paragraphs of the PSR

relating to the offense conduct, and confirmed with

defense counsel that Brown had a different view of the

facts. The court then stated, “I think I’ll not resolve

the matter as a factual matter, but I’ll hear from

Mr. Brown as to his version of the facts, if he wishes to

recount them. So I won’t specifically rule on that

objection on that basis.” Shortly thereafter, the judge

stated, “[m]y own review of the presentence report

affirms the treatment that has been given these issues

by the [probation officer] in her presentence report. So

I adopt this formulation as my own and it will be the

basis on which I make the remaining decisions.”

The judge then indicated that Brown’s guidelines

range for sentencing would be 262 to 327 months. After

addressing restitution and the applicable special assess-

ment, the judge asked defense counsel whether he

“agree[d] with that guideline extrapolation,” and coun-

sel responded that he did.

The judge then turned to Brown, who offered a

lengthy allocution to the court. Brown first apologized to

Officer Fritsche and then explained his personal history.

No. 12-3413 7

He indicated that his addiction to drugs had caused

him to take several wrong turns, but that the recent

death of his daughter and his arrest on the firearm pos-

session charge led him to change his attitude and his

outlook on life. Brown also explained that he disagreed

with the probation officer’s representation of the facts

in the PSR. He maintained that he showed the by-

standers at the hotel the gun but never intended to shoot

anyone and never chambered a round. During Brown’s

allocution, the district judge responded to Brown’s state-

ments and shared her view of the facts and circum-

stances relevant to sentencing, giving Brown an oppor-

tunity to comment.

Without addressing the disputed facts or the objec-

tion to the two-level enhancement, Brown’s counsel

presented his argument to the court. He focused on

Brown’s drug addiction and suggested that a sentence

of twenty years in prison would be more than sufficient

to reflect the seriousness of the offense, to protect the

public, and to allow Brown the opportunity to over-

come his addiction and gain the maturity necessary

to refrain from drug use and criminal activity.

Next, the government called several witnesses to

testify about the events that transpired on August 8,

2011. Spears, McKee, and Officer Fritsche testified as eye-

witnesses to the crime and Michael Hubbs, a captain

in the Marion County Sheriff’s Office, testified as the

lead investigator on the case. During his testimony,

Officer Hubbs relayed statements from three hotel

guests who had witnessed Brown’s conduct at the

8 No. 12-3413

hotel: Myers, who followed Brown out of the hotel and

back into the parking lot; Jeffery Rickert, who was

driving the car that blocked Brown on his way out of

the hotel; and Joseph McGill, who was occupying the

hotel room Brown entered after breaking into the rear

portion of the hotel.

Following the testimony, the government argued for

an upward variance from the guidelines. The govern-

ment noted that Brown had already received a two-

point enhancement under § 3C1.2 for posing a substan-

tial risk of death or bodily injury during flight but

argued that an upward variance would nonetheless be

appropriate because Brown’s conduct posed a risk to

more than one individual. The government also argued

that the enhancement for assaulting an officer in the

course of flight could not fully capture the extent of the

physical injury Brown inflicted on Officer Fritsche.

Finally, the government explained that Brown’s criminal

history category underrepresented the seriousness of

his criminal history and the likelihood that he would

commit other crimes. The court then allowed defense

counsel the opportunity to respond. At that point,

Brown’s attorney stated that he believed the “guide-

lines accurately encompass all of the behavior that the

defendant has been involved in, and that the Govern-

ment is bringing to the Court’s attention.” Brown’s at-

torney emphasized that “[t]he flight, the obstruction

of justice, [and] the assault on the officer” were all

taken into account by the guidelines. He did state, how-

ever, that there was no evidence that Brown had

attempted to carjack the hotel guest and that one of the

No. 12-3413 9

witnesses had stated he heard gunshots, when in fact

the gun did not go off. Brown’s attorney clarified that

“whether or not [Brown] tried to shoot anyone or

carjack anyone or take a gun doesn’t affect the guide-

line calculation at all. The Government gets the en-

hancements that it’s looking for and that probation

found without any of those things.” Instead, defense

counsel explained that the government was asking the

court to consider those facts in deciding whether to vary

upward from the guidelines range and that he did

not believe the government had demonstrated the

accuracy of those facts.

In its final argument, the government agreed with

defense counsel that Brown’s “efforts . . . to kill four

people” did not affect the guidelines calculation and

noted that those actions instead supported its argument

for an upward variance from the guidelines. The gov-

ernment reminded the court that four witnesses had

stated that Brown pointed a gun in the direction of the

three men who had followed him out of the hotel

and three of those witnesses recalled hearing clicks.

In recommending a sentence of 480 months’ imprison-

ment, the government emphasized that the only way to

satisfy the requirements of § 3553(a) would be to

impose a sentence well above Brown’s guidelines range.

After hearing argument from both sides, the judge

began her explanation of the sentence. At the outset,

she stated, “it is true that we have a correct guidelines

application here. At least nobody’s disagreed with it.

I don’t know of any reason why it is subject to that sort

10 No. 12-3413

of disagreement.” The judge then noted the “horrific

facts” related to the nature and circumstances of the

offense. She explained that Brown had driven recklessly

through a heavily trafficked area, brutally assaulted

Officer Fritsche, and pointed a gun at the men who

were pursuing him. The judge continued that after the

gun malfunctioned, Brown persisted in his escape,

running to another part of the hotel and breaking

through a window before “terrorizing” people inside

the hotel. She concluded that the guidelines properly

computed at 262 to 327 months did not “take into

account the cumulative effect of [Brown’s] life pattern

or the facts that surround this case and, in particular,

the attempts that were made to shoot and kill four peo-

ple” and ultimately imposed a sentence of 400 months.

II. Discussion

On appeal, Brown does not argue that the district

court imposed a substantively unreasonable sentence.

Instead, he contends that the district court committed

procedural error and violated his right to due process

by not explicitly ruling on his objections to the PSR

prior to sentencing. See Fed. R. Crim. P. 32(i)(3)(B).

Brown also maintains that the district court relied on

disputed facts to apply a two-level sentencing enhance-

ment for reckless endangerment during flight. He sug-

gests, however, that this court’s review of the sentencing

enhancement’s applicability is an “impossibility” because

the district court did not make the necessary findings

on the disputed facts supporting the enhancement.

No. 12-3413 11

We disagree and because we find no procedural error,

we affirm the sentence imposed by the district court.

A. Compliance with Rule 32(i)(3)(B)

Federal Rule of Criminal Procedure 32(i)(3)(B) directs

district courts to rule on any disputed matter in the

PSR prior to sentencing. Fed. R. Crim. P. 32(i)(3)(B). This

rule protects a defendant’s right to be sentenced on the

basis of accurate information and provides a record of

the disposition and resolution of controverted facts in

the PSR. United States v. Eschweiler, 782 F.2d 1385,

1387 (7th Cir. 1986) (addressing the precursor to Rule

32(i)(3)(B)). At the time of its enactment, Rule 32(i)(3)(B)’s

predecessor required a sentencing judge to make writ-

ten findings concerning disputed factual matters or

a written determination that it would not rely on the

disputed matter during sentencing. See Fed. R. Crim.

P. 32(c)(3)(D) (1988). But the rule has been amended

twice since its enactment, limiting the need for an

explicit determination to only when a defendant’s ob-

jection addresses a controverted matter that will affect

sentencing. See Fed. R. Crim. P. 32 Advisory Comm.

Note, 2002 Amend. (2006); Fed. R. Crim. P. 32 Advisory

Comm. Note, 1994 Amend. (1994).

Since its most recent revision in 2002, we have charac-

terized the requirement outlined in Rule 32(i)(3)(B) as

one imposing a “minimal burden.” United States v.

Heckel, 570 F.3d 791, 796 (7th Cir. 2009). A sentencing

12 No. 12-3413

court must still make findings on the record to resolve

a factual dispute between the parties, but “[t]he dis-

trict court can often satisfy the rule by adopting the

proposed findings in the [PSR], even as to contested

facts, so long as the PSR articulates a sufficiently clear

basis for the sentence and the reviewing court can be

sure that the district court made a decision of design

rather than of convenience.” United States v. Sykes, 357

F.3d 672, 674 (7th Cir. 2004) (internal citations and quota-

tion marks omitted); see also Heckel, 570 F.3d at 796 (“Al-

though the district court did not explicitly address

[the defendant’s] objection to the PSR’s treatment of

his theft conviction, the court referenced the information

in the PSR and specifically adopted the PSR’s findings.”).

Here, after noting Brown’s objections to the PSR,

the district judge categorically adopted the probation

officer’s findings. Brown contends, however, that the

timing of the district court’s adoption renders it insuf-

ficient to comply with Rule 32(i)(3)(B)’s directive. Early

in the sentencing hearing, the district judge announced

that she would not rule on the disputed facts contained

in the PSR, but that she would hear from the defendant

as to his version of the facts. The district judge made

this statement shortly before she endorsed the PSR in

its entirety, which occurred before Brown addressed the

court and before the government presented its evidence.

At oral argument, the government explained that its

best interpretation of the district judge’s initial state-

ment was that she did not intend to rule on the

disputed facts at that particular time. If the district court

had indicated its acceptance of the government’s version

No. 12-3413 13

of the facts only by adopting the factual allegations in

the PSR immediately after it vowed to reserve its deci-

sion on the disputed facts until after Brown’s argument,

we would hesitate before finding compliance with Rule

32(i)(3)(B). See, e.g., United States v. Wolfe, 71 F.3d 611, 614-

15 (6th Cir. 1995) (explaining that “neither the right to

allocution . . . nor the procedures for dealing with con-

troverted matters . . . indicate that a judge may not state

his ruling on the objections raised to the PSR, or other

sentencing matters, before the defendant or his counsel

is given a chance to speak,” but urging the opposite

sequence to protect the appearance of fairness).

But the district court’s discussion of the disputed

facts did not end there. After hearing from the de-

fendant and listening to the evidence presented by the

government, the judge made several statements that

confirmed her acceptance of the probation officer’s

version of the facts. In addressing the “horrific” nature

of the offense at issue, the judge stated that Brown

had driven a car through a heavily trafficked area

“really without regard to anybody else,”and that his

assault on the officer was “breathtaking.” She acknowl-

edged that Brown had pointed the firearm at the wit-

nesses in the hotel parking lot “and by some

unbelievable good fortune” the gun malfunctioned.

The judge explained to Brown that the lack of any

firing “was good for you in the sense that you’re not

before some court for murder charges, but it was [also]

good for all of the people who were looking at the

short end of that gun and thinking their lives were

about to end.” When the gun malfunctioned, the judge

14 No. 12-3413

stated that Brown continued with his attempted escape,

shattering a window in the back of the hotel and

then “terrorizing” the people inside while looking for

a place to hide.

After addressing these facts, the district judge con-

cluded that the properly calculated guidelines range of

262 to 327 months could not take into account the egre-

gious offense conduct and, “in particular, the attempts

that were made to shoot and kill four people.” Accord-

ingly, she sentenced Brown to 400 months in prison.

Given the minimal burden imposed on the dis-

trict court to comply with Rule 32(i)(3)(B)’s instruction

to rule on all disputed matters that will affect sen-

tencing, we find that the district court met that burden

in this case. See Sykes, 357 F.3d at 674. The statements

the district judge made after hearing the evidence

and prior to imposing the sentence clearly indicated

her acceptance of the version of the facts in the PSR

and provided this court with a sufficient record to

engage in effective appellate review. See United States v.

Cureton, 89 F.3d 469, 473 (7th Cir. 1996) (explaining

the district court’s obligation to address a defendant’s

objections and provide a record of the disposition so

that the appellate court may conduct an effective

review of the sentencing); see also United States v.

Zehrung, No. 11-1974, ___ F.3d ___, 2013 WL 1668214, at *3

(1st Cir. Apr. 18, 2013) (finding that a court may

“implicitly resolve[]” a factual dispute when its “state-

ments and the sentence imposed show[] that the facts

were decided in a particular way” and the resolu-

tion permits effective appellate review (internal quota-

No. 12-3413 15

tion marks omitted)). That the district court wholly

adopted the PSR at the outset of the hearing does not

alter our view of the district court’s compliance with

the Rule. The judge likely developed her own view of the

facts at the outset and did not change her posi-

tion after hearing the evidence and argument from

both sides. What is essential is that the district judge

articulated her view of the disputed facts and explained

how they impacted her ultimate sentencing determination.

B. Application of the Two-Level Reckless Endanger-

ment Enhancement

To the extent Brown also contends that the district

court erred in applying a two-level enhancement

for reckless endangerment during flight, we disagree.

Section 3C1.2 of the guidelines requires a sentencing

court to enhance a defendant’s base offense level by

two points where “the defendant recklessly created a

substantial risk of death or serious bodily injury to

another person in the course of fleeing from a law en-

forcement officer.” U.S.S.G. § 3C1.2. Having concluded

that the district court committed no error in ruling

on the disputed facts affecting sentencing, the court’s

application of the two-level enhancement for reckless

endangerment was proper. But we also agree with the

government that regardless of the district court’s res-

olution of the disputed facts, the enhancement could

have been supported solely by the undisputed facts

in the PSR.

16 No. 12-3413

At sentencing, Brown did not contest that he was trav-

eling at a high rate of speed during Officer Fritsche’s

pursuit or that he pointed a firearm at the three indi-

viduals who followed him out of the hotel as well as

the individual who blocked Brown’s path of escape in

the hotel parking lot. While speeding excessively,

Brown could have lost control and injured other drivers

or pedestrians on or near the road. See United States v.

Woody, 55 F.3d 1257, 1275 (7th Cir. 1995) (affirming the

application of the two-level enhancement where the

defendant fled from police and led officers on a high-

speed chase); United States v. Velasquez, 67 F.3d 650, 655

(7th Cir. 1995) (holding that flight at a high rate of speed

on a residential street is enough to support an enhance-

ment under § 3C1.2). And Brown’s brandishing of the

gun during his flight presented a substantial risk that an

officer arriving on the scene might discharge his gun

in defense, causing injury to one of the hotel guests at

the scene or another officer. See United States v. Hoffarth,

432 F. App’x 621, 623 (7th Cir. 2011) (nonprecedential

decision) (“[D]isplaying a gun, loaded or not, during a

crime ‘creates an immediate danger that a violent

response will ensue.’ ”) (quoting McLaughlin v. United

States, 476 U.S. 16, 17-18 (1986)); see also United States v.

Smythe, 363 F.3d 127, 129 (2d Cir. 2004) (concluding that

“offense-level enhancements are warranted even where

a weapon is unloaded or inoperative.” (emphasis in origi-

nal)). Thus, taken together, the undisputed facts sur-

rounding Brown’s flight demonstrate that Brown “reck-

lessly created a substantial risk of death or serious

bodily injury to another person” when he fled from

No. 12-3413 17

law enforcement on the day of his arrest. U.S.S.G. § 3C1.2.

Indeed, defense counsel all but conceded as much

when he stated at sentencing that “whether or not

[Brown] tried to shoot anyone or carjack anyone or take

a gun doesn’t affect the guideline calculation at all. The

Government gets the enhancements that it’s looking

for and that probation found without any of those

things.” He was correct. The additional disputed facts

contained in the PSR merely bolster the district court’s

application of the two-point enhancement while sup-

porting its decision to vary upward from the guide-

lines range. Consequently, we find no error in the

district court’s resolution of the disputed facts or its

calculation of Brown’s guidelines range for sentencing.

III. Conclusion

For these reasons, we A FFIRM the sentence imposed

by the district court.

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