United States v. Robert Brown

NOT RECOMMENDED FOR PUBLICATION

File Name: 22a0487n.06

No. 22-5010

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT FILED

Nov 30, 2022

DEBORAH S. HUNT, Clerk

)

UNITED STATES OF AMERICA,

)

Plaintiff-Appellee, ) ON APPEAL FROM THE

) UNITED STATES DISTRICT

v. ) COURT FOR THE EASTERN

) DISTRICT OF KENTUCKY

ROBERT BROWN, )

Defendant-Appellant. )

OPINION

)

)

Before: SUTTON, Chief Judge, GRIFFIN and NALBANDIAN, Circuit Judges.

NALBANDIAN, Circuit Judge. While imprisoned, Robert Brown helped his cellmate

try to escape through the ceiling of their cell. And then he tried to escape himself. He pleaded

guilty and received a 44-month sentence. Brown appeals this sentence as procedurally and

substantively unreasonable. We disagree and affirm.

I. Background

A. Facts

After Andy Dufresne’s remarkable escape in the Shawshank Redemption, Red Redding

muses “I have to remind myself that some birds aren’t meant to be caged.” One might imagine

that Robert Brown had thoughts along those same lines, though his execution fell short of

Hollywood magic.

No. 22-5010, United States v. Brown

Robert Brown was an inmate at United States Penitentiary McCreary with about four years

left on his sentence. In May 2020, he and his cellmate, Jamie Rosenquist, attempted to escape.

The two prisoners barricaded their cell with sheets and mattresses, strung braided sheets and

blankets to anchor points across the cell, made a hole in the ceiling, and attempted to climb through

it. Rosenquist made his way successfully to the roof. But Brown’s journey ended ingloriously.

Prison staff found Brown trying to climb through the hole in the roof, with his legs still dangling

from the ceiling.

Prison officials pulled Brown from the ceiling when they allege that Brown became

combative. They claim he punched, kicked, bit, spat at, and threatened to kill them. Brown denies

this, claiming that he was handcuffed or shackled at all times. So it would have been “nearly

impossible” for him to have used force against the guards. (R. 66, Brown Objections, 3). No

prison cameras recorded the events, but at least three staff members reported both his conduct and

resulting minor injuries.

B. Procedural Posture

Brown was indicted for aiding and abetting an attempted escape, in violation of 18 U.S.C.

§§ 751(a) and 2. Brown entered a guilty plea without a written plea agreement, which the court

accepted.

Brown’s Presentence Report recommended a base offense level of 13 under U.S.S.G.

§ 2P1.1(a)(1), which covers prison escapes. The report recommended a five-level-sentence

enhancement under § 2P1.1(b)(1) for the use or threat of force. It also recommended a three-level

decrease for acceptance of responsibility, leaving Brown with a total offense level of 15.

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Based on this calculation and his criminal history category of VI, Brown’s Guideline range

was 41-51 months. Brown objected to the five-point enhancement and to the Guideline

calculation. He argued that his total offense level should be 10, leaving him with a Guidelines

range of 24-30 months. At Brown’s sentencing hearing, the government called Special Agent

Tahisha Wiseman to testify about the events supporting the § 2P1.1(b)(1) enhancement. Agent

Wiseman testified that she conducted the investigation into Brown’s attempted escape but was not

present for the incident. She also testified about Brown’s conduct during the escape, including his

use of force against the prison officials. Wiseman’s testimony was based on her review of the

incident report statements of the officers involved. Through her, the government introduced

Officer Branden Grubb’s incident report as well as photographs of the staff members’ injuries.

She also testified that there was no video evidence of the events of the day, likely because of a

technological malfunction.

Despite considering the lack of video “unusual,” the district court found that the

government had met its burden to apply a § 2P1.1(b)(1) enhancement. (R. 81, Brown Sentencing

Hearing, 35). The judge pointed to the significance of the incident report and photographs and

accepted the PSR’s offense-level recommendation of 15.

The court then heard arguments about the application of the 18 U.S.C. § 3553(a) factors.

Brown argued for a downward variance to a 24-month sentence. In arguing for that variance,

Brown cited the effect of losing his father, his significant family support, and his success in

working towards sobriety with help from his family and faith. He noted his interest in furthering

his education. He also provided a statement apologizing to the court.

After hearing the arguments, the district court imposed a 44-month sentence. The judge

placed considerable emphasis on Brown’s criminal history, including his use of firearms, drugs,

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and violence. The court also discussed the mitigating factors that Brown had presented in choosing

a sentence on the low end of the recommended Guidelines range. Brown timely appealed his

sentence.

II. Standard of Review

We generally review a sentence for procedural and substantive reasonableness for abuse of

discretion. Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Robinson, 778 F.3d 515,

518 (6th Cir. 2015). We review the district court’s findings of fact for clear error and accord “due

deference to [its] application of the guidelines to the facts.” Buford v. United States, 532 U.S. 59,

63 (2001) (citing 18 U.S.C. § 3742(e) (emphasis omitted)). Defendants need not raise substantive

unreasonableness to preserve it for appeal. United States v. Penson, 526 F.3d 331, 337 (6th Cir.

2008) (citation omitted). But they must raise procedural reasonableness in the district court and

on appeal. Id.1

III. Analysis

A. Procedural Reasonableness

First, we consider procedural reasonableness. Gall, 552 U.S. at 51. Procedural

reasonableness requires the district court to have:

(1) properly calculated the applicable advisory Guidelines range; (2) considered the

other [18 U.S.C.] § 3553(a) factors as well as the parties’ arguments for a sentence

outside the Guidelines range; and (3) adequately articulated its reasoning for

imposing the particular sentence chosen, including any rejection of the parties’

arguments for an outside-Guidelines sentence and any decision to deviate from the

advisory Guidelines range.

1

Brown raised this objection at sentencing, so we review for an abuse of discretion. Penson, 526

F.3d at 337.

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No. 22-5010, United States v. Brown

United States v. Adams, 873 F.3d 512, 517 (6th Cir. 2017) (alteration in original) (quoting United

States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007)). Brown alleges that the district court incorrectly

calculated his Guidelines range. In determining a Guidelines range, the “burden is on the

government to prove, by a preponderance of the evidence, that a particular sentencing

enhancement applies.” United States v. Dupree, 323 F.3d 480, 491 (6th Cir. 2003).

Brown argues that the district court improperly applied the § 2P1.1(b)(1) enhancement.

When a factor important to a sentencing enhancement is in dispute, the court must give the parties

“an adequate opportunity to present information” about that factor. U.S.S.G. § 6A1.3(a). The

court “may consider relevant information without regard to its admissibility under the rules of

evidence applicable at trial” if the information has sufficient “indicia of reliability to support its

probable accuracy.” Id.; see also United States v. Stout, 599 F.3d 549, 558 (6th Cir. 2010).

Brown argues that the court impermissibly based its decision to apply U.S.S.G.

§ 2P1.1(b)(1) on Agent Wiseman’s testimony and the out-of-court statements of the prison guards

who pulled him from the ceiling. He argues that Agent Wiseman’s testimony lacks any indicia of

reliability because she relied exclusively on the reports of the officers in forming her opinion,

rather than interviewing Brown or the guards herself.

Brown’s argument here is unavailing. As the Guidelines note, the court at sentencing may

consider evidence not admissible at trial, including hearsay, provided it has some “indicia of

reliability.” U.S.S.G. § 6A1.3. And this is a “relatively low hurdle.” United States v. Moncivais,

492 F.3d 652, 659 (6th Cir. 2007). Indeed, it is a lower standard than preponderance of the

evidence. See id. at 658–59.

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No. 22-5010, United States v. Brown

Agent Wiseman’s testimony provided indicia of reliability. It was based on the report of

prison staff. And the reported testimony was supported by photographs of the officers’ injuries

consistent with that testimony.

Brown claims that the testimony of the guards was “insufficient and unreliable.” (Brown

Br. at 17) This argument comes up short. Brown tries to distinguish his case from United States

v. Rodgers, 230 F.3d 1361 (6th Cir. 2000) (unpublished table decision), which the district court

relied on. In Rodgers, we determined that a district court properly applied a § 2P1.1(b)(1) where

an escaped inmate nearly hit police officers with his car during a high-speed chase, fled the vehicle,

and then resisted officers who attempted to take him into custody. 230 F.3d 1361, at *2.

Brown argues that the key factor distinguishing his case from Rodgers is that the defendant

in Rodgers went to a medical center for treatment of injuries sustained while fleeing from police.

This, he argues, offered “uncontradicted proof” of the use of force. (Brown Br. at 19) But it is

unclear what distinguishes that case from Brown’s, except for perhaps the scale of the injuries.

Here, Officer Branden Grubb, who detained Brown, prepared an incident report and photographs

of the injuries suffered by three other guards, which is reliable evidence of the use of force. And

Brown cites nothing to rebut that evidence.

Instead, Brown points to the lack of video footage in the prison to make the case that the

evidence on which the court relied was uncorroborated. While the court acknowledged that the

lack of video footage was “a little bit unusual,” it sustained the findings in the report based on

Agent Wiseman’s testimony and the photographs provided. (R. 81, Brown Sentencing Hearing,

35) We may agree that the lack of video evidence in the prison was unusual. We may even be

sympathetic to the defendant’s argument that it was concerning. But that does not mean that this

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negates the court’s findings. As we have stated, we will not overrule a sentencing enhancement

applied with sufficient corroboration. And “‘[s]ufficient’ means just that: sufficient. It does not

mean exhaustive. It does not mean perfect.” United States v. Armstrong, 920 F.3d 395, 399 (6th

Cir. 2019) (emphasis omitted). Video evidence might have been preferable. But Agent Wiseman’s

testimony, Officer Grubb’s report, and the photographs were sufficient.2

Because the evidence offered by the government had sufficient indicia of reliability to

satisfy the evidentiary standard, and because Brown had the opportunity to call the guards as

witnesses and chose not to, we cannot say that the district court abused its discretion in finding

that the enhancement applied. The sentence was not procedurally unreasonable.

B. Substantive Reasonableness

In determining whether a sentence is substantively reasonable, “[w]e must take into account

the totality of the circumstances.” Adams, 873 F.3d at 517 (internal quotation marks and citation

omitted). A “sentence within the applicable Guidelines range is accorded a presumption of

[substantive] reasonableness.” Id. (alteration in original) (quotation marks and citation omitted).

The presumption, however, is rebuttable and is not binding. Id. at 520 (citing Rita v. United States,

551 U.S. 338, 347 (2007)).

2

Brown also seeks to distinguish his case from Nance v. United States, No. 2:16-cv-77, 2017 WL

4392880 (S.D. Ga. Oct. 3, 2017), which the district court found persuasive. He argues that in

Nance, a police officer’s testimony was more reliable than the testimony here because the officer

took part in the physical altercation with the defendant. But this argument is unconvincing. The

guards’ names were known to Brown, as were their allegations against him. He could have called

them to testify at his sentencing hearing and challenged their claims. Yet he chose not to. “And

by doing so, he abandoned his right to cry foul over his inability to rebut [their] claims.”

Armstrong, 920 F.3d at 400.

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No. 22-5010, United States v. Brown

A sentence is substantively unreasonable if “the district court ‘selects a sentence arbitrarily,

bases the sentence on impermissible factors, fails to consider relevant sentencing factors, or gives

an unreasonable amount of weight to any pertinent factor.’” United States v. Price, 901 F.3d 746,

749 (6th Cir. 2018) (citation omitted). Although the court must consider the relevant sentencing

factors, “a district court does not commit reversible error simply by ‘attaching great weight’ to a

few factors.” United States v. Robinson, 892 F.3d 209, 214 (6th Cir. 2018) (alteration omitted)

(quoting Gall, 552 U.S. at 57). We will not overturn a sentence just because we would balance

the factors differently than the district court did. United States v. Gardner, 32 F.4th 504, 532 (6th

Cir. 2022) (“Our review ‘looks to whether the sentence is reasonable,’ not to whether we ‘would

have imposed the same sentence’ in the first instance.” (citation omitted)).

Brown’s burden is substantial, particularly because his sentence was within the Guidelines

range. United States v. Bradley, 897 F.3d 779, 786 (6th Cir. 2018). We accord a rebuttable

presumption of substantive reasonableness to within-Guidelines sentences.3 Rita, 551 U.S. at 352,

354 (permitting a presumption of substantive reasonableness for within-Guidelines sentences);

United States v. Liou, 491 F.3d 334, 337 (6th Cir. 2007) (“[W]ith regard to the substantive

reasonableness inquiry, we have applied a rebuttable presumption of reasonableness to sentences

falling within the applicable Guidelines range.” (quotation marks and citation omitted)).

Brown argues that the district court gave undue weight to his criminal history without

considering other § 3553 mitigating factors. He claims that the district court’s weighing of the

3

Brown acknowledges that if the court properly calculated his Guidelines range (it did), then his

sentence is within the Guidelines range, but he claims that there is no automatic presumption of

reasonableness. This is incorrect. While there is no presumption of procedural reasonableness

when a sentence is within the Guidelines, courts may impose a presumption of substantive

reasonableness. Gall, 552 U.S. at 51. The Sixth Circuit applies a presumption of substantive

reasonableness for within-Guidelines sentences. Adams, 873 F.3d at 517.

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No. 22-5010, United States v. Brown

factors made him receive a sentence that is “greater than necessary” to achieve desired sentencing

goals. (Brown Br. at 21) (quoting 18 U.S.C. § 3553(a)).

At sentencing, the court found Brown’s history to be a significant consideration. The

sentencing judge noted that “it is a troubling criminal history with not just . . . drugs and guns but

also some very clear incidences of violence.” (R. 81, Brown Sentencing Hearing, 62) Brown

argues that because his prior convictions involved firearms offenses and drug crimes, the court

was wrong to find that his conviction for attempted escape suggested he was at risk of recidivism.

Indeed, he claims that there was “no nexus” between his past crime and that for which he was

being sentenced. (Brown Br. at 24)

Yet it was not just Brown’s history that concerned the judge. She explicitly stated that

“when you put [drugs, guns, and the use of violence] together. . . . it does magnify the potential

for . . . harm to the public, for you recidivating, . . . committing similar crimes in the future, for the

need to deter you and to protect the public.” (R. 81, Brown Sentencing Hearing, 62) Thus, the

court did not rely solely on Brown’s history in imposing his sentence, but considered and balanced

various § 3553(a) factors in determining Brown’s within-Guidelines sentence. See United States

v. Lanning, 633 F.3d 469, 478 (6th Cir. 2011) (finding that the district court did not err in

considering criminal history at sentencing after raising the defendant’s criminal history score

because the sentencing judge considered a range of § 3553(a) factors). So we must give “due

deference” to the district court’s decision. Id. (quoting Gall, 552 U.S. at 51).

Brown also claims that the district court erroneously considered his criminal history twice

in imposing his sentence. But as Brown himself notes, our precedent allows a court to consider

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criminal history in determining the length of a sentence. United States v. Lee, 974 F.3d 670, 677

(6th Cir. 2020).

True, we are reluctant to justify upward variances based on criminal history when it has

already been used to calculate the Guidelines range.4 See, e.g., United States v. Lightning, 835 F.

App’x 38, 41 (6th Cir. 2020) (citing United States v. Boucher, 937 F.3d 702, 711 (6th Cir. 2019)).

But there was no upward variance here. The sentence is at the low end of Brown’s properly

calculated Guidelines range. So the court’s use of Brown’s criminal history was not meant to add

time beyond what the Guidelines would recommend. Instead, the court considered it as one of the

18 U.S.C. § 3553(a) factors, which the court appropriately weighed in determining where within

the prescribed Guidelines range Brown’s sentence should fall. The district court did not abuse its

discretion in factoring Brown’s criminal history into its sentencing determination.

Finally, Brown argues that the court failed to adequately consider mitigating factors in

imposing his sentence. He points to his difficult upbringing, strong family ties, pursuit of

education, and engagement with his faith to argue that a full assessment of his circumstances

warranted a downward variance.

But the court explicitly considered these factors at sentencing:

[F]amily support, your efforts to increase your education, your statement to the Court

which I find very helpful, and, you know, some —the recent loss of your father which I do

think has contributed to your self-awareness and your evaluation of yourself and where

you’re headed. I do think those are mitigating.

4

Reluctant does not mean invariably opposed. We have held that in certain cases it may be

permissible to use criminal history to justify a significant upward variance. But “in each of the

cases in which we have upheld a district court’s decision to vary upward based on a defendant’s

criminal history—a history which is already captured by the advisory guidelines range—we have

emphasized the relationship between the instant offense and the defendant’s prior offenses.” Lee,

974 F.3d at 677.

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No. 22-5010, United States v. Brown

(R. 81, Brown Sentencing Hearing, 61). So although the court considered the mitigating factors,

it did not consider them to be so mitigating as to justify a below-Guidelines sentence. This was

well within the court’s discretion, and it is not for us to second-guess the sentence on this

reasoning. Thus, the sentence is substantively reasonable.

IV. Conclusion

For these reasons, the judgment of the district court is AFFIRMED.

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