Brown v. United States

21-1530

Brown v. United States

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION

TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS

GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S

LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH

THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY

CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT

REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit,

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the

City of New York, on the 19th day of April, two thousand twenty-three.

PRESENT:

PIERRE N. LEVAL,

DENNY CHIN,

RICHARD J. SULLIVAN,

Circuit Judges.

_____________________________________

DONALD GEORGE BROWN,

Petitioner-Appellant,

v. No. 21-1530

UNITED STATES OF AMERICA,

Respondent-Appellee. ∗

__________________________________

∗

The Clerk of Court is respectfully directed to amend the official case caption as set forth above.

For Petitioner-Appellant: TIMOTHY P. MURPHY, Federal

Public Defender’s Office, Buffalo,

NY.

For Respondent-Appellee: RYAN C. HARRIS (Amy Busa, on the

brief), Assistant United States

Attorneys, for Breon Peace, United

States Attorney for the Eastern

District of New York, Brooklyn,

NY.

Appeal from an order of the United States District Court for the Eastern

District of New York (Raymond J. Dearie, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the order of the district court is AFFIRMED

without prejudice to Brown renewing the claim he asserts in this action if the law

regarding the validity of his concurrent life sentences changes in the future.

Donald George Brown appeals from the district court’s order denying his

motion under 28 U.S.C. § 2255 to vacate two of his convictions for using and

carrying a firearm in furtherance of a crime of violence, in violation of 18 U.S.C.

§ 924(c). Brown was convicted after a jury trial on twenty-six counts, including

six counts of murder-in-aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1);

five counts of conspiracy to commit murder-in-aid of racketeering, in violation of

18 U.S.C. § 1959(a)(5); narcotics conspiracy, in violation of 21 U.S.C.

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§§ 841(b)(1)(A)(ii), (iii), (vii), and 846; racketeering, in violation of 18 U.S.C.

§ 1962(c); racketeering conspiracy, in violation of 18 U.S.C. § 1962(d);

assault-in-aid of racketeering, in violation of 18 U.S.C. § 1959(a)(3); Hobbs Act

robbery, in violation of 18 U.S.C. § 1951; Hobbs Act robbery conspiracy, in

violation of 18 U.S.C. § 1951; credit card fraud, in violation of 18 U.S.C. § 1029(a)(2),

(c)(1); credit card fraud conspiracy, in violation of 18 U.S.C. § 1029(b)(2), (c)(1); and

seven counts of using and carrying a firearm in furtherance of a crime of violence,

in violation of 18 U.S.C. § 924(c). The two section-924(c) convictions relevant here

– Counts 14 and 18 – were both predicated on murder-in-aid of racketeering and

conspiracy to commit murder-in-aid of racketeering.

The district court imposed on Brown nine concurrent life sentences on the

racketeering, racketeering conspiracy, murder, and narcotics conspiracy counts;

125 years’ consecutive imprisonment on the section-924(c) counts (including forty

years’ consecutive imprisonment on the convictions relevant here); and concurrent

sentences on the remaining counts. After a direct appeal and one prior

unsuccessful petition for collateral review, Brown filed this successive motion to

vacate his convictions on Counts 14 and 18 in light of Johnson v. United States, 576

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U.S. 591 (2015), and United States v. Davis, 139 S. Ct. 2319 (2019). 1 In ruling on the

motion, the district court recognized that conspiracy to commit murder no longer

served as a valid predicate offense, but nevertheless denied the motion given its

belief that there was no reasonable possibility that the jury’s verdict rested on the

murder conspiracy charge alone. On May 11, 2022, we granted Brown’s motion

for a certificate of appealability to decide “whether the district court properly

concluded that murder-in-aid of racketeering, [predicated on second-degree

murder] under California Penal Code § 187(a), was a valid predicate for his

[section-924(c)] convictions in Counts 14 and 18.” J. App’x at 308. We assume

the parties’ familiarity with the underlying facts, procedural history, and issues on

appeal.

Upon further consideration of the issue, and in light of our opinion in

Al-’Owhali v. United States, 36 F.4th 461 (2d Cir. 2022) – which post-dated our order

granting Brown’s motion for a certificate of appealability – we decline to decide

whether second-degree murder under California law, Cal. Penal Code § 187(a), is

a “crime of violence” under section 924(c), since Brown must serve multiple

concurrent life sentences before he will even begin to serve the mandatory

1On direct appeal, we vacated Brown’s conviction on the narcotics conspiracy charge. See

United States v. Brown, No. 99-1230(L), 2002 WL 34244994, at *5 (2d Cir. Apr. 26, 2002).

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consecutive sentences imposed for Counts 14 and 18. Under the

concurrent-sentence doctrine, we may decline to consider collateral challenges to

the validity of a conviction when “(1) the collateral challenge will have no effect

on the time the prisoner must remain in custody and (2) the unreviewed

conviction will not yield additional adverse collateral consequences.” Al-’Owhali,

36 F.4th at 467. 2 We are satisfied that both prongs are met here.

As to the first prong, since Brown is currently serving eight concurrent life

sentences, vacatur of the challenged section-924(c) convictions – with sentences

that run consecutively to the unchallenged life sentences – will not “reduce the

time he is required to serve” in prison. Kassir, 3 F.4th at 561 (internal quotation

marks omitted).

With respect to the second prong – whether a petitioner may be subject to

additional adverse collateral consequences – we consider “the petitioner’s

2 In Ray v. United States, 481 U.S. 736, 737 (1987), the Supreme Court “abolished the

concurrent[-]sentence doctrine for direct review of federal convictions.” Dhinsa v. Krueger, 917

F.3d 70, 76 n.4 (2d Cir. 2019) (alterations and internal quotation marks omitted). But unlike a

direct appeal – which “allows for a frontal attack on a conviction, a sentence, or both,” Al-’Owhali,

36 F.4th at 467 (internal quotation marks omitted), and “requires nothing more than some

concrete stake in the outcome of the case,” such as a mandatory special assessment, Kassir v.

United States, 3 F.4th 556, 565–66 (2d Cir. 2021) – a collateral attack is “limited to a claimed right

of relief from custody,” Al-'Owhali, 36 F.4th at 467 (internal quotation marks omitted) (emphasis

added). Since “[r]elief from fines, special assessment fees, restitution, and other noncustodial

punishments . . . cannot themselves serve as bases for collateral relief,” id. (internal quotation

marks omitted), “the concurrent[-]sentence doctrine remains available in a collateral challenge to

a conviction or sentence under [section] 2255,” id. at 466.

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eligibility for parole, the future application of recidivist statutes for a future offense

by the petitioner, the petitioner’s credibility in future trials, the possibility of

pardon, and societal stigma of a conviction.” Id. at 568. But none of these factors

favor Brown. First, the section-924(c) convictions will have no effect on Brown’s

eligibility for parole since his unchallenged life sentences, like all life sentences in

the federal system, do not include the possibility of parole. See United States v.

Delgado, 971 F.3d 144, 159 (2d Cir. 2020). Second, Brown’s eight concurrent life

sentences make it well-nigh impossible that Brown will be subject to a “recidivist

statute for a future offense, such that the unreviewed [section-924(c)] conviction[s]

could result in an increased sentence.” Al-’Owhali, 36 F.4th at 468 (internal

quotation marks omitted). Third, we fail to see how Brown’s unreviewed

section-924(c) convictions may be used to impeach his character at a future trial or

affect his chances for a potential pardon, given that he stands convicted of six

murder charges and several other felony offenses. Similarly, given the “societal

stigma” associated with Brown’s other violent felony convictions, we fail to see

how the two section-924(c) convictions meaningfully stigmatize him any further.

In sum, because Brown challenges only the section-924(c) convictions that

carry sentences running consecutive to his eight unchallenged life sentences, we

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decline to consider the question presented to us on appeal. See Al-’Owhali, 36

F.4th at 469 (declining to review a defendant’s challenge to his section-924(c)

conviction where, as here, the defendant was serving multiple life sentences).

Accordingly, we AFFIRM the order of the district court, without prejudice

to Brown renewing the claim he asserts in this action if the law regarding the

validity of his concurrent life sentences changes in the future.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

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