United States v. Brown

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4944

KENNETH BROWN, a/k/a Sugar Bear,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-5021

SAMUEL L. BROWN,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-5022

JAMES EDWARD BROWN, a/k/a JB,

Defendant-Appellant.

Appeals from the United States District Court

for the District of South Carolina, at Anderson.

G. Ross Anderson, Jr., District Judge.

(CR-97-170)

Submitted: November 24, 1998

Decided: December 17, 1998

Before LUTTIG and TRAXLER, Circuit Judges, and

HALL, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

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COUNSEL

Robert G. Levitt, Denver, Colorado; Edward W. Miller, Greenville,

South Carolina; William B. Long, Jr., Greenville, South Carolina, for

Appellants. J. Rene Josey, United States Attorney, Scarlett A. Wilson,

Assistant United States Attorney, Columbia, South Carolina, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

In these consolidated appeals, brothers Kenneth Brown, Samuel L.

Brown, and James Edward Brown appeal their sentences. The three

Appellants were charged, along with eight others, of various narcotics

offenses as a result of a crack cocaine distribution network operating

in South Carolina. The three Appellants pled guilty to one count of

conspiracy to possess with intent to distribute cocaine and crack

cocaine, 18 U.S.C. § 846 (1994), and one count of possession with

intent to distribute crack cocaine, 18 U.S.C. § 841(a)(1) (1994). James

Edward Brown also pled guilty to two additional counts of possession

with intent to distribute crack cocaine under § 841(a)(1). Each Appel-

lant challenges his sentence. Finding no reversible error, we affirm.

Kenneth Brown's base offense level under the Sentencing Guide-

lines was 38 due to his involvement with more than 1.5 kilograms of

crack cocaine. See U.S. Sentencing Guidelines Manual § 2D1.1(c)(1)

(1995). He was assessed a four-level enhancement as a leader and

organizer of a narcotics conspiracy involving five or more partici-

pants. See USSG § 3B1.1. At sentencing, he did not object to the base

2

offense level and withdrew his objection to the four-level enhance-

ment.

On appeal, Kenneth Brown contends that the court erred in accept-

ing the findings and recommendations contained in the presentence

investigation report ("PSI") insofar as it concerned the base offense

level and the four-level enhancement. Because he failed to object in

either instance, we review for plain error. See United States v. Grubb,

11 F.3d 426, 440 (4th Cir. 1993) (absent plain error, appellate review

of a sentence is waived when the defendant fails to object to the sen-

tence calculation in the district court).

Kenneth Brown further contends that his base offense level is too

high. He claims his base offense level should be based upon the same

amount of crack cocaine charged to his brothers, which would result

in a base offense level of 36.1 In the PSI, Kenneth Brown was

reported to be the leader of the drug conspiracy that was responsible

for distributing multi-kilograms of crack cocaine. Kenneth Brown's

extensive involvement in the conspiracy was detailed in the PSI. He

was directly involved in the distribution of at least 2 kilograms of

crack cocaine. The fact that his brothers were found to have been

involved with less crack cocaine is not relevant because Kenneth

Brown's role in the conspiracy was different. Furthermore, he did not

have an agreement with the Government regarding the base offense

level.

Because Kenneth Brown did not object, and because there was no

evidence rebutting the PSI's findings regarding the amount of crack

cocaine for which he was responsible, the district court was permitted

to adopt the PSI's findings and recommendations. See United States

v. Love, 134 F.3d 595, 606 (4th Cir.) (unless there is an affirmative

showing that the information is inaccurate, the court may adopt the

findings of the PSI without more specific inquiry or explanation),

cert. denied, ___ U.S. ___, 66 U.S.L.W. 3790 (U.S. June 15, 1998)

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1 Samuel Brown's base offense level was 36, based upon six ounces of

crack cocaine. The Government stipulated to a base offense level of 36

for James Brown based on his involvement with no more than 1.5 kilo-

grams of crack cocaine.

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(No. 97-9085). Thus, we find no error in Kenneth Brown's base

offense level.

Likewise, there was no error in the four-level enhancement based

on Kenneth Brown's role in the offense. The Sentencing Guidelines

provide for a four-level enhancement "[i]f the defendant was an orga-

nizer or leader of criminal activity that involved five or more partici-

pants or was otherwise extensive." USSG § 3B1.1(a). In making this

determination, the court should consider

the exercise of decision making authority, the nature of par-

ticipation in the commission of the offense, the recruitment

of accomplices, the claimed right to a larger share of the

fruits of the crime, the degree of participation in planning or

organizing the offense, the nature and scope of the illegal

activity, and the degree of control and authority exercised

over others.

USSG § 3B1.1, comment. (n.4).

According to the PSI, Kenneth Brown qualified for the four-level

enhancement because he employed four other persons to assist in the

distribution network, including his two brothers, and he used his

home as a distribution point for the crack cocaine. Because he failed

to object to the enhancement, the court was within its discretion to

adopt the PSI's findings and recommendation regarding the four-level

enhancement.

With regard to Samuel Brown, the court determined that his statu-

tory minimum sentence was twenty years based on a prior state con-

viction for possession of crack cocaine. See 21 U.S.C. § 841(b)(1)(A).2

Samuel Brown contends that the sentence violated the Ex Post Facto

Clause.

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2 Section 841(b)(1)(A) states in relevant part: "If any person commits

such a violation after a prior conviction for a felony drug offense has

become final, such person shall be sentenced to a term of imprisonment

which may not be less than 20 years and not more than life imprison-

ment."

4

Prior to James and Samuel Brown's guilty plea, the Government

gave notice that it was intending to seek enhanced sentences under

§ 841(b)(1)(A) based on prior felony drug convictions. Samuel Brown

objected to the enhancement, contending that his prior state convic-

tion did not meet the definition of a felony drug conviction. At sen-

tencing, the court denied the application of the enhancement as to

both defendants and sentenced Samuel Brown to 151 months' impris-

onment. Subsequently, citing Fed. R. Crim. P. 35(c), the court recog-

nized its error and ordered a hearing for resentencing of both

defendants. At resentencing, Samuel Brown admitted to the prior drug

conviction. The court stated that it did not have any discretion in the

matter and sentenced him to 20 years' imprisonment.

In April 1993, Samuel Brown pled guilty in a South Carolina state

court to possession of crack cocaine. Although he was sentenced to

two years' imprisonment for the offense, the state classified the con-

viction as a misdemeanor. In April 1993, possession of crack cocaine

was also a misdemeanor under federal law. See 21 U.S.C. § 844

(1994). Also in April 1993, a felony drug offense for sentencing

enhancement purposes was defined as "an offense that is a felony

under any provision of this subchapter or any other Federal law that

prohibits or restricts conduct relating to narcotic drugs . . . or a felony

under any law of a State." 21 U.S.C. § 841(b)(1)(a) (repealed by Vio-

lent Crime Control and Law Enforcement Act of 1994, Pub. L. No.

103-322, 108 Stat. 1987, § 90105) ("VCCLEA"). In 1994, Congress

redefined felony drug offense as "an offense that is punishable by

imprisonment for more than one year under any law of the United

States or of a State." VCCLEA, 108 Stat. 1988,§ 90105 (codified at

21 U.S.C.A. § 802(44) (West Supp. 1998)).

Samuel Brown contends that using the current definition of felony

drug offense to statutorily enhance his sentence instead of using the

definition in place in 1993, when he pled guilty to the state offense,

violates his protection against ex post facto application of the law.

The Ex Post Facto Clause prohibits retroactively altering the defini-

tion of crimes or increasing the punishment for criminal acts. See

California Dep't of Corrections v. Morales, 514 U.S. 499, 504

(1995). Recently the circuit court for the District of Columbia rejected

an identical ex post facto argument in an appeal with very similar

facts. See United States v. Glover, 153 F.3d 749, 757-58 (D.C. Cir.

5

1998). The Court noted that it "is well-settled .. . that a sentencing

enhancement based on past offenses is not `additional penalty for the

earlier crimes,' but rather `a stiffened penalty for the latest crime,

which is considered to be an aggravated offense because a repetitive

one.'" Id. at 757 (quoting Gryger v. Burke, 334 U.S. 728, 732 (1948)).

We find Glover persuasive. The 1994 definition of felony drug

offense did not increase Samuel Brown's punishment for prior crimi-

nal conduct. Rather, it put him on notice that he faced more severe

consequences if he committed an offense under § 841. Accordingly,

enhancing Samuel Brown's sentence based on the prior offense did

not violate the Ex Post Facto Clause.

James Brown contends that if this Court finds Samuel Brown's ex

post facto argument persuasive and reduces Samuel's sentence

accordingly, then his sentence should be reduced as well even though

the argument does not directly apply to his sentence,3 otherwise there

would be an unconstitutional disparity in sentencing. We have

rejected the ex post facto argument. In any event, this contention is

without merit.

James Brown also contends that under USSG § 5K2.0, the court

should have sua sponte sentenced him below the statutory twenty-

year minimum sentence. Our review is for plain error because he did

not raise this issue before the district court. See Grubb, 11 F.3d at

440. James Brown does not state any reason why he is entitled to a

lower sentence other than the sentencing court's implied dissatisfac-

tion with the statutory minimum sentence because of its initial refusal

to enhance the sentence. The court's dissatisfaction with a statutorily

mandated minimum sentence is not grounds for imposing a lower sen-

tence. See United States v. Davis, 98 F.3d 141, 145-46 (4th Cir.

1996), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3630 (U.S. Mar. 17,

1997) (No. 96-7755). Thus, we find the court did not err in not depart-

ing from the minimum sentence.

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3 James Brown's predicate offense was a felony when he pled guilty to

it, thus, he was eligible for the sentencing enhancement under either defi-

nition of a felony drug conviction.

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Finally, James Brown contends the court erred by ordering resen-

tencing under Fed. R. Crim. P. 35(c) because the initial sentence was

lawful. Under Rule 35(c), a district court has the authority to correct

clear errors which would almost certainly result in a remand under

Rule 35(a). See United States v. Fraley, 988 F.2d 4, 7 (4th Cir. 1993).

At resentencing, the court noted that it was unaware of the statutory

enhancement and originally denied the enhancement because it

thought the Government was seeking the enhancement under USSG

§ 4A1.3 (permitting the court to depart from the Sentencing Guide-

lines range if the defendant's criminal history category does not ade-

quately reflect the seriousness of past criminal conduct). However,

the court stated that the original sentence was an"error of law."

Because there was no basis upon which to sentence James Brown

below the statutory minimum, see, e.g., USSG § 5C1.2; United States

v. Patterson, 38 F.3d 139, 146 n.8 (4th Cir. 1994), the original sen-

tence was clearly in error and would have been remanded on appeal.

We affirm the sentences. We dispense with oral argument because

the facts and legal conclusions are adequately presented in the materi-

als before the court and argument would not aid the decisional pro-

cess.

AFFIRMED

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