Petition for Writ of Certiorari — Edward Brown, Petitioner v. United States
Supreme Court briefJul 15, 2022
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No.
In the Supreme Court of the United States
EDWARD BROWN,
PETITIONER,
v.
UNITED STATES OF AMERICA,
RESPONDENT
ON PETITION FOR A WRIT OF CERTIORARI
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Benjamin L. Falkner, Esq.
Counsel of Record
Krasnoo, Klehm & Falkner LLP
28 Andover Street, Suite 240
Andover, MA 01810
bfalkner@kkf-attorneys.com
(978) 475-9955
QUESTION PRESENTED
1.
Since the petitioner has been continuously in custody since October 4,
2007, he completely served the sentences of imprisonment imposed by the district
court as to all other convictions (besides the now-vacated Count Three) before his
resentencing, thereby satisfying the judgment imposing those terms of
imprisonment. Resentencing the petitioner violated the Fifth Amendment’s Double
Jeopardy prohibition against multiple punishments for an offense because the
district court was not permitted to impose a new sentence or impose a sentence
greater than that already imposed. Did the district court violate the petitioner’s
rights under the Double Jeopardy Clause of the Fifth Amendment?
2.
A lawful sentence must be sufficient but not greater than necessary to
achieve the sentencing goals set forth at 18 U.S.C. § 3553(a). A district court may
not impose a sentence based upon a defendant’s held or expressed political views
and may not impose a sentence that creates unwarranted disparities with sentences
imposed on similarly situated defendants. Here, the district court on resentencing
expressly relied upon the petitioner’s political beliefs to impose an extremely
disproportionate sentence to that of his similarly situated co-conspirators, who were
released at the time of their resentencing. Was the sentence procedurally or
substantively unreasonable?
(I)
PARTIES TO THE PROCEEDING
Petitioner is Edward Brown, who was appellant in the court of appeals.
Respondent is the United States of America, which was appellee in the court of
appeals.
DIRECTLY RELATED PROCEEDINGS
United States v. Edward Brown, U.S. District Court, D.N.H., Case No. 1:09-cr00030-01-GZS, Amended Judgment entered on September 29, 2020. Edward Lewis
Brown v. United States, U.S. Court of Appeals, Case No. 09-8018, Judgment entered
on June 4, 2009. United States v. Edward Brown, U.S. Court of Appeals, 1st Cir.,
Case No. 10-1081, Judgment entered on January 19, 2012. Edward Lewis Brown v.
United States, U.S. District Court, D.N.H., Case No. 16-cv-00083-GZS, Judgment
entered on February 6, 2020. Edward Lewis Brown v. United States, U.S. Court of
Appeals, 1st Cir., Case No. 16-1764, Judgment entered on October 10, 2019. In re:
Edward Lewis Brown, U.S. Court of Appeals, 1st Cir., Case No. 20-1263, Judgment
entered on April 1, 2020.
United States v. Elaine Brown, U.S. District Court, D.N.H., Case No. 1:09-cr00030-02-GZS, Amended Judgment entered on January 31, 2020. United States v.
Edward Brown, U.S. Court of Appeals, 1st Cir., Case No. 09-2402, Judgment entered
on January 19, 2012.
III
TABLE OF CONTENTS
Opinions below ................................................................................................................ 1
Jurisdiction...................................................................................................................... 1
Statutory provisions........................................................................................................ 2
Statement ........................................................................................................................ 2
Reasons for granting the petition ................................................................................ 17
I.
II.
Resentencing in this case violated Edward Brown’s rights under
the Double Jeopardy Clause of the Fifth Amendment, where he
served the sentences in their entirety before resentencing. ................. 17
A.
Edward Brown served the entirety of his sentences before
being resentenced. ........................................................................ 18
B.
Resentencing violated Edward’s rights under the Double
Jeopardy Clause of the Fifth Amendment. ................................. 18
Edward Brown’s sentence was procedurally and substantively
unreasonable in that it was longer than necessary to achieve the
sentencing goals, where it was based upon the expression of his
political beliefs, resulting in a sentence that was extremely
disproportionate to those of his coconspirators, who received time
served sentences. ..................................................................................... 22
Conclusion ..................................................................................................................... 27
Appendix A – Court of appeals opinion (February 16, 2022) ..................................... 1a
Appendix B – Amended judgment of district court (September 29, 2020) .............. 46a
Appendix C – Excerpt of transcript of petitioner’s re-sentencing
(September 29, 2020) ....................................................................................... 59a
IV
TABLE OF AUTHORITIES
Cases:
Barclay v. Florida,
463 U.S. 939 (1983) ....................................................................................... 24,25
Dawson v. Delaware,
503 U.S. 159 (1992) ............................................................................................ 23
Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874) ............................................. 18,19,20,21
Greenlaw v. United States,
554 U.S. 237 (2008) ....................................................................................... 21,22
In re Bradley,
318 U.S. 50 (1943) .............................................................................................. 20
Johnson v. United States,
576 U.S. 591 (2015) .............................................................................................. 7
Jones v. Thomas,
491 U.S. 376 (1989) ....................................................................................... 20,21
Pasquarille v. United States,
130 F.3d 1220 (6th Cir. 1997) ....................................................................... 16,22
Pepper v. United States,
562 U.S. 476 (2011) .................................................................................. 15,21,22
United States v. Alton,
120 F.3d 114 (8th Cir. 1997) ......................................................................... 16,22
United States v. Alvarez-Nunez,
828 F.3d 52 (1st Cir. 2016) ................................................................................ 24
United States v. Benbrook,
119 F.3d 338 (5th Cir. 1997) ......................................................................... 16,22
United States v. Brown,
669 F.3d 10 (1st Cir. 2012) ................................................................................ 10
United States v. Brown,
26 F.4th 48 (1st Cir. 2022) ......................................................................... passim
United States v. Demers,
842 F.3d 8 (1st Cir. 2016) .................................................................................. 25
V
United States v. Easterling,
157 F.3d 1220 (10th Cir. 1998) ..................................................................... 16,22
United States v. Flores-Machicote,
706 F.3d 16 (1st Cir. 2013) ........................................................................... 25,26
United States v. Lemon,
723 F.2d 922 (D.C. Cir. 1983) ............................................................................ 23
United States v. McClain,
133 F.3d 1191 (9th Cir. 1998) ....................................................................... 16,22
United States v. Melendez-Santana,
353 F.3d 93 (1st Cir. 2003) .................................................................................. 5
United States v. Padilla,
415 F.3d 211 (1st Cir. 2005) ................................................................................ 5
United States v. Riccio,
567 F.3d 39 (1st Cir. 2009) .................................................................................. 5
United States v. Rodriguez,
112 F.3d 26 (1st Cir. 1997) ................................................................................ 15
United States v. Romero,
906 F.3d 196 (1st Cir. 2018) ......................................................................... 25,26
United States v. Rosenberg,
806 F.2d 1169 (3d Cir. 1986) ............................................................................. 24
United States v. Santa-Otero,
618 Fed. Appx. 6 (1st Cir. 2015) .......................................................................... 5
United States v. Simkanin,
420 F.3d 397 (5th Cir. 2006) .............................................................................. 24
United States v. Smith,
103 F.3d 531 (7th Cir. 1996) ......................................................................... 16,22
United States v. Smith,
115 F.3d 241 (4th Cir. 1997) ......................................................................... 16,22
United States v. Townsend,
178 F.3d 558 (D.C. Cir. 1999) ....................................................................... 16,22
United States v. Triestman,
178 F.3d 624 (2d Cir. 1999) .......................................................................... 16,22
VI
United States v. Watkins,
147 F.3d 1294 (11th Cir. 1998) .......................................................................... 22
United States v. White,
406 F.3d 827 (7th Cir. 2005) .............................................................................. 21
Wisconsin v. Mitchell,
508 U.S. 476 (1993) ....................................................................................... 17,23
Constitutional provisions, statutes, guidelines and rules:
U.S. Const., Amend. I ...................................................................................... 2,23,24,25
U.S. Const., Amend. V ............................................................................. 2,8,15,18,19,21
18 U.S.C. § 2 .................................................................................................................... 4
18 U.S.C. § 111 ................................................................................................................ 4
18 U.S.C. § 371 ................................................................................................................ 4
18 U.S.C. § 372 ................................................................................................................ 4
18 U.S.C. § 921 ................................................................................................................ 4
18 U.S.C. § 924 ............................................................................................................. 4,7
18 U.S.C. § 1503 .............................................................................................................. 4
18 U.S.C. § 3146 .............................................................................................................. 4
18 U.S.C. § 3231 .............................................................................................................. 4
18 U.S.C. § 3553 .................................................................................................... passim
28 U.S.C. § 1291 ............................................................................................................ 15
28 U.S.C. § 1254 .............................................................................................................. 2
28 U.S.C. § 2255 ...................................................................................................... 7,8,15
Supreme Court Rule 12.7 ............................................................................................... 4
In the Supreme Court of the United States
No.
EDWARD BROWN, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT
ON PETITION FOR A WRIT OF CERTIORARI
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Edward Brown respectfully petitions for a writ of certiorari to review the
judgment of the United States Court of Appeals for the First Circuit in this case.
OPINION BELOW
The judgment and opinion of the United States Court of Appeals for the First
Circuit, Case No. 20-1959 (Appendix (“A”) 1-21) is reported as United States v.
Edward Brown, 26 F.4th 48 (1st Cir. 2022). The (amended) judgment of the district
court (A 22-34) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on February 16, 2022. On
May 10, 2022, this Court (Breyer, J.) granted Edward Brown’s application (21A699)
to extend the deadline to file a petition for a writ of certiorari to July 16, 2022. The
(1)
2
jurisdiction of this Court is invoked under 28 U.S.C. §1254(1).
CONSTITUTIONAL PROVISIONS
U.S. Const., Amend. I provides as follows:
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.
U.S. Const., Amend. V provides as follows:
No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any person be subject
for the same offence to be twice put in jeopardy of life or limb; nor shall
be compelled in any criminal case to be a witness against himself, nor
be deprived of life, liberty, or property, without due process of law; nor
shall private property be taken for public use, without just
compensation.
STATEMENT
In 2006, Edward Brown and his wife, Elaine Brown, were indicted by a federal
grand jury on charges arising from their failure to pay taxes. Brown, 26 F.4th at 5354. Edward failed to attend the entire trial but the Browns defended on the grounds
that the government lacked the legal authority to collect the taxes. Id., 26 F.4th at
54. Both were convicted and, in absentia, sentenced to 63 months in prison each. Id.
Neither surrendered to serve their sentences resulting in the issuance of warrants
for their arrests. Id. The Browns holed up in their residence and, for about eight
months thereafter, Edward made threats toward government officials. Id. By way of
example, Edward said that “[i]f anything happens to my wife or I, then everybody
associated with the case will get theirs,” and that, if he was arrested, “people are
3
going to die. The Marshal is going to die... It’s going to be a war.” Id. The Browns
made public statements about their standoff and invited supporters to help them,
including Daniel Riley, Jason Gerhard, Cirino Gonzalez, and Robert Wolffe. Id.
Marshals tried to move clandestinely onto the property and arrest Edward at
the top of his driveway where he normally got the mail. Brown, 26 F.4th at 54. That
attempt failed when Riley, who was walking a dog, encountered officers who arrested
him. Id. Edward heard the commotion and was seen in a tower on top of his home
pointing a .50-caliber rifle toward the driveway. Id.
In the meantime, Riley told the Marshals that he had purchased explosives at
Edward’s request and that Gonzalez had brought firearms to the compound and was
conducting armed patrols. Brown, 26 F.4th at 54-55. Riley also said that handguns
and rifles were stashed strategically throughout the house. Id., 26 F.4th at 55. Riley
told an inmate that he had assembled spring guns and placed explosive containers
around the home. Id. Wolffe also told the Marshals about the firearms in the home,
and added that Edward and Riley had tested which firearms were best suited to make
the biggest explosions when fired at the explosive devices. Id.
Finally, in October 2007, the Marshals made their move. Brown, 26 F.4th at
55. At Elaine’s request, undercover Marshals delivered some property to the Browns’
residence. Id. After the delivery, Edward brought beer out onto the porch. Id. The
Marshals used an agreed-upon signal and grabbed Edward, tasered him, and took
him into custody. Id. They also seized Elaine. Id. Searches of the property revealed
4
improvised explosive devices and large amounts of weapons and ammunition, among
other things. Id.
On January 21, 2009, a Grand Jury in the United States District Court for the
District of New Hampshire charged Edward Brown by Indictment, in Count One,
with conspiracy to prevent officers of the United States from discharging their duties,
in violation of 18 U.S.C. § 372, in Count Two, with conspiracy to commit an offense
against the United States, in violation of 18 U.S.C. §§ 371 and 111, in Count Three,
with carrying and possessing a firearm in connection with a crime of violence, in
violation of 18 U.S.C. §§ 924, 921 and 2, in Count Five, with being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922 and 924, in Count Seven,
with obstructing justice, in violation of 18 U.S.C. § 1503, in Count Nine, with failing
to appear for trial, in violation of 18 U.S.C. § 3146, and, in Count Ten, with failing
to appear for sentencing, in violation of 18 U.S.C. § 3146 (R 57-81).1 The district court
had original jurisdiction pursuant to 18 U.S.C. § 3231, which gives district courts
original jurisdiction over offenses against federal laws. After trial, Edward was
convicted on all counts. Brown, 26 F.4th at 55.
At his sentencing, Edward gave a lengthy allocution before leaving the
courtroom (R 171-200, 204). His allocution was largely devoted to expressing his
unconventional beliefs about the United States Constitution Rangers and about the
law (R 171-200).
1 Petitioner cites to the Record Appendix, filed in the U.S. Court of Appeals for the
First Circuit, pursuant to Supreme Court Rule 12.7. “R” refers to pages of the
Record Appendix. “SR” refers to the Sealed Supplemental Record Appendix.
5
The district court imposed its sentence as follows:
The defendant is hereby committed to the custody of the United States
Bureau of Prisons to be imprisoned for a total term of 444 months.
This term consists of a term of 72 months on Counts One, Five, and
Seven; 60 months on Count Two to run concurrent with Counts One,
Five, and Seven; 12 months on Counts Nine and Ten, to be served
consecutively to the terms imposed on Counts One, Two, Five, and
Seven; and 360 months on Count Three to be served consecutively to the
terms imposed on Counts One, Two, Five, Seven, Nine and Ten.
The term of imprisonment imposed by this judgment shall run
consecutively to the defendant’s imprisonment under any previous state
or Federal sentence.
(R 215).2 The district court explained its original sentence as follows:
The term of the sentence I’m imposing is sufficient but not greater than
necessary to effectuate the goals of 18 USC, Section 3553(a).
In setting this sentence, I’ve carefully considered the sentencing range
set forth in the advisory lines. I of course give the guidelines no
controlling weight. I’ve also taken into account all the factors set forth
2 The district court orally imposed imprisonment of “12 months on Count 9 and 10
to be concurrent with the terms imposed on Counts 1, 2, 5, and 7” (R 208)
(emphasis supplied). This conflicted materially with the sentence in the written
judgment, which imposed a sentence of imprisonment of “12 months on Counts Nine
and Ten, to be served consecutively to the terms imposed on Counts One, Two,
Five, and Seven” (R 215) (emphasis supplied). “[A]n oral sentence prevails over a
written judgment if there is a material conflict between the two.” United States v.
Santa-Otero, 618 Fed. Appx. 6, 8 (1st Cir. 2015) (oral sentence of three-year term of
supervised release prevailed over written judgment’s five-year term of supervised
release), quoting United States v. Riccio, 567 F.3d 39 (1st Cir. 2009); see also United
States v. Melendez-Santana, 353 F.3d 93, 100 (1st Cir. 2003) (collecting cases),
overruled, in part, on other grounds by United States v. Padilla, 415 F.3d 211, 215
(1st Cir. 2005). Here, the oral judgment was that the sentence of imprisonment on
Counts Nine and Ten were to be served concurrently to the sentences on Counts
One, Two, Five and Seven. As a result, Brown’s sentence ended, at the very latest,
on January 4, 2019. As the court of appeal recognized, however, “the discrepancy is
irrelevant here because even if the sentence on Counts IX and X did run
consecutively, the total on Counts I, II, V, VII, IX, and X would be 84 months. And it
is undisputed that Edward had served at least that amount before resentencing.”
Brown, 26 F.4th at 60 n.9.
6
in 18 USC, Section 3553(a), and, in particular, the following factors: The
nature and circumstances of the offense, the seriousness of the offense,
the need to promote respect for the law, the need to – ... -- impose just
punishment, the need for deterrence -- ... -- the need to protect the public
from further crimes of this defendant, and the impact of the crime on
the victims here.
...
In many ways Mr. Brown is a very lucky man to be living in this country.
There are many countries in the world that if he had disobeyed a court
order, he wouldn’t have been sitting in his home for nine months
threatening government officials who were trying to enforce a court
order. Despite Mr. Brown’s feelings about the government, most
governments in the world today would have executed the sentence
promptly and most likely have executed Mr. Brown quite promptly.
Mr. Brown is an individual who takes the benefits of the society that he
lives in with regard to freedom of speech, freedom to publish, the right
to due process, yet wishes to deny those freedoms to others. Mr. Brown
engaged in a long period of lawlessness and endangered multiple
government officials in the discharge of their duties.
It’s clear to me that Mr. Brown is entirely unrepentant. His words are,
quote, I will never quit, unquote. He prides himself on the fact that he
could have killed a number of marshals, yet through his inherent
goodness failed to do so. I have no doubt in my mind that Mr. Brown
would have killed multiple marshals if they hadn’t dealt with him so
effectively.
So the actions of Mr. Brown are reprehensible. The seriousness of the
offense is high, and I believe a severe punishment is necessary to
promote respect for the law and to deter others who attempted to engage
in this type of conduct.
Mr. Brown confuses the ability of people in this country to promote their
views with his decision that everyone must agree with him. Mr. Brown
would deny the right to others of their beliefs merely because they
conflict with his. Surprisingly, or not surprisingly, that’s his right in this
country.
This is a very sad case in many ways. It’s very sad that Mr. Brown and
his beliefs caused others to be entrapped in his way. Mr. Riley who will
in all likelihood never leave prison, Mr. Gonzalez who, though he
received a shorter prison sentence, has apparently been irrevocably
tainted by these views, and I fear for Mr. Gonzalez’s future, Mr. Wolffe
7
whose life has been totally disrupted because of Mr. Brown, and most
pathetically Mr. Gerhard, a young student who was drawn into the
beliefs espoused by Mr. Brown is serving a severe prison sentence
because of his involvement with the weapons and explosives.
Regardless of Mr. Brown’s belief and his views, I was hoping for some
indication of remorse of what occurred to these others.
Mrs. Brown, who has now been sentenced to -- in all likelihood is the
rest of her natural life in prison, perhaps an indication of remorse that
his wife, a woman who lifted herself up by her boot straps to become a
dentist, must serve most likely the rest of her life. An indication of
remorse, sympathy, or sadness might have been appropriate.
And what is perhaps the saddest of all in terms of Mr. Brown is an
individual who throughout his life never quite garnered the stature that
he believed he deserved until the media, because of his views in this case
and his threats to the government, gave him the glory that he felt he
deserved all along.
Someone once said that everyone gets their fifteen minutes of fame, and
Mr. Brown unfortunately was revelling in his during the course of his
conduct. His fifteen minutes ran out.
(R 204-207).
On February 29, 2016, Edward filed a motion to vacate his sentence pursuant
to 28 U.S.C. § 2255 (R 224-225). On October 11, 2019, the Court of Appeals authorized
Edward “to pursue in the district court a challenge to his § 924(c) conviction(s) based
on Johnson II and related precedent” (R 49,227).3 On December 27, 2019, the district
court ordered Edward’s conviction and sentence for violating 18 U.S.C. § 924(c)
(Count Three) be vacated (R 227,229-230). On February 6, 2020, judgment entered
regarding the motion under 28 U.S.C. § 2255 (R 228,231). Having granted Edward’s
3 Johnson v. United States, 576 U.S. 591 (2015).
8
motion under 28 U.S.C. § 2255, the district court ordered resentencing. Brown, 26
F.4th at 57.
Edward objected to being resentenced, arguing that resentencing would violate
both the Double Jeopardy and Due Process Clauses of the Fifth Amendment, Brown,
26 F.4th at 57, because the Fifth Amendment barred resentencing or imposition of a
sentence of incarceration greater than the sentences already imposed and served (R
234-239,255,271-272). The district court overruled those objections (R 271-272). In
the alternative, Edward sought a sentence of time served. Id.
Dr. Jill Durand, a licensed psychologist, conducted an aid in sentencing
evaluation of Edward (R 245-254). Edward was 78 years old at the time of Durand’s
evaluation and had suffered a transient ischemic attack in October 2019 (R 247-248).
Edward’s childhood history was notable for “neglect, foster care and group home
placement” (R 247). He has “no contact with any family members” (R 247). During
the clinical interview, Edward maintained his beliefs, acknowledging that “his
‘principles’ and beliefs about the Government ‘will never change.’” (R 251-252).
Notably, Edward “indicated that he has no plans to access weapons in the future” (R
252). Edward told Dr. Durand that “if he is granted release and returns to the
community he wants to be ‘left alone, but I am going to have to satisfy the Court. I
am going to have to do a supervised release program. I’m not crazy about it, if you
make one silly mistake they send you back for all three years.’” (R 252). Dr. Durand
described Edward’s presentation “as an intelligent and articulate adult man, with a
history of early loss and separation, exposure to parental substance use, and limited
9
academic success” (R 253). Edward “continues to present as somewhat pressured and
disorganized, which may be secondary to stress and/or anxiety” and “with many
personality traits consistent with both a Narcissistic Personality Disorder, as well as
a Paranoid Personality Disorder” (R 253). According to Dr. Durand, Edward “remains
convinced that he has been treated unjustly throughout most of his life. Edward
possesses very fixed beliefs about the US Government and his obligation or role in
upholding the Constitution. Edward’s beliefs and convictions are unwavering.” (R
253). Dr. Durand opined:
From a psychological perspective, there is little concern that if released,
Mr. Brown would pose a threat to others in the general community. He
asserts that he has no current need or use for weapons. However, it is
commonly accepted that access to weapons would raise the risk of future
potential, dangerous situations. Mr. Brown has expressed his desire to
focus on creating an improved educational system. Finally, given Mr.
Brown’s unwavering beliefs regarding his relationship with the
government and tax responsibilities, there is concern that Mr. Brown
would not follow conditions to manage repayment of back taxes. There
is also concern that if Mr. Brown finds the US Probation Office to be
infringing on his rights, that he will ignore or evade attempts to have
him follow the conditions of release. He has stated that signing any
“contract” for release would be under “duress.”
...
While he expresses no use for weapons at this time, access to firearms
should be restricted. It is further recommended that any conditions of
release are clearly written and presented to Mr. Brown. Any behaviors
that would be considered a violation of the conditions of release should
be clearly outlined. If required to meet with a probation officer, the
expectations for the frequency and location of those meetings should be
detailed ahead of time to reduce ambiguity in expectations.
(R 253-254).
Edward’s co-conspirators who had remained in custody in 2020 were all
resentenced to time served (R 259,266,340). Riley originally received a 432-month
10
sentence of imprisonment, Gerhard originally received a 240-month sentence of
imprisonment, Gonzalez received a 96-month term of imprisonment and Wolffe
received a 30-month term of imprisonment (SR 4-5). Elaine’s original sentence had
been about 35 years in prison. United States v. Brown, 669 F.3d 10, 16 (1st Cir. 2012).
According to the Bureau of Prisons Inmate Locator, Wolffe was released on November
16, 2009, Gonzalez was released on August 29, 2014, Gerhard was released on
January 30, 2020, Riley was released on January 31, 2020 and Elaine was released
on February 28, 2020. See https://www.bop.gov/inmateloc/ (last visited July 11, 2022).
In his sentencing memorandum, Edward argued, among other things, that
even if his conduct was more culpable than that of his coconspirators, “one must note
that he was found guilty of conduct similar to his codefendants, and his criminal
record is similar to theirs. As a result, notwithstanding other factors, his sentence
ought to be similar to those of his codefendants in order to avoid unwarranted
sentencing disparities” (R 259-260). Acknowledging that a distinction between
Edward and his coconspirators was his continued belief in the ideas that got him into
trouble, counsel argued that Edward was “not committed to perform any actions
necessary to effectuate those ideas” (R 260-261). Edward argued that he “should not
be punished any further based on his words (then or now) rather than upon his deeds”
(R 261) (emphasis supplied). Edward also urged the district court not to impose a
longer sentence based on his allocution (R 263). Edward specifically argued: “In the
United States, no one, neither Brown nor anyone else, should be punished for his
beliefs or for his expression of those beliefs” (R 263). Edward also urged the district
11
court to consider Edward’s advanced age, declining health and the Covid-19
pandemic, among other things (R 255-264).
With regard to Edward’s coconspirators, counsel observed that a guidelines
sentence would be a “massive discrepancy between a time-served sentence,” noting
that several coconspirators were much younger than Edward and that Edward’s life
expectancy at the time of the hearing was only 9.7 years (R 280-281). Counsel argued
that “more important than remorse is the fact that we have somebody who has
committed to not physically resisting the government, and that’s what matters. It
doesn’t matter what he believes in his head; what matters is what he’s going to do.”
(R 281). Counsel argued that “if 13 years of prison essentially in your golden years,
losing almost, you know, the majority of your retirement isn’t enough to deter
someone from doing what Mr. Brown did, then the marginal deterrence of any further
sentencing is essentially meaningless and strictly punitive” (R 280-281). Finally,
counsel argued that, while Edward may continue to hold his unconventional beliefs,
“he’s committed to raising those legal beliefs by manner of speech and not by manner
of outburst, or not cooperating with an attorney, or the kinds of problems that existed
all those years ago” (R 284-285).
Edward, for his part, gave a lengthy allocution similar to his original allocution
(R 286-330). See Brown, 26 F.4th at 57-58. When the district court noted that it was
troubled by Edward’s beliefs that the laws were not valid, Edward did acknowledge
that “I have no choice. I have to follow them, and he’s correct” (R 319). Regarding the
12
laws he viewed as invalid, Edward added: “Well, I do commit, yeah, I do commit to
following them. I will follow them. I have no choice. I have to follow the laws” (R 320).
The district court calculated the applicable guidelines range as 360 months to
life imprisonment (R 336). The district court imposed a total sentence of 300 months
imprisonment, broken down as follows: Count One, 72 months; Count Two, 60
months; Count Five, 60 months; Count Seven, 60 months; Count Nine, 24 months;
and Count Ten, 24 months (R 342). The sentence on each count was to run
consecutively (R 342).
The district court explained its sentence as follows:
I’ve determined the sentence I’m imposing is sufficient but not greater
than necessary to effectuate the goals of 18 U.S.C. Section 3553(a). In
setting this sentence, I’ve carefully considered the sentencing range set
forth in the advisory guidelines, though I give the guidelines no
controlling weight. I have taken into account all of the factors set forth
in 3553(a). I find most important the nature and circumstances of the
offense, the history and personal characteristics of this defendant, the
seriousness of the offense, the need to promote respect for the law, the
need for just punishment, the need for specific and general deterrence,
and the need to protect the public from further crimes of this defendant.
Let me go into a bit more detail. Mr. Falkner in his argument indicates
that he shouldn’t be sentenced simply upon his beliefs. As I indicated to
Mr. Falkner, we are certainly aware of his beliefs, and we were aware of
his beliefs prior to his conviction on the tax charges and his beliefs
following that. The problem is that he acts on his beliefs, and, by acting
on his beliefs, he put in danger multiple individuals, not only law
enforcement officers, but put in danger those individuals that were
ensconced with him as they held off law enforcement from executing a
valid arrest warrant.
Mr. Falkner indicates that this individual, Mr. Brown, has been in
custody in 2007, and at an earlier sentencing other people were released
for time served. I’ll deal with that in more detail later on. I would only
indicate at this point that Mr. Brown was the leader and instigator of
the entire standoff, and others were brought into that event through Mr.
Brown’s eloquence.
13
I’ve listened very carefully to Mr. Brown’s allocution. Parts of it strike
me deeply. His views as expressed during the psychological assessment
were, in fact, as he indicated, true. He views the criminal law system as
a farce in a sense, that it’s simply run by a European cartel and is not
applicable to him. He denies any accountability for his criminal
activism. He feels that he did nothing wrong and that the law is wrong.
He indicated that he would continue to not pay his taxes. Whether or
not he had taxes is not relevant to me, particularly. An element of, “I
don’t intend to obey the law,” is relevant to me.
I took a moment before I came down to look at the earlier events that
took place around his house. Since this is a resentencing, I wanted to get
a full impact of what happened.
This is the crime we’re discussing. Mr. Brown and his followers,
including his wife, barricaded themselves in a home built as a fortress
to escape serving a valid sentence entered into by this Court for violation
of the tax laws. He armed himself and his followers, daring law
enforcement to come and get him. The risk of danger to himself, his
followers and law enforcement was extreme.
When I say “armed himself,” we’re talking about the law enforcement
personnel later finding 20 pipe bombs in his bedroom, improvised
explosive devices with nails taped around them built in the house and
ready for use. A .50-caliber sniper-type rifle with a night scope was found
in his bedroom, along with other arms. Another .50-caliber rifle with a
night scope was found on the third floor, also with a night scope. I see
these as simply and apparently weapons designed to pick off law
enforcement personnel, should they approach the house.
Also found were numerous assault rifles, improvised explosive devices,
tear gas canisters, all scattered throughout the house. Also found were
scattered firearms and bombs and what I have to describe as a huge
amount of ammunition ready for use.
Outside the house were found multiple improvised explosive devices
hanging from trees, covered -- again, these devices were covered with
nails so that an explosion would drive nails into people in the immediate
vicinity. Also, a propane cylinder was hung from a tree marked with a
red cross so it could be hit and exploded.
Threats were made what would happen if the law enforcement
personnel tried to execute a valid order of a judge of this court.
I saw in this court a short time ago Elaine Brown, Daniel Riley and
Jason Gerhard. Cirino Gonzalez, another participant here, had earlier
14
been released and I think went home to live with his family down in
Texas. Mr. Falkner is exactly right, that I released Elaine, and I released
Daniel Riley, and I released Jason.
Tragically, Jason Gerhard was 21 years old when he got involved with
Ed Brown. My memory is that he came up I think as a reporter. He was
brainwashed by Mr. Brown in terms of his beliefs and became an active
participant in the crime.
Dan Riley was another participant and Elaine Brown, who my memory
was that she was an individual who pulled herself up by her own
bootstraps, became educated as a dentist, and had a flourishing dental
practice in New Hampshire.
Each one of these individuals was released by me for time served in
opposition to suggestions by the U.S. Attorney, because I believed, in
talking to them and looking at them, that they had learned something
during the period of time that they were in prison. They learned that
what they had done was wrong; they learned that what they had done
was a mistake. They appeared broken by the period of incarceration to
the extent that it was clear in my mind that there was no risk from any
of them in terms of reverting back to the type of activities that they had
engaged in earlier.
I don’t see that in Mr. Brown. It’s hard to accept that an individual won’t
break the law in the future if the individual indicates to this minute that
these are not laws, they’re not valid laws. It’s hard to be confident that
society will not be threatened by criminal conduct when individuals
don’t recognize it as criminal conduct. It’s hard to accept that an
individual will follow conditions of release issued by a judge of this court
when the individual does not accept that the judge has the authority to
issue any orders.
The last time that I sentenced Mr. Brown -- he wasn’t present for all of
the sentencing, because he walked out at one point -- I indicated that
Mr. Brown takes the benefits bestowed by society yet refuses to allow
them to others. By that I mean that the due process that was provided
to him was denied by him to law enforcement personnel. At that time he
was unrepentant, and now he says to the psychological examiner, “I will
never quit.” In my view, I believed then and I believe now that he would
have killed or injured multiple law enforcement personnel, had they
attempted to physically arrest him.
When asked today if he felt what he engaged in at that time was a crime,
the record will be clear that he does not. His activities then and I believe
15
his intent today is reprehensible, and a serious punishment is still
required to promote respect for the law and to deter others.
(R 337-341).
Counsel lodged the following objection:
[P]lease note my objection to the sentence imposed on the grounds that
it violates Mr. Brown’s rights under the double jeopardy and due process
clauses of the Fifth Amendment and on the grounds that it is a longer
sentence than necessary in order to comply with the purposes of Section
3553(a), and that, therefore, it is substantively unreasonable.
(R 344).
An amended judgment entered on September 29, 2020 (R 55,346-348). On the
same day, Edward filed a timely notice of appeal (R 55,359-360). The court of appeals
had jurisdiction pursuant to 28 U.S.C. § 1291, which gives federal courts of appeals
jurisdiction over appeals from all final decisions of the district courts.
The court of appeals rejected Edward’s argument that resentencing him
violated the Double Jeopardy Clause of the Fifth Amendment. Brown, 26 F.4th at
58-64. The court of appeals cited to Pepper v. United States, 562 U.S. 476, 507
(2011) for the proposition that “[a] criminal sentence is a package of sanctions that
the district court utilizes to effectuate its sentencing intent.” Brown, 26 F.4th at 59.
The court of appeals then relied on its own precedent for the proposition that,
“where the Guidelines contemplate an interdependent relationship between the
sentence for the vacated conviction and the sentence for the remaining convictions –
a sentencing package – a district court may, on a petition under 28 U.S.C. § 2255,
resentence on the remaining convictions.” Id., quoting United States v. Rodriguez,
112 F.3d 26, 30-31 (1st Cir. 1997). The court of appeals also rejected Edward’s
16
argument that he had “completed serving a valid sentence,” because Edward had
not completely served the “aggregate sentencing package.” Brown, 26 F.4th at 6061. As the court of appeals noted, every other court of appeals has agreed. Id., 26
F.4th at 61, citing United States v. Triestman, 178 F.3d 624, 631-632 (2d Cir. 1999);
United States v. Smith, 115 F.3d 241, 247 (4th Cir. 1997); United States v.
Benbrook, 119 F.3d 338, 340-341 (5th Cir. 1997); Pasquarille v. United States, 130
F.3d 1220, 1222-1223 (6th Cir. 1997); United States v. Smith, 103 F.3d 531, 535 (7th
Cir. 1996); United States v. Alton, 120 F.3d 114, 116 (8th Cir. 1997); United States v.
McClain, 133 F.3d 1191, 1192-1194 (9th Cir. 1998); United States v. Easterling, 157
F.3d 1220, 1223-1224 (10th Cir. 1998); United States v. Townsend, 178 F.3d 558,
569-570 (D.C. Cir. 1999).
The court of appeals thus held that Edward’s double-jeopardy claim “rises
and falls with whether his original sentence is properly considered a package.”
Brown, 26 F.4th at 62. Finding that Edward’s original 444-month sentence was “one
package,” the court of appeals found that he had “no legitimate expectation of
finality until []he has served the entire package of interrelated sentences.” Id., 26
F.4th at 63-64. Thus, the court held that “Edward’s rights under the Double
Jeopardy Clause were not violated here, particularly where he received a new
aggregate sentence substantially below the aggregate sentence initially imposed:
300 months compared to the original 444.” Id., 26 F.4th at 64.
The court of appeals likewise rejected Edward’s claims that the district
court’s reliance on his beliefs in fashioning a sentence was inappropriate as a
17
matter of procedural or substantive reasonableness. Brown, 26 F.4th at 65-69. The
court of appeals acknowledged that “a defendant’s abstract beliefs, however
obnoxious to most people, may not be taken into consideration by a sentencing
judge.” Id., 26 F.4th at 66, quoting Wisconsin v. Mitchell, 508 U.S. 476, 485 (1993).
Nonetheless, the court of appeals determined that Edward’s “beliefs about the
authority of the government or the criminal laws” were “highly relevant to the [28
U.S.C.] § 3553(a) factors.” Brown, 26 F.4th at 67. The court of appeals relied both
upon the fact that the district court saw Edward’s statements as “a recipe for
trouble,” and the district court’s view that Edward did not intend to obey the law.
Id. In the view of the court of appeals, those concerns play into relevant sentencing
factors, including “the need to promote respect for the law, the need to deter
Edward and others from committing the same crimes, and the need to protect the
public from further crimes committed by Edward.” Id. Thus, the court of appeals
found “no procedural error in the district court’s reliance on Edward’s beliefs in
considering these sentencing factors.” Id., 26 F.4th at 67-68. For the same reasons,
the court of appeals rejected Edward’s argument that the district court’s reliance on
his beliefs resulted in a substantively unreasonable sentence. Id., 26 F.4th at 69.
REASONS FOR GRANTING THE PETITION
I.
Resentencing in this case violated Edward Brown’s rights
under the Double Jeopardy Clause of the Fifth
Amendment, where he served the sentences in their
entirety before resentencing.
Edward Brown objected to resentencing on the grounds that the Double
Jeopardy Clause of the Fifth Amendment barred resentencing or imposition of a
18
sentence of incarceration greater than the sentences already imposed and served (R
234-238,255,271-272). The district court overruled those objections (R 271-272). The
court of appeals affirmed. Brown, 26 F.4th at 58-64. The opinion of the court of appeals
(and every other court of appeals to consider the issue) conflicts with the opinion of
this Court in Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874).
A.
Edward Brown served the entirety of his sentences
before being resentenced.
Edward Brown was taken into custody on October 4, 2007 (SR 14). His 63month tax evasion sentence thus ended no later than January 3, 2013 (SR 25). The
72-month sentence on Counts One, Five and Seven in this case therefore began
running no later than January 4, 2013 and ended no later than January 3, 2019 (R
233). The 60-month sentence on Count Two in this case began running no later than
January 4, 2013 and ended no later than January 3, 2018 (R 233). Assuming
arguendo, without conceding, that the 12-month sentences on Counts Nine and Ten
were consecutive to the others, as reflected in the written judgment, rather than
concurrent, as reflected in the sentencing transcript, those sentences began running
no later than January 4, 2019 and ended no later than January 3, 2020 (R 233). Even
under this view, Brown finished serving all other sentences of imprisonment and
began serving the now-vacated 360-month term of imprisonment on Count Three no
later than January 4, 2020 (R 233).
B.
Resentencing violated Edward’s rights under the
Double Jeopardy Clause of the Fifth Amendment.
Since Edward has been in custody or prison since October 4, 2007, he had
served the sentences of imprisonment imposed by the district court as to all other
19
convictions at the time of resentencing. The judgment imposing those terms of
imprisonment was fully satisfied. Resentencing Edward violated the Fifth
Amendment’s Double Jeopardy prohibition against multiple punishments for an
offense. Therefore, the district court was barred from imposing a new sentence or a
sentence greater than that already imposed.
The Double Jeopardy Clause of the Fifth Amendment provides that no person
shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The
principle that a defendant may not be resentenced on a conviction after he has
completed the sentence for that conviction was recognized by this Court as “settled”
law nearly a century and a half ago in Lange, 85 U.S. at 168 (“If there is anything
settled in the jurisprudence of England and America, it is that no man can be twice
lawfully punished for the same offence”). In Lange, the statute under which the
defendant was convicted provided for either incarceration or a fine. Id., 85 U.S. at
174. At the first sentencing, the trial court imposed both a fine and a period of
incarceration. Id. The defendant paid the fine in full and then sought review, with
the result that the first sentence was vacated as illegal. Id. The trial court
resentenced the defendant to only a period of incarceration. Id., 85 U.S. at 175.
However, this Court found that the resentencing violated the Double Jeopardy Clause
of the Fifth Amendment because when the defendant paid the fine he satisfied the
original sentence to the extent it was valid. Id., 85 U.S. at 176.
[W]hen the prisoner, as in this case, by reason of a valid judgment, had
fully suffered one of the alternative punishments to which alone the law
subjected him, the power of the court to punish further was gone. That
the principle we have discussed then interposed its shield, and forbid
20
that he should be punished again for that offence. The record of the
court’s proceedings, at the moment the second sentence was rendered,
showed that in that very case, and for that very offence, the prisoner had
fully performed, completed, and endured one of the alternative
punishments which the law prescribed for that offence, and had suffered
five days’ imprisonment on account of the other. It thus showed the court
that its power to punish for that offence was at an end.
Id. Lange remains binding law to the extent that it stands for the proposition that
the Double Jeopardy Clause is violated if a defendant is resentenced after he has
entirely served the sentence originally imposed for a conviction.
Sixty-nine years after Lange (and 79 years ago), this Court recommitted to the
principle that, once a punishment has been suffered, no further punishment may be
imposed. In re Bradley, 318 U.S. 50, 51-52 (1943). In Bradley, as in Lange, Mr.
Bradley was convicted of a crime punishable by a fine or imprisonment. 318 U.S. at
51. He was sentenced to both imprisonment and the fine. Id. While Bradley was in
custody, his attorney paid the fine. Id. The Court reiterated its holding in Lange: “As
the judgment of the court was thus executed so as to be a full satisfaction of one of
the alternative penalties of the law, the power of the court was at an end.” Bradley,
310 U.S. at 52.
The court of appeals leaned upon Jones v. Thomas, 491 U.S. 376, 382-383
(1989) in order to evade the reach of Lange. See Brown, 26 F.4th at 62 n.10. But Jones
did not overrule Lange. Jones involved a defendant who was sentenced to “consecutive
terms of 15 years for the attempted robbery and life imprisonment for the felony
murder, with the 15-year sentence to run first.” 491 U.S. at 378. While Jones’ case
was pending, the Missouri Supreme Court held that the Missouri Legislature had not
intended to authorize separate punishments under the felony murder statute. Id.,
21
491 U.S. at 378-379. Ultimately, Jones’ 15-year sentence was vacated and he was
made to serve the sentence for the felony murder, with credit for the time he had been
serving the attempted robbery sentence. Id., 491 U.S. at 379. The Jones Court
departed from the principle “that once a defendant ‘had fully suffered one of the
alternative punishments to which alone the law subjected him, the power of the court
to punish further was gone.’” 491 U.S. at 382, citing Lange, 85 U.S. at 176. Thus, the
Court held that the Double Jeopardy Clause did not require that the life sentence for
murder be vacated.
This case is not governed by Jones but instead by Lange. Jones was not
resentenced on the satisfied attempted robbery sentence, nor was his life sentence
increased. This case presents the situation of a defendant who had fully discharged
his sentences on the same convictions for which he was resentenced. Edward Brown
served more than the twelve years imposed for his valid counts of conviction.
Resentencing him amounted to punishing him twice in violation of the Fifth
Amendment’s prohibition against Double Jeopardy.
The court of appeals applied the so-called “sentencing package doctrine” to find
that Edward had not fully served his sentences on the convictions for which he was
resentenced. Brown, 26 F.4th at 59-61. To be sure, in Pepper, this Court has stated
that “[b]ecause a district court’s ‘original sentencing intent may be undermined by
altering one portion of the calculus,’ United States v. White, 406 F.3d 827, 832 (7th
Cir. 2005), an appellate court when reversing one part of a defendant’s sentence ‘may
vacate the entire sentence ... so that, on remand, the trial court can reconfigure the
22
sentencing plan ... to satisfy the sentencing factors in 18 U.S.C. § 3553(a).’” Pepper,
562 U.S. at 507, quoting Greenlaw v. United States, 554 U.S. 237, 253 (2008).
However, neither Pepper nor Greenlaw involved a double-jeopardy challenge to
resentencing. This Court has never held that a sentence of incarceration, fully served,
may be the subject of resentencing to a longer term of incarceration.
Every other court of appeals to consider the issue has agreed with the First
Circuit. See United States v. Triestman, 178 F.3d 624, 631 (2d Cir. 1999); United
States v. Smith, 115 F.3d 241, 245-247 (4th Cir. 1997); United States v. Benbrook, 119
F.3d 338, 339-340 (5th Cir. 1997); Pasquarille v. United States, 130 F.3d 1220, 12221223 (6th Cir. 1997); United States v. Smith, 103 F.3d 531, 535 (7th Cir. 1996); United
States v. Alton, 120 F.3d 114, 116 (8th Cir. 1997); United States v. McClain, 133 F.3d
1191, 1193-1194 (9th Cir. 1998); United States v. Easterling, 157 F.3d 1220, 12231224 (10th Cir. 1998); United States v. Watkins, 147 F.3d 1294, 1297-1298 (11th Cir.
1998); United States v. Townsend, 178 F.3d 558, 569-571 (D.C. Cir. 1999). Throughout
nearly the entire country, the courts of appeals have authorized within their
jurisdictions sentencing practices directly at odds with this Court’s jurisprudence.
This Court should intervene.
II.
Edward Brown’s sentence was procedurally and
substantively unreasonable in that it was longer than
necessary to achieve the sentencing goals, where it was
based upon the expression of his political beliefs, resulting
in a sentence that was extremely disproportionate to those
of his coconspirators, who received time served sentences.
The district court abused its discretion by imposing a lengthy sentence, based
on Brown’s expression of his political beliefs, that was extremely disproportionate to
23
the sentences imposed upon Brown’s coconspirators, who received time-served
sentences on resentencing. Edward argued in his sentencing memorandum that a
lengthy sentence would result in unwarranted sentence disparities with his
coconspirators (R 259-260). He reiterated those arguments at sentencing (R 12-14).
Likewise, Edward argued that he was “constitutionally entitled to hold and to express
his beliefs” and that he should not be punished for doing so (R 263). At sentencing,
Brown criticized the government for “proposing your Honor impose a sentence
essentially based on his beliefs,” and that “[i]t doesn’t matter what he believes in his
head; what matters is what he’s going to do” (R 275,281). Finally, Brown objected “to
the sentence imposed on the grounds ... that it is a longer sentence than necessary in
order to comply with the purposes of Section 3553(a), and that, therefore, it is
substantively unreasonable” (R 344).
The district court should not have punished Edward for maintaining his beliefs
after almost thirteen years in prison. A “defendant’s abstract beliefs, however
obnoxious to most people, may not be taken into consideration by a sentencing judge.”
Mitchell, 508 U.S. at 485-486, citing Dawson v. Delaware, 503 U.S. 159, 167 (1992)
(failure to exclude evidence that defendant was member of white supremacist prison
gang violated First Amendment); see also United States v. Lemon, 723 F.2d 922, 938
(D.C. Cir. 1983) (“A sentence based to any degree on activity or beliefs protected by
the [F]irst [A]mendment is constitutionally invalid”); contrast Barclay v. Florida, 463
U.S. 939, 942-944, 949 (1983) (plurality opinion) (court could consider defendant’s
racial animus toward victim, consistent with statutory aggravating factors, when
24
sentencing murder defendant). Nonetheless, Edward’s political beliefs are precisely
what the court relied upon when imposing this draconian sentence (R 73-74).
The district court observed that Gerhard, Riley and Elaine “learned that what
they had done was wrong; they learned that what they had done was a mistake. They
appeared broken by the period of incarceration...” (R 340). To be sure, “the sentencing
judge properly may consider the defendant’s amenability to rehabilitation and
expressions of remorse for the crime committed when the judge selects an appropriate
sentence.” United States v. Rosenberg, 806 F.2d 1169, 1179 (3d Cir. 1986). But the
district court here strayed beyond considerations of rehabilitation and expressions of
remorse. Even though Edward had “no disciplinary records that suggest aggressive,
threatening or physically assaultive behavior while incarcerated,” the district court
contrasted Edward with Gerhard, Riley and Elaine as follows: “[i]t’s hard to accept
that an individual won’t break the law in the future if the individual indicates to this
minute that these are not laws, they’re not valid laws” (R 248,341). The district court
described Edward’s “intent today” as “reprehensible, and a serious punishment is still
required” (R 341).
The First Circuit has held, consistent with this Court’s case law, that a district
court violated the First Amendment by considering a defendant’s violent lyrics and
music videos at sentencing. United States v. Alvarez-Nunez, 828 F.3d 52, 58 (1st Cir.
2016); contrast United States v. Simkanin, 420 F.3d 397, 417-418 (5th Cir. 2006) (no
constitutional error to consider defendant’s belief that tax laws are invalid, when
“directly related to the crimes in question”). Here, the district court violated the First
25
Amendment by considering Edward’s beliefs in imposing sentence. The district court,
in essence, insisted, as a condition of release, that Edward be “broken” by his
imprisonment and that he renounce his beliefs. No judge can or should require
renunciation of one’s beliefs as a condition of being released.
A federal sentence must be “sufficient, but not greater than necessary” to
comply with the purposes set forth at 18 U.S.C. § 3553(a)(2). Here, the court increased
Edward’s sentence because his expression of his beliefs demonstrated that he had not
been “broken” like his coconspirators. This increase of sentence thus violated
Edward’s First Amendment rights to maintain his own beliefs and to express them.
It also resulted in a substantively unreasonable sentence.
The district court’s reliance on Edward’s beliefs resulted in a sentence that was
extremely and unfairly disproportionate to that of his coconspirators resulting in a
sentence which violated 18 U.S.C. § 3553(a)(6) (“the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found
guilty of similar conduct”). “The key word is ‘unwarranted’ – that is, § 3553(a)(6) does
not ban all disparities, just ‘unwarranted’ ones.” United States v. Romero, 906 F.3d
196, 211 (1st Cir. 2018). “‘[L]egitimate concerns may arise’ if a judge sentences
‘similarly situated coconspirators or codefendants’ to ‘inexplicably disparate’ terms.”
Id., quoting United States v. Demers, 842 F.3d 8, 15 (1st Cir. 2016). In contrast,
disparity in sentencing may be legitimately explained by “things like dissimilar
criminal involvement, criminal histories, or cooperation with the government,”
26
among other things. Romero, 906 F.3d at 211-212, quoting United States v. FloresMachicote, 706 F.3d 16, 24 (1st Cir. 2013).
Here, Edward Brown, whose original sentence was to 37 years in prison, is now
79 years old and will be in prison until June 9, 2034, at which time, if he were
somehow to survive, he will be 91 years old. See https://www.bop.gov/inmateloc/ (last
visited July 11, 2022). Elaine, whose original sentence was 35 years in prison, is now
81 years, yet the district court ordered her released on February 28, 2020. Id. Daniel
Riley, whose original sentence was 36 years in prison, is now 54 years old, yet the
district court ordered him released on January 31, 2020. Id. Finally, Jason Gerhard,
who original sentence was 20 years in prison, is now 36 years old, yet the district
court ordered him released on January 30, 2020. Id.
Edward’s current life expectancy is 8.8 years. See https://www.ssa.gov/cgibin/longevity.cgi (last visited July 11, 2022). He is therefore currently expected to live
only until May 2031, more than three years before his current release date. In effect,
he has been sentenced to life imprisonment. A sentence longer than the life
expectancy for a man in his late seventies is simply unreasonable and cannot be
adequately explained by the district court’s stated rationale. First, the district court
explained that Edward “acts” on his beliefs (R 338). To the extent that he acted on his
beliefs in 2007 – some 14 years ago – so too did Elaine, Riley and Gerhard. Second,
the district court explained that Edward was the “leader and instigator of the entire
standoff, and others were brought into that event through Mr. Brown’s eloquence” (R
338). While Edward may have been more culpable than his other coconspirators, such
27
an explanation cannot adequately explain the extreme disparity between his sentence
and the others – particularly where Elaine’s and Riley’s original sentences were
roughly comparable to Edward’s, indicating that based upon the facts of the offenses
and criminal histories (and all of the other 18 U.S.C. § 3553(a) factors), the district
court at the time of the original sentencing hearings considered each of those three
defendants roughly comparable.
The true reason for the extreme discrepancy, as stated by the district court, is
his view that Brown, Riley and Gerhard were “broken” by their time in prison,
whereas Edward continued to believe that the laws were not valid and that he had
been treated unjustly (R 340-341). This consideration was not only inappropriate and
unconstitutional, as discussed supra, but was also woefully inadequate to explain
such a cruel and extreme sentencing disparity.
While Edward Brown violated the law, he has already served a lengthy prison
sentence already. He does not deserve to die in prison simply because, unlike his
coconspirators, he believes that the laws are invalid and that he was treated unfairly.
By sentencing Edward Brown to spend the rest of his life in prison based upon his
belief system, the district court imposed a sentence which far exceeded that necessary
to comply with the sentencing factors set forth in 18 U.S.C. § 3553(a).
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
28
Petitioner
Edward Brown
By his Attorney,
Benjamin L. Falkner, Esq.
Counsel of Record
Krasnoo, Klehm & Falkner LLP
28 Andover Street, Suite 240
Andover, MA 01810
bfalkner@kkf-attorneys.com
(978) 475-9955
Case: 20-1959
Document: 00117843242
Page: 1
Date Filed: 02/16/2022
Entry ID: 6477474
APPENDIX A
United States Court of Appeals
For the First Circuit
No. 20-1959
UNITED STATES OF AMERICA,
Appellee,
v.
EDWARD BROWN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. George Z. Singal, U.S. District Judge]
Before
Thompson and Kayatta, Circuit Judges,
and Katzmann,* Judge.
Benjamin L. Falkner, with whom Krasnoo, Klehm & Falkner LLP
was on brief, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
John L. Farley, Acting United States Attorney, was on brief, for
appellee.
February 16, 2022
Of the United States Court of International Trade, sitting
by designation.
*
1a
Case: 20-1959
Document: 00117843242
Page: 2
Date Filed: 02/16/2022
Entry ID: 6477474
THOMPSON, Circuit Judge. Before us a second time, Edward
Brown, who has been in prison for the last thirteen years for tax
fraud and his role in a well-publicized armed standoff with the
U.S. Marshals Service, appeals from his lengthy, but shorter-thanoriginal, sentence of 300 months in prison.
Lodging claims of
both constitutional and sentencing error, he seeks to have his new
sentence tossed in exchange for a sentence of time served.
After
careful review, we disagree, and so affirm.
BACKGROUND
I.
The Crimes
The story of this case begins back in 2006.1
Then,
Edward Brown and his wife, Elaine Brown, were indicted by a federal
grand jury on charges related to their failure to pay taxes.2
They
went to trial, although Edward attended only a few days before he
decided to stop showing up.
Their defense was that the government
had no legal authority to collect the taxes.
convicted both Edward and Elaine.
sentencing.
Eventually, a jury
But neither showed up for
They were each sentenced, in absentia, to 63 months
In considering the defendant's challenge to his sentence,
we take the facts from the trial record, the undisputed portions
of the presentence investigation report, and the transcript of the
sentencing hearing. See United States v. Rivera-Morales, 961 F.3d
1, 5 (1st Cir. 2020).
1
Because these individuals both play a key role in this case
and share the same surname, we will refer to them by their given
names and mean no disrespect in doing so.
2
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in prison.
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Neither Edward nor Elaine surrendered to the federal
authorities to serve their sentences.
It is that failure to surrender which leads us to the
crimes of conviction at issue in Edward's appeal today.3
for the Browns' arrest issued.
Warrants
Meanwhile, Edward was holed up at
his New Hampshire residence along with Elaine.
Though the U.S.
Marshals Service knew where the Browns were, getting them into
custody proved less than straightforward (to say the least).
For
about
the
eight
months,
Edward
made
violent
threats
toward
government officials attempting to arrest them, such as (as one of
the Marshals recalled at trial):
"If anything happens to my wife
or I, then everybody associated with this case will get theirs."
As another Marshal recalled at trial, Edward said he thought the
police were afraid to arrest him and that, if the authorities
arrested him, "people are going to die.
die. . . .
public
It's going to be a war."
statements
about
their
The Marshal is going to
The Browns also made repeated
standoff,
welcoming
into
their
fortified home a number of supporters who agreed to help them out,
including Daniel Riley, Jason Gerhard, Cirino Gonzalez, and Robert
Wolffe.4
If the reader thirsts for a more detailed account of the
events, we've detailed them twice before. See United States v.
Brown, 669 F.3d 10, 14–17 (1st Cir. 2012); United States v.
Gerhard, 615 F.3d 7, 12–18 (1st Cir. 2010).
3
All four of these helpers were later arrested and charged.
Three went to trial, were convicted, and received considerable
4
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Realizing that a standard arrest wouldn't do for this
high-risk circumstance, the Marshals began to develop plans to try
to safely arrest the Browns.
In the first attempt, officers tried
to move clandestinely onto the property and arrest Edward on his
routine of grabbing the mail at the end of his driveway.
That
attempt, though, failed when Riley, who was out walking a dog,
encountered hidden officers.
Riley was taken into custody, and
when Edward heard the commotion, he was seen ascending a tower on
top of his home and brandishing a .50-caliber rifle, pointing it
toward the driveway.
After that failed attempt, the Marshals backed off for
a few months while they hatched a new plan.
In the meantime, they
began to round up some of the Browns' soon-to-be convicted coconspirators, who Marshals, for strategic reasons, had up to that
point allowed to enter and exit the compound.
And those arrests
yielded a wealth of information about what the Marshals were facing
inside the Brown enclave.
For example, Riley told the Marshals that he purchased
twelve pounds of Tannerite, an explosive amalgam, at Edward's
request.
Gonzalez, Riley relayed, had brought firearms to the
sentences of imprisonment: 432 months for Riley, 240 months for
Gerhard, and 96 months for Gonzalez.
Gerhard, 615 F.3d at 12.
Wolffe was handed a 30-month sentence after pleading guilty.
Judgment, United States v. Wolffe, No. 07-cr-189-04 (D.N.H. Aug.
1, 2008), ECF No. 497.
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compound and had performed armed patrols around the property with
an assault rifle.
Riley also told the Marshals that numerous
handguns and rifles were stashed throughout strategic locations in
the house.
And he noted at least two black-powder explosive
devices were in the home, plus he believed there were ten-totwenty more of them in there.
While detained, Riley also admitted
to another inmate that he had assembled spring guns and placed
explosive containers on trees around the home.
Wolffe told the
Marshals about the cache of firearms in the home, and that Edward
and Riley had tested which firearms were best suited to make the
biggest explosions when fired at the Tannerite devices.
Flash forward to October 2007, and it was time for the
Marshals to test their newest game plan for seizing the Browns.
The new strategy began with undercover Marshals contacting the
Browns through a confidential informant. Along with the informant,
three undercover Marshals retrieved some property from Elaine's
dental office (which she had requested) and brought it to the
Browns at their compound.
After the delivery was complete, Edward
brought beer onto the porch for the four retrievers and for a
fourth undercover Marshal who had since arrived.
agreed-upon
time-to-make-a-move
codeword
the
After using the
Marshals
had
established, the undercover officers grabbed Edward, tasered him,
and took him into custody.
Other Marshals seized Elaine, and
everyone walked away unscathed.
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After
property.
the
Page: 6
arrest,
Date Filed: 02/16/2022
authorities
searched
Entry ID: 6477474
the
Browns'
Numerous improvised explosive devices were scattered
thereabout, which experts from the Bureau of Alcohol, Tobacco,
Firearms and Explosives had to remove.
Officials also found trip
wires, shotgun shells from spring guns, and Tannerite bombs and
plastic bags containing propane cans nailed to trees around the
property.
Inside the house, officials recovered eighteen firearms
ranging from pistols to .50-caliber rifles.
They also turned up
approximately 60,000 rounds of live ammunition, including armorpiercing and incendiary rounds.
In a single closet in the Browns'
master bedroom, agents located twenty-two assembled and active
pipe
bombs.
Elsewhere
in
the
house,
they
found
nine
fully
assembled spring guns, including evidence that they at one point
had been mounted in the tree line.
Agents also recovered cans of
gun powder, some of which had nails taped to them.
And, if all of
that wasn't enough, even more explosive-making materials were
recovered in various spots in the home.
II.
The Resulting Proceedings
Following their capture, a federal grand jury indicted
Edward and Elaine, charging Edward on seven counts.
Count I
charged conspiracy to prevent officers of the United States from
discharging their duties, in violation of 18 U.S.C. § 372.
Count
II -- conspiracy to commit an offense against the United States,
in violation of 18 U.S.C. §§ 371 and 111(a) & (b).
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charged him with carrying and possessing a firearm in connection
with a crime of violence, in violation of 18 U.S.C. § 924(c)(1).
Count V -- being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1).
Count VII -- obstruction of justice, in
violation of 18 U.S.C § 1503. Count IX charged Edward with failing
to appear for his tax-fraud trial, in violation of 18 U.S.C.
§ 3146.
And Count X -- failing to appear for sentencing in the
tax-fraud case, in violation of 18 U.S.C. § 3146.5
Edward and
Elaine went to trial, and they both were convicted on all counts.
Following on from his occasional outbursts at the trial,
Edward
was
rather
combative
at
his
accompanying competency proceeding.
original
sentencing
and
Throughout the proceedings,
he often lodged his own objections, even though he was represented
by counsel.
testimony
He butted in to argue about a competency witness's
while
he
was
still
on
the
stand,
interrupted
the
government's counsel (one time, for example, to call him a liar),
and
interrupted
"beautiful."
the
judge
to
argue
with
him
and
call
him
At one point when he was being removed from the
courtroom, Edward accused the judge of being a "criminal" and a
"communist."
After being returned to the courtroom following a
"timeout," Edward even told the judge that the district court
Counts IV, VI, and VIII charged only Elaine, but the parties
often describe the counts as they are numerated in the indictment,
so we will follow the same trend.
5
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readying to sentence him was "not a court." After Edward exercised
his allocution rights, the judge proceeded to explain the sentence
he imposed.
But interjecting himself during that process, Edward
demanded to be taken out of the courtroom again, as in his telling,
he had "had enough of this trash."
The court obliged his request.
Speaking of his allocution, Edward went on an extended
rant about what he sees as a crisis of our country. Edward revealed
to the court that he is a member of a group called the United
States
Constitution
Constitution
and
Rangers,
the
people
whose
of
goal
the
is
United
to
"defend[]
States
the
Republic."
According to Edward, one core principle of the Rangers' philosophy
is that its members "will ignore . . . any laws or orders that
violate" certain constitutions and their Bill of Rights.
And he
openly questioned the authority of the federal laws, suggesting
that
the
United
States
replaced in 1879.
intended
to
"expose
Constitution
from
1789
was
illegally
Edward further informed the court that he
a
[criminal]
cell
in
the
government."
Addressing his crimes, Edward told the court that he "could have
killed all five of those agents [who came to arrest him] easily
and lawfully."
In
handing
down
explained its rationale.
the
sentence,
the
district
court
Noting that Edward had "engaged in a
long period of lawlessness and endangered multiple government
officials in the discharge of their duties," the court found Edward
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(who, recall, was no longer in the courtroom at his own request)
to be "entirely unrepentant" and concluded Edward "would have
killed
multiple
effectively."
marshals
if
they
hadn't
dealt
with
him
so
The court went on to note how Edward had recruited
others into his beliefs, all of whom ended up with lengthy prison
sentences.
And the court explained that it was imposing a "severe
punishment . . . to promote respect for the law and to deter others
who attempted to engage in this type of conduct."
Ultimately, and considering the severity of Edward's
conduct, the judge handed down a sentence as follows:
72 months
total on Counts I, V, and VII; 60 months on Count II, to run
concurrently with the sentence on Counts I, V, and VII; 12 months
total on Counts IX and X;6 and then the mandatory-minimum 360
months on Count III, the charge under § 924(c), to be served
consecutively to the other sentences.
As the court tallied that
up, it meant a "total term of 444 months['] imprisonment."
And
that "term of imprisonment" was to run consecutively to the term
The transcript of the sentence orally announced by the court
reflects that the 12-month sentence on Counts IX and X ran
concurrently to the sentences on Counts I, II, V, and VII. The
written judgment, though, specified that the 12-month sentence ran
consecutively -- not concurrently -- to those other counts. More
on that later.
6
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that Edward was already serving for the tax-fraud convictions,
which had begun running on October 4, 2007.7
Flash forward to 2016, when Edward filed his second
motion to vacate, set aside, or correct his sentence under 28
U.S.C. § 2255.
We granted him leave (and his wife, too) in 2019
to file this second or successive § 2255 motion, see 28 U.S.C.
§ 2255(h), attacking his § 924(c) conviction based on Johnson v.
United States, 576 U.S. 591 (2015).
The district court granted
Edward's motion with the government's assent, vacated the § 924(c)
count based on United States v. Davis, 139 S. Ct. 2319 (2019), and
ordered resentencing.8
Before
resentencing,
Dr.
Jill
Durand,
a
licensed
psychologist retained by Edward, evaluated him and issued a report.
In it, Dr. Durand described Edward as "self-confident, grandiose
and strong in his convictions."
Recounting her interviews with
Edward, she noted that he "maintained and expressed his unchanging
beliefs regarding the US Government, distrust of the Court system,
The court also sentenced Edward to three years of supervised
release.
7
In Davis, the Supreme Court held that the residual clause
of 18 U.S.C. § 924(c) (i.e., the clause defining a "crime of
violence" as felonies "that by their nature, involve a substantial
risk that physical force against the person or property of another
may be used in the course of committing the offense," 139 S. Ct.
at 2323–24 (cleaned up)) is unconstitutionally vague, id. at 2336.
Johnson found a similarly worded provision of the Armed Career
Criminal Act unconstitutionally vague. 576 U.S. at 606.
8
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and his position that he did not have a proper hearing in Court."
Edward also described the court as "unethical and immoral" and
part
of
a
criminal
justice
system
that
is
a
"racketeering
organization with instructions from a European cartel," and stated
that he views judges as unconstitutional.
Regarding his crimes,
he maintained that he "didn't do anything wrong" concerning his
failure to pay his taxes.
Edward, she noted, "believes that he
has been the victim of an unjust system and that his actions were
warranted, justified or not unlawful."
Nonetheless, Dr. Durand
opined that there is "little concern" that Edward would pose a
danger
to
others
if
released.
Still,
she
cautioned
of
the
possibility that Edward would ignore or evade a probation officer's
attempts to supervise him upon his release from prison.
Edward,
resentenced.
represented
by
counsel,
objected
to
being
He argued that it would violate the Double Jeopardy
and Due Process Clauses of the Constitution to sentence him again,
as, according to his math, he had already served the complete time
he was sentenced on all but the § 924(c) sentence, which was
vacated.
We'll get into that more later, but the district judge
rejected his argument.
And putting that argument aside, Edward
asked in the alternative that he be sentenced to time served.
Conversely, the government sought a Guidelines-range sentence of
between 360 months to life.
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At the resentencing hearing, Edward, at the court's
invitation, allocuted anew, with a couple of his recitals invoking
a sense of déjà vu.
He said he was investigating a "criminal
element within the government" and that the U.S. government remains
beholden to a European cartel.
He also debuted a new claim -- the
Department of Justice is a "terrorist organization."
When probed
about the circumstances of his standoff with the Marshals, he told
the court that he was "going to defend [him]self," including with
his .50-caliber rifle if he had to.
When asked directly whether
he thought he was violating the law with the months-long standoff,
he responded "No."
Nor did he violate the law when he failed to
pay his taxes, proclaiming those laws invalid.
And, falling back
on an old refrain, he questioned the authority of the judge to
pass sentence on him under the criminal laws.
Notwithstanding his views about the validity of the
proceedings, Edward disavowed any intent to hurt anyone in the
standoff and told the judge that he did not want or need his
firearms anymore.
And though he denied the validity of the laws,
he conceded that he had no choice but to follow them and committed
to the court to doing so.
In the end, the district judge imposed a 300-month
sentence -- that is, 144 months below the prior sentence and 60
months below the Guidelines range.
The court explained that
sentence was warranted due to the nature and seriousness of the
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crime, the characteristics of Edward, the need to deter Edward and
others from committing the same crime, the need for just punishment
and to promote respect for the law, and the need to protect the
public from any further crimes committed by Edward.
Specifically,
the judge focused on the fact that Edward not only harbors his
beliefs about the validity of the government and the laws, but he
went further, acting on those avowals and putting others in danger.
Edward, he observed, was the ringleader of the standoff, recruiting
others and "brainwash[ing]" one, leading them to incur lengthy
prison sentences.
Finally, the judge emphasized that Edward did
not appear to show remorse for his actions.
Rather, he continues
to believe that he never did anything wrong.
Standing at 78 years old at the time of resentencing,
Edward objected to the substantive reasonableness of his sentence.
His timely appeal followed.
DISCUSSION
I.
The Constitutional Challenges
Edward first raises two constitutional objections to his
sentence.
He claims that his new sentence violated the Double
Jeopardy and Due Process Clauses of the Constitution because he
had already served the entirety of all sentences imposed for all
counts except for the final sentence on the § 924(c) count.
And,
because the § 924(c) conviction was vacated, he says that the
district court could not have resentenced him on the counts as to
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which he had already served his sentences.
We review these
preserved issues of constitutional law de novo.
United States v.
Szpyt, 785 F.3d 31, 36 (1st Cir. 2015).
A.
Double Jeopardy
The
Double
Jeopardy
Clause
of
the
Fifth
Amendment
provides that "[n]o person shall . . . be subject for the same
offence to be twice put in jeopardy of life or limb."
amend. V.
U.S. Const.,
The guarantee against double jeopardy "has been said to
consist of three separate constitutional protections."
United
States v. DiFrancesco, 449 U.S. 117, 129 (1980) (quoting North
Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other
grounds by Alabama v. Smith, 490 U.S. 794 (1989)).
First, the
clause "protects against a second prosecution for the same offense
after acquittal."
against
a
conviction."
second
Id.
Pearce, 395 U.S. at 717.
prosecution
for
the
Second, it "protects
same
offense
after
And third, as particularly relevant here, "it
protects against multiple punishments for the same offense."
Id.
The Supreme Court has limited the application of doublejeopardy principles in some respects, concluding, for example,
that a successful appeal does not, in general, bar a defendant
from being retried, Bullington v. Missouri, 451 U.S. 430, 438
(1981), or from receiving a harsher sentence, Pearce, 395 U.S. at
723.
Particularly with sentencing, the Court has made clear that
criminal sentences do not carry the same constitutional finality
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and conclusiveness as attaches with a jury's verdict of acquittal.
DiFrancesco, 449 U.S. at 132-33.
Thus, the touchstone for the
double-jeopardy analysis is whether the defendant had a legitimate
"expectation of finality in the original sentence."
See id. at
139; see also Evans v. Michigan, 568 U.S. 313, 319-20 (2013)
(explaining that double jeopardy does not preclude retrial after
a properly granted mistrial because "no expectation of finality
attaches
to
a
properly
granted
mistrial");
United
States
v.
Pimienta-Redondo, 874 F.2d 9, 16 (1st Cir. 1989) (en banc).
In conducting that analysis, we remain mindful that
generally, as the Supreme Court has noted, "[a] criminal sentence
is a package of sanctions that the district court utilizes to
effectuate its sentencing intent."
Pepper v. United States, 562
U.S. 476, 507 (2011) (quoting United States v. Stinson, 97 F.3d
466, 469 (11th Cir. 1996) (per curiam)).
Indeed, the sentencing
factors of 18 U.S.C. § 3553(a) "are used to set both the length of
separate prison terms and an aggregate prison term comprising
separate sentences for multiple counts of conviction."
United States, 137 S. Ct. 1170, 1175 (2017).
Dean v.
Thus, the so-called
sentencing-package doctrine comes into the fold in cases that
"typically involve multicount indictments and a successful attack
by a defendant on some but not all of the counts of conviction."
Greenlaw v. United States, 554 U.S. 237, 253 (2008).
And in those
circumstances, "[b]ecause a district court's 'original sentencing
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intent may be undermined by altering one portion of the calculus,'"
Pepper, 562 U.S. at 507 (quoting United States v. White, 406 F.3d
827, 832 (7th Cir. 2005)), appeals courts "may vacate the entire
sentence on all counts so that, on remand, the trial court can
reconfigure the sentencing plan to assure that it remains adequate
to satisfy the sentencing factors" of § 3553(a), Greenlaw, 554
U.S. at 253.
Applying that doctrine, we have held that "where the
Guidelines contemplate an interdependent relationship between the
sentence for the vacated conviction and the sentence for the
remaining convictions -- a sentencing package -- a district court
may, on a petition under 28 U.S.C. § 2255, resentence on the
remaining convictions."
United States v. Rodriguez, 112 F.3d 26,
30-31 (1st Cir. 1997) (footnote omitted). We, as have our judicial
superiors, have recognized that "when a defendant is found guilty
on a multicount indictment, there is a strong likelihood that the
district court will craft a disposition in which the sentences on
the various counts form part of an overall plan."
Redondo, 874 F.2d at 14.
Pimienta-
And, "[w]hen the conviction on one or
more of the component counts is vacated, common sense dictates
that the judge should be free to review the efficacy of what
remains in light of the original plan, and to reconstruct the
sentencing
architecture
upon
remand,
within
applicable
constitutional and statutory limits, if that appears necessary in
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order to ensure that the punishment still fits both crime and
criminal."
Id.; see United States v. García-Ortiz, 657 F.3d 25,
31 (1st Cir. 2011) ("When a defendant successfully challenges one
of several interdependent sentences, the proper course often is to
remand for resentencing on the other (non-vacated) counts.").
Further, we have previously concluded that a district
court does not offend double jeopardy when it resentences, in
forming a sentencing package anew, on counts surviving appeal or
a § 2255 petition.
Pimienta-Redondo,
See Pimienta-Redondo, 874 F.2d at 16.
we
faced
two
defendants'
In
double-jeopardy
challenge to their resentencing after one of their two counts of
conviction was vacated.
Id.
There, the defendants were initially
sentenced to consecutive terms of imprisonment on each of the two
counts of conviction.
Id. at 11.
On appeal, we affirmed one
count, vacated the other, and remanded.
Id. at 11–12.
On remand,
the district court gave each defendant the same aggregate sentence
-- just via a longer sentence on a single count.
On
appeal
again
from
resentencing,
Id. at 12.
the
defendants
contended that increasing their sentence on the surviving count of
conviction violated their double-jeopardy protections.
Id. at 16.
Relying on the sentencing-package doctrine, we rejected their
argument and concluded there is no double-jeopardy violation in
the district court's resentencing a defendant to a longer sentence
on counts unaffected by appeal.
Id.
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"[w]here the defendant challenges one of several interdependent
sentences
(or
underlying
convictions)
he
has,
in
effect,
challenged the entire sentencing plan." Id. (quoting United States
v. Shue, 825 F.2d 1111, 1115 (7th Cir. 1987)).
Thus, we said, a
defendant "can have no legitimate expectation of finality in any
discrete portion of the sentencing package after a partially
successful
appeal,"
and
thus
no
double-jeopardy
(quoting Shue, 825 F.2d at 1115).
claim.
Id.
Instead, the trial court may
resentence a defendant on the remaining counts "to effectuate [its]
original sentencing intentions."
Id.
Edward says Pimienta-Redondo actually commands that his
resentencing violated the Double Jeopardy Clause.
our
statement
there
that
a
"defendant
'has
He clings to
no
legitimate
expectation of finality in the original sentence[s] when he has
placed those sentences in issue by direct appeal and has not
completed
serving
a
valid
sentence.'"
Id.
(emphasis
added)
(alteration in original) (quoting United States v. Andersson, 813
F.2d 1450, 1461 (9th Cir. 1987)).
According to Edward then, he,
unlike the defendants in Pimienta-Redondo, has completed the valid
sentences on all but the now-vacated § 924(c) conviction.
Indeed,
no
(whether
matter
how
you
calculate
the
original
sentence
accepting that the sentence on Counts IX and X ran concurrently or
consecutively to the sentences on Counts I, II, V, and VII), it is
undisputed that Edward had served at least 84 months on the counts
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of conviction in this case by the time he was sentenced.9
Thus,
Edward says, he completed the entirety of the constituent sentences
on Counts I, II, V, VII, IX, and X -- leaving only the 360-month
consecutive
sentence
on
the
§ 924(c)
conviction
remaining
to
serve.
The
problem
with
that
distinction,
though,
is
that
Pimienta-Redondo does not clarify what the "valid sentence" to be
served is:
a string of constituent sentences or the aggregate
sentencing package.
And on top of that, Pimienta-Redondo itself
recognized explicitly that when a vacated count tears apart the
overall sentencing plan, "common sense dictates that the judge
should be free to review the efficacy of what remains in light of
the original plan, and to reconstruct the sentencing architecture
upon remand."
874 F.3d at 14.
Pimienta-Redondo thus does not
control the outcome here.
And when we look to our sister circuits around the
country, they are nearly uniform in their conclusion that a
defendant has no legitimate expectation of finality for double-
Recall that the court's oral sentence stated that 12-month
sentence on Counts IX and X ran concurrently to the sentences on
Counts I, II, V, and VII. The written judgment, though, specified
that the 12-month sentence ran consecutively -- not concurrently
-- to those other counts. As stated, the discrepancy is irrelevant
here because even if the sentence on Counts IX and X did run
consecutively, the total on Counts I, II, V, VII, IX, and X would
be 84 months. And it is undisputed that Edward had served at least
that amount before resentencing.
9
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jeopardy
purposes
even
Page: 20
where
she
Date Filed: 02/16/2022
served
the
constituent sentence in a sentencing package.
Entry ID: 6477474
entirety
of
a
See United States
v. Triestman, 178 F.3d 624, 631–32 (2d Cir. 1999) (Sotomayor, J.);
United States v. Smith, 115 F.3d 241, 247 (4th Cir. 1997); United
States
v.
Benbrook,
119
F.3d
338,
340–41
(5th
Cir.
1997);
Pasquarille v. United States, 130 F.3d 1220, 1222–23 (6th Cir.
1997); United States v. Smith, 103 F.3d 531, 535 (7th Cir. 1996);
United States v. Alton, 120 F.3d 114, 116 (8th Cir. 1997); United
States v. McClain, 133 F.3d 1191, 1192–94 (9th Cir. 1998); United
States v. Easterling, 157 F.3d 1220, 1223–24 (10th Cir. 1998);
United States v. Townsend, 178 F.3d 558, 569-70 (D.C. Cir. 1999).
In fact, the only circuit Edward points to that in theory
has
accepted
his
argument
distinguished
its
prior
--
the
holding
Fourth
and
Circuit
reached
--
quickly
the
opposite
conclusion on the same issue less than a year later.
Compare
United States v. Silvers, 90 F.3d 95, 101 (4th Cir. 1996) ("As the
government concedes, reimposition of sentence on counts upon which
Silvers had fully satisfied his sentence violated the Double
Jeopardy Clause."), with Smith, 115 F.3d at 247 (distinguishing
Silvers
where
the
defendant
aggregate sentence).
had
not
"fully
discharged"
his
And subsequent panels of the Fourth Circuit
have considered themselves bound by Smith -- not Silvers.
See
United States v. Douthit, 133 F.3d 918, at *1 n.* (4th Cir. 1998)
(unpublished
table
decision)
("[B]ecause
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Smith
recognized
the
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apparent conflict and distinguished Silvers, we are bound as a
panel of the court by its holding." (citation omitted)); United
States
v.
Butler,
122
F.3d
1063,
at
*1
n.*
(4th
Cir.
1997)
(unpublished table decision) (same).
Our sister circuits have reasoned that if a sentence is
properly viewed as a package -- that is, "one unified term of
imprisonment," Townsend, 178 F.3d at 570 (quoting Easterling, 157
F.3d
at
1224)
--
then
a
defendant
cannot
have
a
legitimate
expectation in finality where she "ha[s] not satisfied [her]
sentence on the remaining counts in any meaningful sense," id.;
see Pasquarille, 130 F.3d at 1223–24 ("Because the defendant has
no legitimate expectation of finality in any discrete part of an
interdependent sentence after a partially successful appeal or
collateral attack, there is no double jeopardy bar to enhancing an
unchallenged part of an interdependent sentence to fulfill the
court's original intent." (quoting United States v. Harrison, 113
F.3d 135, 138 (8th Cir. 1997))).
Thus, "the legal interdependence
of sentences under the Guidelines permits a court to reconsider
related
sentences
in
the
context
of
a
collateral
attack."
Triestman, 178 F.3d at 631 (cleaned up) (quoting United States v.
Mata, 133 F.3d 200, 202 (2d Cir. 1998)).
That
"receive[]
is
so
separate
because,
and
in
general,
distinct
defendants
sentences"
for
do
not
related
convictions -- they "receive[] one aggregate sentence for th[e]
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interdependent offenses."
Benbrook, 119 F.3d at 340.
Thus, by
attacking
defendant
one
"necessarily
portion
of
a
sentencing
attack[s]
the
whole."
Id.
package,
a
Defendants
"cannot
selectively craft the manner in which the court corrects th[e]
judgment" to dismember the sentencing package favorably to them.
Alton, 120 F.3d at 116 (quoting Gardiner v. United States, 114
F.3d 734, 736 (8th Cir. 1997)).
Nor does resentencing in any real
way disadvantage the defendant:
Rather than enacting a double
punishment for the non-§ 924(c) counts, a full resentencing to
restructure the original sentencing package does "nothing more
than put [the defendant] in the same position [she] would have
occupied had [she] not been convicted under [§] 924(c) in the first
place."
Triestman, 178 F.3d at 631 (quoting Mata, 133 F.3d at
202).10
Trying to dodge the onslaught of circuits rejecting his
theory, Edward claims his view is commanded by Supreme Court
precedent, citing to Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873).
There, the defendant was convicted on one count and erroneously
sentenced to both one year in prison and a fine, though the statute
only authorized either punishment, not both.
Id. at 175.
The
defendant paid his fine and then began to serve the sentence for
five days. Id. Realizing the error, the court tried to resentence
the defendant to one year in prison, this time without a fine.
The Supreme Court reversed, observing that the new sentence would
have the prisoner pay the fine and be imprisoned for a year and
five days.
Id.
The Court said that by the defendant's "fully
suffer[ing] one of the alternative punishments . . . the power of
the court to punish further was gone." Id. at 176.
10
Yet the Supreme Court has since cabined Lange's reach only to
"the uncontested proposition that the Double Jeopardy Clause
prohibits punishment in excess of that authorized by the
legislature," and clarified that it does not stand "for the broader
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So it follows, we echo our sister circuits in concluding
that
"[w]hen
sentencing
a
defendant
package
elects
whose
to
challenge
constituent
one
parts
part
of
a
are
truly
interdependent," reconstituting "the entire sentencing package
does not constitute a double jeopardy violation."
Id. (internal
quotation marks omitted) (quoting Mata, 133 F.3d at 202); see also
United States v. Cain, 837 F. App'x 853, 856 (2d Cir. 2021)
(continuing to apply this rule post-Davis).
Edward's double-jeopardy claim thus rises and falls with
whether his original sentence is properly considered a package.
We have acknowledged that a total aggregate sentence on multiple
counts does not always mean there is a true sentencing package.
See Rodriguez, 112 F.3d at 30 n.1.
To determine whether a true
sentencing package exists, we look to whether "the guidelines
establish an interdependent relationship between the sentence
vacated or subject to amendment and the sentence for the remaining
convictions."
United States v. Jordan, 162 F.3d 1, 6 (1st Cir.
rule suggested by its dictum," referring specifically to the quoted
language Edward harps on. Jones v. Thomas, 491 U.S. 376, 382-83
(1989).
Moreover, even accepting Lange's dictum, it does not
change the analysis here because the "punishment" to be "fully
suffered" by Edward is not any single sentence (as it was in
Lange), but the total sentencing package. See Townsend, 178 F.3d
at 570 (recognizing that distinction). And that's particularly so
where, as here, some of the defendant's original constituent
sentences were reduced in light of the now-vacated portion of the
package.
The defendant can have no legitimate expectation of
finality in those constituent sentences when she seeks to upset
other portions of the package.
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1998). And we search for whether "the same basic course of conduct
underlies both the vacated count and the count on which the
conviction is affirmed."
Rodriguez, 112 F.3d at 30; see also
United States v. Lassiter, 1 F.4th 25, 30 (D.C. Cir. 2021) (noting
that "[o]ne indicator of the sentencing judge's intent [regarding
a sentencing package] is the substantive relationship between the
various counts").
Applying this framework, we are quite confident that
Edward's original 444-month sentence was one package.
all
the
counts
of
conviction
arise
out
of
the
For one,
same
events:
Edward's failure to appear for his trial and sentencing in the
tax-fraud case, his subsequent walling off in his booby-trapped
New Hampshire property with a host of firearms and explosives, and
his threats against the law-enforcement agents trying to wrangle
him out of his fortress to serve his sentence on the tax-fraud
counts.
See also Townsend, 178 F.3d at 567 ("Sentences which
include § 924(c) counts are particularly well suited to be treated
as a package.").
For another, it is quite clear that the mandatoryminimum sentence on the § 924(c) count substantially influenced
the judge's initial sentence on the remaining counts.
Under the
2008
original
Sentencing
Guidelines
in
effect
at
Edward's
sentencing, he faced an effective Guidelines range of 570 to 622
months.
See U.S.S.G. §§ 3D1.1(a), 3D1.1(b)(1), 3D1.3(a), 5G1.2(a)
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(2008) (providing that the offense level is determined by taking
the highest offense level of the counts in the group of charges,
and
then
adding
sentence).
it
consecutively
to
the
mandatory-minimum
Edward's sentence was substantially lower than the
government's suggested Guidelines sentence of 570 to 622 months.
And although Edward received statutory-maximum sentences on Counts
I and II, see 18 U.S.C. § 372; id. § 371, he received sentences
well
below
the
maximums
on
the
remaining
counts,
see
id.
§ 924(a)(2) (maximum ten years' imprisonment for Count V); id.
§ 1503(b)(3)
(same
for
Count
VII);
id.
§ 3146(b)(1)(A)(ii)
(maximum five years' imprisonment for Counts IX and X).
Had the
district
on
court
thought
the
mandatory-minimum
sentence
the
§ 924(c) count too harsh, it could have always departed even lower
than it did and sentenced Edward to a single day on the remaining
counts.
See Dean, 137 S. Ct. at 1177; United States v. Sanders,
197 F.3d 568, 573 (1st Cir. 1999) (noting that a mandatory-minimum
consecutive sentence does not break apart a sentencing package;
rather, the mandatory minimum requires the sentencing court to
"consider[]
how
far
it
want[s]
to
go
above"
that
mandatory
minimum).
The court's decision in the first go-round to sentence
Edward
a
to
prison
term
at
least
126
months
less
than
the
Guidelines range -- even when the judge emphasized that Edward was
"entirely unrepentant," that his actions were "reprehensible," and
that the judge "had no doubt in [his] mind that Mr. Brown would
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have killed multiple marshals" -- further reveals that the initial
sentence operates as one package.
See Lassiter, 1 F.4th at 31
(noting that it is "especially" appropriate to presume a sentencing
package "when the judge imposed a below-guidelines sentence for
the violent felony").
On top of that, the Guidelines range Edward faced on the
non-§ 924(c) counts was lower than it would have been had he not
been charged under § 924(c).
The § 924(c) conviction helped keep
certain Specific Offense Characteristic enhancements off the non§ 924(c) charges.
See U.S.S.G. § 2k2.4 app. note 4 (2008).
And
that further bespeaks the interrelatedness of the sentences in the
package.
See Rodriguez, 112 F.3d at 28, 30-31 (noting that
sentences were interrelated where the § 924(c) count prohibited
adding certain enhancements to other counts).
To cinch things, Edward has made no attempt to rebut the
interrelatedness of the various sentences making up his original
444-month total term of imprisonment.
Rather, he put all his eggs
in
that
the
basket
of
the
contention
the
completion
of
a
constituent sentence gave him a legitimate expectation of finality
in the original sentence on that particular count, and thus "the
'sentencing package doctrine' does not apply to him."
Concluding,
as we do, that a defendant has no legitimate expectation of
finality until she has served the entire package of interrelated
sentences, his argument thus founders.
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Edward's rights under the
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Double Jeopardy Clause were not violated here, particularly where
he received a new aggregate sentence substantially below the
aggregate sentence initially imposed:
300 months compared to the
original 444. See Triestman, 178 F.3d at 632 (noting the defendant
"could not legitimately have expected a better result" where he
received
a
"significantly
reduced"
aggregate
sentence
on
resentencing).
B.
Due Process
Given that conclusion, Edward's due-process claim fares
no better.
Edward contends that his due-process rights were
violated because he "had a right to rely on the validity of the
original sentences and to expect that when he had served his time
behind bars, those sentences were complete."
Notwithstanding the
fact that his formulation of this claim is nearly identical to how
he portrayed his double-jeopardy claim, Edward contends the dueprocess claim is entirely separate.
But see United States v.
Davis, 112 F.3d 118, 123-24 (3d Cir. 1997) (characterizing the
due-process inquiry, too, as whether the defendant had a legitimate
expectation of finality).
To make out his claim, Edward points to our discussion
in Breest v. Helgemoe, 579 F.2d 95 (1st Cir. 1978).
addressing
a
due-process
challenge
to
a
There,
resentencing,
we
acknowledged the "real and psychologically critical importance" a
prospective date of release may play for a defendant.
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Thus, we said that "[a]fter a substantial period of time . . . ,
it might be fundamentally unfair, and thus violative of due process
for a court to alter even an illegal sentence in a way which
frustrates a prisoner's expectations by postponing his parole
eligibility or release date far beyond that originally set."
Id.;
see also Rodriguez, 112 F.3d at 31 & n.4 (acknowledging there could
be due-process concerns with resentencing a defendant after, for
example, long delay or actual release from custody).
And we've
since clarified:
[T]here may be limits on the right to correct
an erroneous sentence in cases "with extreme
facts: a long delay, actual release of the
defendant from custody based on the shorter
sentence, singling out of the defendant for a
belated increase apparently because of his
commission of another offense for which parole
revocation would have been available, and
other troubling characteristics."
Rodriguez, 112 F.3d at 31 n.4 (quoting United States v. Goldman,
41 F.3d 785, 789 (1st Cir. 1994)).
Edward reminds us that he had served over seven years of
his
standoff-related
convictions
in
prison
at
the
time
of
resentencing (and about thirteen years in total including the taxfraud convictions).
Thus, his argument goes, he has served a
"substantial period of time" -- including actually "complet[ing]
sentences of incarceration" -- resulting in his having a right to
rely on the original length of the sentences on the non-§ 924(c)
counts.
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The problem for Edward, though, is that his argument
presumes that he can have a legitimate right to rely on the length
of constituent sentences in a sentencing package -- which we just
rejected in his double-jeopardy argument.
And, to boot, he cannot
identify any other court that has accepted his argument.
Instead,
the courts of appeals have rejected his argument in short order.
See, e.g., Townsend, 178 F.3d at 570 (rejecting due-process claim
"[b]ecause
[the
defendant]
could
not
expect
finality
of
his
sentence on some counts even while he challenged others, [and thus]
resentencing was not fundamentally unfair"); Easterling, 157 F.3d
at 1223–24 (rejecting due-process argument for the same reason as
the
double-jeopardy
claim).
Indeed,
the
Fourth
Circuit
has
described this argument as "merely a rehash" of the double-jeopardy
argument and concluded that, since the defendant did not receive
separate sentences but rather one package, he could have no right
to rely on those sentences where he challenged one piece of the
sentencing puzzle.
Smith, 115 F.3d at 248.
We similarly reject Edward's contention that he had a
right to rely on the length of his non-§ 924(c) sentences that
built part of his sentencing package.
Since Edward was sentenced
to "a total term of 444 months['] imprisonment," he could have no
reliance interest in the length of those constituent sentences.
We think that particularly so where, as here, Edward had served
just
about
a
fifth
of
that
total
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the
time
of
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resentencing.
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See Rodriguez, 112 F.3d at 27–28, 31 (finding no
fundamental unfairness where the defendant had served more than
three years of an about 10-year sentence and he received a 45month reduction at resentencing).
And it was Edward -- not the
government -- who petitioned to have his § 924(c) conviction
vacated.
months
What's more, in the end, Edward's new sentence was 144
shorter
than
his
original
sentence.11
Thus,
Edward
effectively received the same sentence as he would have had the
§ 924(c)
count
never
been
charged
in
the
first
place.
See
Pasquarille, 130 F.3d at 1223 (finding no due-process violation
where "the defendant's total sentence ha[d] been reduced and he
was
resentenced
according
to
the
court's
original
sentencing
plan," thus "put[ting] him back in the position he would have
faced"
without
the
§ 924(c)
conviction).
That
was
not
fundamentally unfair.
II.
Sentencing Reasonableness
Constitutional concerns quenched, we turn to review the
sentence's reasonableness.
bifurcated inquiry.
55
(1st
Cir.
To do so, we engage in our familiar
United States v. Maldonado-Peña, 4 F.4th 1,
2021).
We
start
reasonableness of the sentence.
Id.
by
checking
the
procedural
After we do so, we then turn
We acknowledge that, even with this reduced sentence,
Edward will be 91 years old by the time he is slated for release.
11
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to evaluate a defendant's arguments that his sentence is also
substantively unreasonable.
A.
Id.
Procedural Reasonableness
So
challenge.
we
begin
with
Edward's
procedural-reasonableness
"A sentence is procedurally unreasonable when the
district court commits a procedural error such as 'failing to
calculate
(or
improperly
calculating)
the
Guidelines
range,
treating the Guidelines as mandatory, failing to consider the
§ 3553(a) 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.'"
United States v. Pupo, 995 F.3d 23, 28 (1st Cir. 2021)
(quoting United States v. Díaz-Rivera, 957 F.3d 20, 25 (1st Cir.
2020)).
In
reasonableness,
assessing
we
apply
preserved
a
claims
"multifaceted
of
procedural
abuse-of-discretion
standard whereby we afford de novo review to the sentencing court's
interpretation
and
application
of
the
sentencing
guidelines,
examine the court's factfinding for clear error, and evaluate its
judgment calls for abuse of discretion."
Maldonado-Peña, 4 F.4th
at 55–56 (cleaned up) (quoting United States v. Arsenault, 833
F.3d 24, 28 (1st Cir. 2016)).
For judgment calls, we chalk the
district court's decision up to an abuse of discretion only when
we're "left with a definite conviction that 'no reasonable person
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could agree with the judge's decision.'"
Entry ID: 6477474
Id. (quoting United
States v. McCullock, 991 F.3d 313, 317 (1st Cir. 2021)).
If a
defendant fails to preserve his procedural-reasonableness claim,
though, we then apply the "quite formidable" plain-error standard.
McCullock, 991 F.3d at 317.
Edward
lodges
a
single
reasonableness of his sentence.
attack
on
the
procedural
He contends the district court
violated his First Amendment rights to maintain and express his
beliefs when it relied on those beliefs to increase Edward's
sentence.
Specifically, Edward takes issue with the district
court's emphasis of the fact that, even after his time already
served in prison, he continues to believe that the criminal laws
are not valid and denies any wrongdoing.
Edward's counsel argued to the district court that it
was inappropriate for the court to rely on Edward's beliefs in
fashioning a sentence.
Edward's counsel did not, however, lodge
any formal objection to the procedural reasonableness of the
sentence on that ground.12
Nonetheless, even assuming favorably
to Edward that he preserved his claim of procedural reasonableness,
We have also seemed to imply that this particular ground
of sentencing error is related to substantive -- not procedural -reasonableness. See United States v. Alvarez-Núñez, 828 F.3d 52,
55 (1st Cir. 2016); but see United States v. Williamson, 903 F.3d
124, 136 (D.C. Cir. 2018) (lumping this ground in as a procedural
error).
We assume without deciding that a sentencing judge's
improper reliance on a defendant's protected First Amendment
activity can make out a claim of procedural unreasonableness.
12
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his claim fails under even the more-defendant-friendly abuse-ofdiscretion framework.
In determining how best to fashion a criminal sentence,
"the sentencing authority has always been free to consider a wide
range of relevant material."
United States v. Alvarez-Núñez, 828
F.3d 52, 55 (1st Cir. 2016) (quoting Payne v. Tennessee, 501 U.S.
808, 820–21 (1991)).
This gives the sentencing judge room to
conduct "an inquiry broad in scope, largely unlimited either as to
the kind of information [it] may consider, or the source from which
it may come."
Id. (quoting United States v. Tucker, 404 U.S. 443,
446 (1972)).
There are limits to that general rule, though.
As
relevant here, one of those limits is that "a defendant's abstract
beliefs, however obnoxious to most people, may not be taken into
consideration by a sentencing judge."
U.S. 476, 485 (1993).
context is key.
Wisconsin v. Mitchell, 508
However, as with most legal propositions,
"[T]he Constitution does not erect a per se
barrier to the admission of evidence concerning one's beliefs and
associations
at
sentencing
simply
because
those
associations are protected by the First Amendment."
Delaware, 503 U.S. 159, 165 (1992).
beliefs
and
Dawson v.
Accordingly, though the
Supremes have found First Amendment error in a sentencing court's
review of merely "abstract beliefs," see Dawson, 503 U.S. at 167,
the Court has also readily permitted consideration of a defendant's
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beliefs when they are "relevant to the issues involved," id. at
164; see Alvarez-Núñez, 828 F.3d at 55 ("The upshot is that conduct
protected by the First Amendment may be considered in imposing
sentence only to the extent that it is relevant to the issues in
a sentencing proceeding.").
For example, the Court has found no
error where a sentencing judge considered "the elements of racial
hatred" in the defendant's crime as well as the defendant's "desire
to start a race war" when relevant to the sentencing metrics.
Barclay v. Florida, 463 U.S. 939, 949 (1983) (plurality opinion);
see id. at 970 & n.18 (Stevens, J., concurring in the judgment).
But it has assigned error to the consideration of a defendant's
membership in the Aryan Brotherhood when it had no relevance to
the crimes at issue.
Dawson, 503 U.S. at 166–67.
As we've explained, a defendant's beliefs may become
relevant at sentencing "in a multiplicity of ways."
Núñez,
828
F.3d
at
55-56.
Beliefs
and
Alvarez-
associations
"may
legitimately be used to rebut mitigating evidence proffered by the
defendant." Id. at 56. Protected conduct may also become relevant
to evaluate a defendant's remorse, likelihood of reoffending, or
the extent of punishment needed for deterrence.
Id. (collecting
cases); see United States v. Williamson, 903 F.3d 124, 136 (D.C.
Cir. 2018) (finding no First Amendment violation in considering
protected activity that bore on "the seriousness of [the] offense
and on the need to protect the public generally . . . from harm").
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Given that framework, Edward's claim readily fails.
Though Edward thinks the district court could not fashion a
sentence
relying
on
his
beliefs
about
the
authority
of
the
government or the criminal laws, those beliefs are highly relevant
to the § 3553(a) factors.
See Alvarez-Nunez, 828 F.3d at 55-56.
Regarding his crimes, Edward maintained that he "didn't do anything
wrong" concerning his failure to pay taxes, and he said that "the
law is wrong."
When asked directly whether he thought he was
violating the law with the months-long standoff, he said no.
told the judge that the laws are not valid.
He
He also questioned
the authority of the judge to pass sentence on him under the
criminal laws.
And Dr. Durand noted in her evaluation that Edward
"believes that he has been the victim of an unjust system and that
his actions were warranted, justified or not unlawful."
As
the
district
court
amply
statements go "beyond simply his beliefs."
explained,
Edward's
Rather, the judge saw
Edward's statements as "a recipe for trouble," suggesting that
Edward may be dangerous when released from prison.
Those beliefs
also, in the judge's view, reflected that Edward did not intend to
obey the law.
And, as the district judge put it, the problem is
not that Edward holds these abstract beliefs:
"The problem is
that he acts on his beliefs, and, by acting on his beliefs, he put
in danger multiple individuals."
And those concerns played into
the court's consideration of the relevant sentencing factors,
- 35 35a
Case: 20-1959
Document: 00117843242
Page: 36
Date Filed: 02/16/2022
Entry ID: 6477474
which it said included (among others) the need to promote respect
for the law, the need to deter Edward and others from committing
the same crimes, and the need to protect the public from further
crimes committed by Edward.
See 18 U.S.C. § 3553(a)(2).
We find no procedural error in the district court's
reliance
on
Edward's
beliefs
in
considering
these
sentencing
factors.
See, e.g., United States v. Schmidt, 930 F.3d 858, 868
(7th Cir. 2019) ("[T]he court properly considered Mr. Schmidt's
white supremacist ideas and hatred for the United States as
evidence that he presents a threat of future dangerousness to the
community." (cleaned up)); United States v. DeChristopher, 695
F.3d 1082, 1098 (10th Cir. 2012) ("Defendant's statements that he
would 'continue to fight' and his view that it was 'fine to break
the law' were highly relevant to the[] sentencing factors.");
United States v. Smith, 424 F.3d 992, 1016–17 (9th Cir. 2005) (no
error
in
including
considering
about
the
the
defendant's
district
court's
allocution
"lack
of
statements,
jurisdiction,"
because they were relevant to the defendant's remorse and threat
to the public on release); United States v. Simkanin, 420 F.3d
397, 417–18 (5th Cir. 2005) (finding no constitutional error where
the district court relied on the defendant's "specific beliefs
that the tax laws are invalid and do not require him to withhold
taxes or file returns . . . [because they] are directly related to
- 36 36a
Case: 20-1959
the
Document: 00117843242
crimes
in
Page: 37
question
and
Date Filed: 02/16/2022
demonstrate
a
Entry ID: 6477474
likelihood
of
recidivism").
Edward further contends that the district court erred in
relying on these personal, strongly held beliefs because he, at
other points, appeared to show that there should be no concern
that he would follow the law upon release.
For example, Edward
told the court that he "will follow" the criminal laws even though
"they're not valid" because he has "no choice."
And he emphasized
his good behavior in prison as showing that he has submitted to
the government's authority notwithstanding his beliefs.
We
will
not
second-guess
the
sentencing
judge's
determination of the sincerity of Edward's statements absent a
finding of clear error.
See United States v. Ubiles-Rosario, 867
F.3d 277, 292 n.15 (1st Cir. 2017); United States v. Cortés-Medina,
819 F.3d 566, 573 (1st Cir. 2016) ("[T]he district court is in the
best position to weigh the credibility of a claim of rehabilitation
and to balance the sentencing scales in light of such a claim.").
Edward has made no effort to demonstrate that standard here, and
we at any rate find no error in the district court's assessment.
The district court considered Edward's statements and
rejected them.
Though the judge acknowledged Edward's seemingly
good
in
behavior
prison,
applicable
to
release
society
to
he
determining
because
suggested
Edward's
prison
- 37 37a
that
it
potential
is
was
not
behavior
"designed
to
very
after
eliminate
Case: 20-1959
Document: 00117843242
resistance."
Page: 38
Date Filed: 02/16/2022
Entry ID: 6477474
And the judge also acknowledged Edward's statements
that he "will follow" the law, but emphasized that it was "hard to
accept" that Edward wouldn't break the law again or would follow
conditions of release since Edward "indicate[d] to this minute
that . . . they're not valid laws" and that he does not accept the
authority of the court.
From our vantage, that appraisal was not
clearly erroneous.
B.
Substantive Reasonableness
Satisfying the procedural-reasonableness probe, we turn
now to test the sentence's substantive reasonableness.
"A
sentence
is
substantively
reasonable
if
the
'sentencing court has provided a plausible sentencing rationale
and reached a defensible result.'"
Pupo, 995 F.3d at 29 (quoting
United States v. Flores-Quiñones, 985 F.3d 128, 133 (1st Cir.
2021)).
This review is highly deferential.
United States v.
Fuentes-Moreno, 954 F.3d 383, 396 (1st Cir. 2020).
We evaluate
the reasonability of the overall sentence "in light of the totality
of the circumstances."
United States v. Flores-Machicote, 706
F.3d 16, 20 (1st Cir. 2013). And we recognize that we owe deference
to the sentencing court's informed discretion in fashioning an
appropriate sentence, ever cognizant of the fact that "[t]here is
more than one reasonable sentence in virtually any case." FuentesMoreno, 954 F.3d at 396 (quoting United States v. Matos-de-Jesús,
856 F.3d 174, 179 (1st Cir. 2017)).
- 38 38a
Thus, we will find a sentence
Case: 20-1959
Document: 00117843242
Page: 39
Date Filed: 02/16/2022
Entry ID: 6477474
substantively unreasonable "only if it falls beyond the expansive
universe of reasonable sentencing outcomes."
United States v.
Benoit, 975 F.3d 20, 24 (1st Cir. 2020) (quoting United States v.
Rodríguez-Torres, 939 F.3d 16, 43 (1st Cir. 2019)).
In other
words, "we do not reverse simply because we would have sentenced
the defendant differently."
Id.
Edward
four
unreasonable:
submits
reasons
his
sentence
was
(1) the district court's reliance on Edward's
beliefs; (2) the total sentence as compared to the sentences given
his co-defendants; (3) the total sentence considering his advanced
age; and (4) the total sentence, taking everything into account,
was longer than necessary to achieve the sentencing goals of
§ 3553(a).
We take each in turn, though mindful that a sentence's
substantive reasonableness must be eyeballed in light of the
totality of the circumstances.
See Flores-Machicote, 706 F.3d at
20.
1.
Belief system
First, Edward contends, tacking on to his proceduralreasonableness argument, that the district court's reliance on his
beliefs resulted in a substantively unreasonable sentence.
But,
for the same reasons this failed as a procedural-reasonableness
argument, it fails as a substantive-reasonableness argument, too.
Onward.
- 39 39a
Case: 20-1959
Document: 00117843242
2.
Page: 40
Date Filed: 02/16/2022
Entry ID: 6477474
Co-defendant disparity
Next, Edward contends that there was an unwarranted
disparity between the sentence he received and the sentences his
co-conspirators received on resentencing.
In imposing sentence,
a district court must consider "the need to avoid unwarranted
sentence disparities among defendants with similar records who
have
been
found
§ 3553(a)(6).
guilty
of
similar
conduct."
18
U.S.C.
Though that is typically concerned with national
disparities, we have also considered claims that a sentence is
substantively unreasonable because of a disparity relative to a
co-defendant's sentence.
See United States v. Grullon, 996 F.3d
21, 35 (1st Cir. 2021).
Not all co-defendant disparities in sentencing yield a
substantively unreasonable sentence.
As we've explained, "[t]he
key word is 'unwarranted' -- that is, § 3553(a)(6) does not ban
all disparities, just 'unwarranted' ones."
United States v.
Romero, 906 F.3d 196, 211 (1st Cir. 2018).
A defendant "is not
entitled to a lighter sentence merely because his co-defendants
received lighter sentences."
United States v. Dávila-González,
595 F.3d 42, 50 (1st Cir. 2010) (quoting United States v. Wallace,
573 F.3d 82, 97 (1st Cir. 2009)).
To make out a well-founded claim
of sentencing disparity, a defendant must compare apples to apples.
United States v. Mateo-Espejo, 426 F.3d 508, 514 (1st Cir. 2005).
Among other things that may throw off a direct comparison, we have
- 40 40a
Case: 20-1959
looked
Document: 00117843242
at
a
Page: 41
co-defendant's
Date Filed: 02/16/2022
cooperation,
the
nature
Entry ID: 6477474
of
her
cooperation, and her choice to plead guilty instead of going to
trial, see United States v. Reyes-Santiago, 804 F.3d 453, 467 (1st
Cir. 2015) (collecting cases), as well as her relative culpability
or role in the crime, see United States v. Reverol-Rivera, 778
F.3d 363, 366 (1st Cir. 2015).
In the end, cases of identically
situated defendants "are unusual to say the least."
Grullon, 996
F.3d at 35-36.
Applying
fails.
Edward
those
clamors
principles
that
his
here,
Edward's
co-defendants
challenge
each
received
sentences of time served on resentencing even though their original
sentences were substantially higher than what they had to that
point served.13
Yet Edward fails to grapple with the reasons the
sentencing judge gave for the disparity.
First,
the
judge
explained
that
Elaine,
Riley,
and
Gerhard each showed that they had "learned" during their prison
terms that what they had done was wrong.
As the judge put it,
"[t]hey appeared broken by the period of incarceration," leaving
At the time of resentencing, Elaine had served 85 months
of her 420-month sentence. Mot. on Resentencing at 1 & n.2, United
States v. Brown, No. 09-cr-30 (D.N.H. Jan. 16, 2020), ECF No. 311.
Riley had served, as best we can tell, around 12 years of his 36year sentence. And Gerhard, too, had served over 12 years of his
original 20-year prison sentence. Def.'s Obj. to Resentencing &
Sentencing Mem. at 3, United States v. Gerhard, No. 07-cr-189
(D.N.H. Jan. 20, 2020), ECF No. 713.
13
- 41 41a
Case: 20-1959
Document: 00117843242
Page: 42
Date Filed: 02/16/2022
Entry ID: 6477474
the judge with no doubt that there was "no risk" that any of them
would engage in the same behavior.
Edward, though, didn't give
the judge the same confidence given his comments that he still
thinks he did nothing wrong, and about the authority of the law
and the courts.
Second, Edward acknowledges that he "may have been more
culpable" than his co-defendants but suggests he wasn't moreculpable enough to justify serving almost double time in prison.
Yet the district court disagreed.
It noted that Edward was "the
leader and instigator of the entire standoff."
It also emphasized
that Edward dragged others into his crime to support his standoff,
"brainwash[ing]" one of the co-defendants.
Both rationales were
supported by the record.
Ultimately,
the
sentencing
judge
assessed
Edward's
greater culpability, combined with all the other factors relevant
to his sentencing (including his continued belief he did nothing
wrong), and concluded that he merited a substantially higher
sentence than his co-defendants.
and
reached
a
defensible
He gave a plausible rationale
result
relative
defendants, so we find no abuse of discretion.
to
Edward's
co-
See Grullon, 996
F.3d at 36; Reverol-Rivera, 778 F.3d at 367.
3.
Age
Finally, Edward appears to contend that the district
court failed to consider his advanced age and the fact that, under
- 42 42a
Case: 20-1959
Document: 00117843242
Page: 43
Date Filed: 02/16/2022
Entry ID: 6477474
the average life-expectancy, he has received "[i]n effect" a life
sentence.
This argument, too, fails.
True, a sentencing court is required to consider a
defendant's age as a potential mitigating factor.
See 18 U.S.C.
§ 3553(a)(1) (identifying as a sentencing factor "the history and
characteristics of the defendant"). Also true, "in general, '[t]he
propensity to engage in criminal activity declines with age,' and
so persons convicted of a crime late in life may be unlikely to
recidivate."
United States v. Pacheco-Martinez, 791 F.3d 171, 180
(1st Cir. 2015) (alteration in original) (quoting United States v.
Johnson, 685 F.3d 660, 661–62 (7th Cir. 2012)).
But even accepting that, a defendant's age is but one of
many factors a sentencing court must consider.
See United States
v. Rivera-Morales, 961 F.3d 1, 21 (1st Cir. 2020); see also 18
U.S.C. § 3553(a). The judge here surveyed all the relevant factors
(including the seriousness of the crime, Edward's continued lack
of remorse, and his continued rejection of the authority of the
laws and the court) and concluded they outweighed this mitigating
factor. Indeed, even considering Edward's advanced age, this could
well be a case where Edward's crimes (committed when he was already
64 years old), as well as his continued rejection of the authority
of the criminal laws, revealed that he "may be one of the few
oldsters who will continue to engage in criminal activity until he
- 43 43a
Case: 20-1959
Document: 00117843242
drops."
Page: 44
Date Filed: 02/16/2022
Entry ID: 6477474
Pacheco-Martinez, 791 F.3d at 180 (cleaned up) (quoting
Johnson, 685 F.3d at 662).
As we have explained time and again, a sentence is not
rendered unreasonable simply because the sentencing court didn't
apply as much emphasis to some mitigating factors as the defendant
hoped.
See, e.g., Pupo, 995 F.3d at 32; United States v. Dávila-
Bonilla, 968 F.3d 1, 12 (1st Cir. 2020).
And as we've explained
specifically in the context of a nearly identical argument, a
weighty sentence given to a defendant of advanced age is not
substantively unreasonable where the sentencing judge, considering
all the relevant factors, offers a plausible rationale and delivers
a defensible result.
(finding
no
See
substantive
Pacheco-Martinez, 791 F.3d at 180
unreasonableness
in
spite
of
the
defendant's age because, in part, he "ha[d] shown no sign of
changing his ways" and, at sentencing, expressed no remorse but
instead "assert[ed] that the court lacked jurisdiction over him");
United States v. Angulo-Hernández, 565 F.3d 2, 13 (1st Cir. 2009)
(no substantive unreasonableness where the defendant's advanced
age "was outweighed by the severity of [his] current offense and
history of drug crimes").
4.
The judge did so here.
Zooming out
All told, the district court, in light of all the
circumstances here, provided a plausible rationale and delivered
a defensible result.
In fact, the result it delivered was a
- 44 44a
Case: 20-1959
Document: 00117843242
Page: 45
Date Filed: 02/16/2022
sentence substantially below the Guidelines range.
Entry ID: 6477474
See United
States v. Cameron, 835 F.3d 46, 52 (1st Cir. 2016) ("It is a rare
below-the-range
defendant's
United
sentence
claim
States
v.
of
that
will
substantive
King,
741
F.3d
prove
vulnerable
to
a
unreasonableness."
(quoting
305,
2014)).
310
(1st
Cir.
Considering all of Edward's arguments as a whole, we spy no error.
CONCLUSION
Our work complete, the judgment below is affirmed.
- 45 45a
Case 1:09-cr-00030-GZS Document 326 Filed 09/29/20 Page 1 of 13
(NOTE: Identify Changes with Asterisks(*))
APPENDIX B
Sheet I
AO 24SC(Rev.09/19) Amended Judgment in a Criminal Case
United States District Court
District ofNew Hampshire
UNITED STATES OF AMERICA
AMENDED JUDGMENT IN A CRIMINAL CASE
V.
EDWARD BROWN
Case Number: 09-cr-30-01 GZS
USM Number. 03923-049
Date of Original Judgment:
1/11/2010
Benjamin L. Falkner
(Or Date ofLast Amended Judgment)
Defendant's Attorney
THE DEFENDANT:
□ pleaded guilty to ccimt(s)
□ pleaded nolo contendere to count(s)
which was accepted by the court.
gf was found guilty on count(s)
1.2, 3*. 5, 7,9.10 of the Indictment
after a plea of not guilty.
The defendant is adjudicated guilty of these offenses:
Title & Section
Nature of Offense
18USC§372
18US.C§§371aidlll(a)
Conspiracy tol¥evat(3ffioetsofflieUhilFd SlalrsfimKsdiaigingTharDuties
ConspoaytoCcnimitC^nseAg^lheUiitsdSl^
(W)
The defendant is sentenced as provided in pages 2 through _
8
Offense Ended
Count
10/4/2007
1
10/4/2007
2
of this Judgment. The sentence is imposed pursuant to
the Sentencing Reform Act of 1984.
□ The defendant has been found not guilty on count(s)
□ Count(s)
□ is □ are dismissed on the motion of the United States.
It is ordered that the defendant must notify the United States Attorney for this district within 30 days of any change of name, residence,
or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution,
the defendant must notify the court and United States attorney of material changes in economic circumstances.
9/29/2020
Date of Imposition of Judgment
Sigifature oFJudge
GecigeZ Sqgal,UhilBdS
sDistrictlucIgp
Name and Title of Judge
Date
*Ccunt3v9caGedafierdiallaigetD§924(c)ccxivicdon(s)basedonJctBiscnnaidida:Bd]ieoedenL
46a
«
Case 1:09-cr-00030-GZS Document 326 Filed 09/29/20 Page 2 of 13
AO 24SC(Rev.09/19) Amended Judgmenl in a Criminal Case
(NOTE;Identify Changes with Asterisks(*))
Sheet lA
Judgment—Page
2
of
DEFENDANT: EDWARD BROWN
CASE NUMBER: 09-cr-30-01 GZS
ADDITIONAL COUNTS OF CONVICTION
Title & Section
Nature of Oflcnsc
18U.S.C§§922(^l)and
924m
Felon in Possession
18US.C§ 1503
ObslnictiQnofJustioe
Offense Ended
Count
lomxn
Kmcffj
18U5.C§3146(aXl)&
(bXlXAXn)
FaSuieto AppearfirTtial
01/18Q007
9
18U.S.C§31^aXl)&(b)
FaiiunetOi^ipearferSentenciiig
lOmffl
10
(IXAXH)
47a
8
Case 1:09-cr-00030-GZS Document 326 Filed 09/29/20 Page 3 of 13
AO 24SC(Rev. 09/19} Amended Judgment in a Criminal Case
Sheet 2 — Imprisonment
(NOTE:Identify Changes with Asterisks(•))
Judgment—Page
of
DEFENDANT: EDWARD BROWN
CASE NUMBER: 09-cr-30-01 GZS
IMPRISONMENT
The defendant is hereby committed to the custody ofthe Federal Bureau ofPrisons to be imprisoned for a
total term of:
300 months?
□
The court makes the following recommendations to the Bureau of Prisons:
The defendant is remanded to the custody of the United States Marshal.
□
□
The defendant shall surrender to the United States Marshal for this district:
□
at
□
a.m.
□
as notified by the United States Marshal.
□
p.m.
on
The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:
□
before 2 p.m. on
.
□
as notified by the United States Marshal.
□
as notified by the Probation or Pretrial Services Office.
RETURN
1 have executed this judgment as follows:
Defendant delivered on
at
to
with a certified copy of this judgment.
UNITED STATES MARSHAL
By
DEPUTY UNITED STATES MARSHAL
48a
"5"
Case 1:09-cr-00030-GZS Document 326 Filed 09/29/20 Page 4 of 13
AO 24SC(Rev.09/19) Amended Judgment in a Criminal Case
Sheet 3— Supervised Release
(NOTE:Identift' Changes with Asterisks(•))
Judgment—Page
4
of
8
DEFENDANT: EDWARD BROWN
CASE NUMBER: 09-cr-30-01 GZS
SUPERVISED RELEASE
Upon release from imprisonment, you will be on supervised release for a term of:
A total term of 3 years.
MANDATORY CONDITIONS
1.
2.
3.
You must not commit another federal, state or local crime.
You must not unlawfully possess a controlled substance.
You must refiain from any unlawful use ofa controlled substance. You must submit to one drug test within IS days ofrelease fiom
imprisonment and at least two periodic drug tests thereafter, as determined by the court.
□ The above drug testing condition is suspended, based on the court's determination that you pose a low risk of future
substance abuse, (check ifm>lieable)
You must make restitution in accordance with 18 U.S.C. § 3663 and 3663A or any other statute authorizing a sentence of
4.
□
5.
Ef You must cooperate in the collection of DNA as directed by the probation officer, (chedi ifapplicable)
6.
□
7.
reside, work, are a student, or were convicted of a qualifying offense, (check fapplicable)
□ You must participate in an approved program for domestic violence, (check ifapplicable)
restitution, (check ifappUcabk)
You must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C. § 20901, et seq.) as
directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in the location where you
You must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the attached page.
49a
Case 1:09-cr-00030-GZS Document 326 Filed 09/29/20 Page 5 of 13
AO 24SC(Rev.09/19) Amended Judgment in a Criminal Case
Sheet 3A — Supervised Release
Judgment—Page
DEFENDANT;
of
EDWARD BROWN
CASE NUMBER: 09-cr-30-01 GZS
STANDARD CONDITIONS OF SUPERVISION
As part of your supervised release, you must comply with the following standard conditions ofsupervision. These conditions are imposed
because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed by probation
officers to keep informed,report to the court about, and bring about improvements in your conduct and condition.
1.
You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of your
release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a different
time frame.
4.
5.
9.
10.
After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how and
when you must report to the probation officer, and you must report to the probation officer as instructed.
You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission from
the court or the probation officer.
You must answer truthfully the questions asked by your probation officer.
You must live at a place approv^ by the probation officer. Ifyou plan to change where you live or anything about your living
arrangements(such as the people you live with), you must notify the probation officer at least 10 days before the change. If notifying
the probation officer in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72
hours of becoming aware ofa change or expected change.
You must allow the probation ofRcer to visit you at any time at your home or elsewhere, and you must permit the probation officer
to take any items prohibited by the conditions of your supervision that he or she observes in plain view.
You must work full time (at least 30 hours per week)at a lawful type of employment, unless the probation officer excuses you from
doing so. If you do not have full-time employment you must tiy to frnd full-time employment, unless the probation officer excuses
you from doing so. If you plan to change where you work or anything about your work(such as your position or yourjob
responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10
days in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of
becoming aware of a change or expected change.
You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has been
convicted ofa felony, you must not knowingly communicate or interact with that person without first getting the permission ofthe
probation officer.
If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.
You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that
was designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or
tasers).
11.
12.
You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without
first getting the permission ofthe court.
Ifthe probation officer determines that you pose a risk to another person (including an organization), the probation officer may
require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact Ae
person and confirm that you have notified the person about the rislL
13.
You must follow the instructions ofthe probation officer related to the conditions of supervision.
U.S. Probation Office Use Only
A U.S. probation officer has instructed me on the conditions specified by the court and has provided me with a written copy ofthis
judgment containing these conditions. For fiuther information regarding these conditions, see Overview ofProbation and Supervised
Release Conditions, available at: www.uscourts.eov.
Defendant's Signature
Date
50a
Case 1:09-cr-00030-GZS Document 326 Filed 09/29/20 Page 6 of 13
AO 245C(Rev.09/19) Amended Judgment in a Criminal Case
Sheet 3D—Supervised Release
(NOTE: Identify Changes with Asterisks(*))
Judgment—Page
of
8
DEFENDANT: EDWARD BROWN
CASE NUMBER: 09-cr-30-01 GZS
SPECIAL CONDITIONS OF SUPERVISION
You must submit your person, property, house, residence, vehicle, papers, computers(as defined in 18 U.S.C.§ 1030(e)
(1)), other electronic communications or data storage devices or rhedia, or office, to a search conducted by a United States
Probation Officer. Failure to submit to a search may be grounds for revocation of release. You must wam any other
occupants that the premises may be subject to searches pursuant to this condition. The probation officer may conduct a
search under this condition only when reasonable suspicion exists that you have violated a condition of supervision and
that the areas to be searched contain evidence of this violation. Any search must be conducted at a reasonable time and
in a reasonable manner.
51a
Case 1:09-cr-00030-GZS Document 326 Filed 09/29/20 Page 7 of 13
Sheet5—Criminal Monetaiy Penalties
(NOTE:Identify Changes with Asterisks(*))
AO 24SC(Rev. 09/19) Amended Judgment in a Criminal Case
Judgment—Page
7
of
8
DEFENDANT: EDWARD BROWN
CASE NUMBER: 09-cr-30-01 GZS
CRIMINAL MONETARY PENALTIES
The defendant must pay the following total criminal monetary penalties luider the schedule of payments on Sheet 6.
Assessment
TOTALS
Restitution
$ 600.00
Fine
$
AVAA Assessment*
$
□ The determination of restitution is deferred until
S
JVTA Assessment**
$
. An Amended Judgment in a Criminal Case (AO 245C) will be
entered after such determination.
□ The defendant shall make restitution (including community restitution) to the following payees in the amount listed below.
If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified
pecifie< otherwise in
the priority order or percentage payment column below. However, pursuant to 18 u.S.C. § 3664(1), all nonfederal victir
victims must be—
paid
before the United States is paid.
Name of Pavee
TOTALS
Total Loss***
S
Restitution Ordered
0.00
$
Prioritv or Percentage
0.00
□
Restitution amount ordered pursuant to plea agreement S
□
The defendant must pay interest on restitution and a fine of more than S2,S00, unless the restitution or fine is paid in full before the
fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(0. All of the payment options on Sheet 6 may be subject
to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).
□
The court determined that the defendant does not have the ability to pay interest, and it is ordered that:
□ the interest requirement is waived for
□ the interest requirement for the
□
□ fine
fine
□ restitution.
□ restitution is modified as follows:
♦ Amy. Vicky, and Andy Child Pornography Victim Assistance Act of 2018, Pub. L. No. 115-299.
** Justice for victims or Tracking ^ of20l5. Pub. L. No. 114-22.
*** Findings for the total amount oflosses are required under C3iapters I09A, 110,110A,and II3A ofTitle 18 for offenses committed on
or after September 13, 1994, but before April 23,1996.
52a
Case 1:09-cr-00030-GZS Document 326 Filed 09/29/20 Page 8 of 13
AO 245C(Rev. 09/19) Amended Judgment in a Criminal Case
Sheet6 — Schedule ofPayments
(NOTE:Identify Changes with Asterisks(*))
Judgment—Page
fl
of
_a_
DEFENDANT: EDWARD BROWN
CASE NUMBER: 09-cr-30-01 GZS
SCHEDULE OF PAYMENTS
Having assessed the defendant's ability to pay, payment ofthe total criminal monetary penalties shall be due as follows:
A
Lump sum payment of$
□
not later than
□
in accordance with
600.00
due immediately, balance due
,or
DC,
□ D,
□
E, or
□ F below; or
B
□
Payment to begin immediately (may be combined with
□ C,
□ D, or □ F below); or
C
□
Payment in equal
(e.g., weekly, monthly, quarterly) installments of S
over a period of
(e.g., months or years), to commence
(e.g., 30 or 60 days) after the date of this judgment; or
D
□
Payment in equal
(e.g., weekly, monthly, quarterly) installments of $
over a period of
(e.g., months or years), to commence
(e.g., 30 or 60 days) after release from imprisonment to a
term of supervision; or
E
□
Payment during the tenn of supervised release will commence within
(e.g., 30 or 60 days) after release from
imprisonment. The coiut will set the payment plan based on an assessment of the defendant's ability to pay at that time; or
□
Special instructions regarding the payment of criminal monetaiy penalties:
The defendant shall receive credit for all payments previously made toward any criminal monetaiy penalties imposed.
□
Joint and Several
Case Number
Joint and Several
Defendant and Co-Defendant Names
(including defendant number)
Total Amount
Amount
□
The defendant shall pay the cost of prosecution.
□
The defendant shall pay the following court cost(s):
□
The defendant shall forfeit the defendant's interest in the following property to the United States:
Corresponding Payee,
if appropnate.
Payments shall be applied in the following order: (1) assessmentj[2) restitution principal, (3) restitution interest, (4) AVAA assessment, (5)
fine principal, (6) fine interest, (7) community restitution, (8) JVTA assessment, (9) penalties, and (10) costs, including cost of prosecution
and coiut costs.
53a
Case 1:09-cr-00030-GZS Document 326 Filed 09/29/20 Page 9 of 13
UNITED STATES OF AMERICA
DISTRICT OF NEW HAMPSHIRE
UNITED STATES OF AMERICA
V.
CRIMINAL NO.09-CR-30-GZS
EDWARD BROWN,
Defendant
FINDINGS AFFECTING SENTENCE
I FIND as follows:
1.
The facts as set forth in the Presentence Report, as amended by the Addendum
and Supplemental Presentence Report, except as set forth in response to objections.
Count One-Conspiracy to Prevent Officers of the United States from Discharging Their
Duties.
2.
United States Sentencing Commission Guideline 2X1.1 for violation of 18 U.S.C.
§ 372 instructs to apply the base offense level from the guideline for the substantive offense plus
any adjustments from the guideline for any intended conduct that can be established with
reasonable certainty. The substantive offense is obstruction ofjustice; therefore, pursuant to
2J1.2 the resulting base offense level is 14.
3.
The instant offense involved threatening physical injury to a person in order to
obstructjustice; therefore, pursuant to 2J 1.2(b)(1)(B), the base offense level is increased by 8 for
a total of22.
4.
The instant offense resulted in substantial interference with the administration of
justice; therefore, pursuant to 2J 1.2(b)(2), the base offense level is increased by 3 for a total of
25.
54a
Case 1:09-cr-00030-GZS Document 326 Filed 09/29/20 Page 10 of 13
5.
Pursuant to USSG §3B1.1(a),the offense level is increased four levels for his role
in the offense for a total of29.
6.
Defendant committed the instant offense while on release for the federal tax
offenses in Docket 06-cr-71-02-SM; therefore, pursuant to 3CI.3 there is an increase ofthree
levels for a total of 32.
Count Two-Conspiracy to Commit Offenses Against the United States.
7.
United States Sentencing Commission Guideline 2A2.4 for violation of 18
U.S.C. §§ 371 and 111(a)(1)calls for a base offense level of 10.
8.
Pursuant to U.S.S.G. § 2A2.4(b)(l)(B),the offense level is increased by three
levels because a dangerous weapon was possessed and its use was threatened for a total of 13.
9.
Pursuant to U.S.S.G. § 3Bl.l(c),the offense is increased four levels for his role in
the offense for a total of 17.
10.
Defendant committed the instant offense while on release for the federal tax
offenses in Docket 06-cr-71-02-SM; therefore, pursuant to U.S.S.G. § 3C1.3 there is an increase
ofthree levels for a total of20.
Count Five - Felon in Possession
11.
The instant offense involved a semiautomatic firearm that was capable of
accepting a large capacity magazine; therefore, pursuant to 2K2.1 for violation of 18 U.S.C. §
922(g)the base offense calls for a level of20.
12.
The instant offense involved between eight and twenty-four firearms; therefore,
pursuant to 2K2.1(b)(1)(B), four levels are added for a total offense level of24.
13.
The offense involved a destructive device; therefore, pursuant to U.S.S.G.§
2K2.1(b)(3)(B),two levels are added for a total offense level of26.
55a
Case 1:09-cr-00030-GZS Document 326 Filed 09/29/20 Page 11 of 13
14.
One ofthe firearms had an obliterated serial number; therefore, pursuant to
U.S.S.G. § 2K2.1(b)(4)(B), there is an additional four level increase for a total offense level of
30.
15.
Defendant possessed the firearm in connection with another felony offense;
therefore, pursuant to U.S.S.G. §2K2.1(b)(6), an additional four levels are added for a total
offense level of 34.
16.
Pursuant to U.S.S.G. §3B 1.1(c), the offense is increased four levels for his role in
the offense for a total of 38.
17.
Defendant committed the instant offense while on release for the federal tax
offenses in Docket 06-cr-71-02-SM; therefore, piu-suant to U.S.S.G. § 3C1.3 there is an increase
ofthree levels for a total of41.
Count Seven -Obstruction of Justice
18.
USSG 2J1.2 for violation of 18 U.S.C. § 1503 calls for a base offense level of 14.
19.
The instant offense involved threatening physical injury to a person in order to
obstruct the administration ofjustice; therefore, pursuant to 2J 1.2(b)(1)(B), the base offense level
is increased by 8 for a total of22.
20.
The instant offense resulted in substantial interference with the administration of
justice; therefore, pursuant to 2J1.2(b)(2), the base offense level is increased by 3 for a total of
25.
21.
Pursuant to 3B1.1(c), the offense is increased four levels for his role in the offense
to 29.
56a
Case 1:09-cr-00030-GZS Document 326 Filed 09/29/20 Page 12 of 13
22.
Defendant committed the instant offense while on release for the federal tax
offenses in Docket 06-cr-71-02-SM; therefore, pursuant to 3C1.3 there is an increase ofthree
levels for a total of 32.
Count Nine-Failure to Appear for Trial.
23.
USSG 2J1.6(a)(2)for violation of 18 U.S.C.§ 3146 calls for a base offense level
24.
There is a six level increase because the underlying offense is punishable for five
of6.
years or more, but less than fifteen years for an offense level of 12.
Count Ten -Failure to Appear for Sentencing.
25.
USSG 2J1.6(a)(2)for violation of 18 U.S.C.§ 1346 calls for a base offense level
26.
There is a six level increase because the underlying offense is punishable for five
of6.
years or more, but less than fifteen years for an offense level of 12.
27.
The counts are grouped together piu-suant to 3D1.2(c); therefore, the combined
offense level is determined by using the highest offense level of the counts, which in this case is
Count Five, Felon in Possession, and results in a combined offense level of41.
28.
Defendant's Criminal History Category is Category III.
29.
For a Total Offense Level of41 and a Criminal History Category ofIII, the
applicable Guideline range is 360 months to life.
30.
The Defendant is not eligible for probation. Guideline 5B1.1(b)(1).
31.
Pursuant to U.S.S.G. § 5D1.2(b)(2), the term for supervised release for Count 5 is
one year to three years.
57a
Case 1:09-cr-00030-GZS Document 326 Filed 09/29/20 Page 13 of 13
32.
Pursuant to U.S.S.G. § 5E1.2(c)(4), the fine range for the instant offense is from
$20,000 to $200,000.
33.
A total special assessment fee of$600 is mandatory, pursuant to 18 U.S.C. §
3013.
SO ORDERED.
George Z. Singal 7
United States District Judge
Dated this 29th day ofSeptember,2020.
58a
APPENDIX C
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
1
2
3
4
5
6
7
8
9
* * * * * * * * * * * * * * * * * *
*
UNITED STATES OF AMERICA
*
*
* No. 1:09-cr-00030-01-GZS
v.
* September 29, 2020
* 11:05 a.m.
*
EDWARD BROWN,
*
*
Defendant.
*
*
* * * * * * * * * * * * * * * * * *
10
TRANSCRIPT OF RESENTENCING HEARING
11
BEFORE THE HONORABLE GEORGE Z. SINGAL
12
13
APPEARANCES:
14
15
For the Government:
AUSA Seth R. Aframe
United States Attorney's Office
For the Defendant:
Benjamin L. Falkner, Esq.
Krasnoo Klehm & Falkner LLP
U.S. Probation:
Sean Buckley
Court Reporter:
Brenda K. Hancock, RMR, CRR
Official Court Reporter
United States District Court
55 Pleasant Street
Concord, NH 03301
(603) 225-1454
16
17
18
19
20
21
22
23
24
25
59a
70
1
forward.
2
its sentence.
3
Thank you.
The Court will indicate the reasons for
I've determined the sentence I'm imposing is
4
sufficient but not greater than necessary to effectuate the
5
goals of 18 U.S.C. Section 3553(a).
6
I've carefully considered the sentencing range set forth in the
7
advisory guidelines, though I give the guidelines no
8
controlling weight.
9
factors set forth in 3553(a).
10
and circumstances of the offense, the history and personal
11
characteristics of this defendant, the seriousness of the
12
offense, the need to promote respect for the law, the need for
13
just punishment, the need for specific and general deterrence,
14
and the need to protect the public from further crimes of this
15
defendant.
16
In setting this sentence,
I have taken into account all of the
I find most important the nature
Let me go into a bit more detail.
Mr. Falkner in his
17
argument indicates that he shouldn't be sentenced simply upon
18
his beliefs.
19
aware of his beliefs, and we were aware of his beliefs prior to
20
his conviction on the tax charges and his beliefs following
21
that.
22
acting on his beliefs, he put in danger multiple individuals,
23
not only law enforcement officers, but put in danger those
24
individuals that were ensconced with him as they held off law
25
enforcement from executing a valid arrest warrant.
As I indicated to Mr. Falkner, we are certainly
The problem is that he acts on his beliefs, and, by
60a
71
1
Mr. Falkner indicates that this individual, Mr. Brown,
2
has been in custody in 2007, and at an earlier sentencing other
3
people were released for time served.
4
more detail later on.
5
Mr. Brown was the leader and instigator of the entire standoff,
6
and others were brought into that event through Mr. Brown's
7
eloquence.
8
I'll deal with that in
I would only indicate at this point that
I've listened very carefully to Mr. Brown's
9
allocution.
10
expressed during the psychological assessment were, in fact, as
11
he indicated, true.
12
farce in a sense, that it's simply run by a European cartel and
13
is not applicable to him.
14
criminal activism.
He feels that he did nothing wrong and that
15
the law is wrong.
He indicated that he would continue to not
16
pay his taxes.
17
me, particularly.
18
law," is relevant to me.
19
Parts of it strike me deeply.
His views as
He views the criminal law system as a
He denies any accountability for his
Whether or not he had taxes is not relevant to
An element of, "I don't intend to obey the
I took a moment before I came down to look at the
20
earlier events that took place around his house.
21
a resentencing, I wanted to get a full impact of what happened.
22
This is the crime we're discussing.
Since this is
Mr. Brown and his
23
followers, including his wife, barricaded themselves in a home
24
built as a fortress to escape serving a valid sentence entered
25
into by this Court for violation of the tax laws.
61a
He armed
72
1
himself and his followers, daring law enforcement to come and
2
get him.
3
enforcement was extreme.
The risk of danger to himself, his followers and law
4
When I say "armed himself," we're talking about the
5
law enforcement personnel later finding 20 pipe bombs in his
6
bedroom, improvised explosive devices with nails taped around
7
them built in the house and ready for use.
8
sniper-type rifle with a night scope was found in his bedroom,
9
along with other arms.
10
scope was found on the third floor, also with a night scope.
11
see these as simply and apparently weapons designed to pick off
12
law enforcement personnel, should they approach the house.
13
A .50-caliber
Another .50-caliber rifle with a night
I
Also found were numerous assault rifles, improvised
14
explosive devices, tear gas canisters, all scattered throughout
15
the house.
16
what I have to describe as a huge amount of ammunition ready
17
for use.
18
Also found were scattered firearms and bombs and
Outsi
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