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

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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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Document: 00117843242

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

- 20 20a

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.

- 26 26a

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

- 29 29a

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by

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

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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