|UNITED STATES OF AMERICA,|
|RAYMOND DEAN BROWN,|
In this appeal, Brown claims several errors in the district court's re-sentencing. Brown contends that the district court erred in (1) failing to conduct a de novo resentencing on remand, (2) refusing to grant Brown an adjustment for his acceptance of responsibility, (3) adding criminal history points for state charges, which involved the same conduct as the federal charges, and (4) failing to give Brown credit for time served in federal custody in calculating his sentence.
We AFFIRM Brown's sentence and DISMISS this case.
In July of 2002, Raymond D. Brown was convicted after a four-day jury
trial of (1) being a felon in possession of a firearm, (2) unlawfully possessing a
machine gun, and (3) carrying a machine gun in relation to a drug trafficking
crime, respectively in violation of
18 U.S.C. §§ 922,
18 U.S.C. § 2.
After considering the applicable sentencing guidelines and presentence report
(PSR), the district court sentenced Brown to 75 months(32897) imprisonment for the
first two counts and 360 months(32898) imprisonment
for the third count, to be served
subsequently appealed his conviction and sentence to this court. We
affirmed Brown's conviction, but reversed and remanded the case for
resentencing. Brown, 400 F.3d at 1255. We held,
Mr. Brown's final contention is the district court erred, under Fed. R.
Crim. P. 32(i)(3), in accepting the presentence report's assessment of his
criminal record without ruling on his objections that some of his prior
charges had in fact been dismissed. The sentencing transcript nowhere
shows that the district court weighed these objections or sought further
hearings regarding them. The government agrees the district court
should have resolved Mr. Brown's objections before sentencing him and
that this case should be remanded for resentencing. Since the disputed
charges could result in a reduction of Mr. Brown's criminal history
category and thus his sentence, we agree that remand is appropriate.
For the reasons stated above, we AFFIRM Mr. Brown's conviction but
REVERSE and REMAND the case for sentencing.
On remand, Brown filed numerous motions both relating to sentencing and
to his conviction in district court. Brown, among other things, sought to vacate
his conviction for lack of competency and for violations of Kastigar v. United
States, 406 U.S. 441 (1972), the double jeopardy clause, the Fifth Amendment
right against self-incrimination, and the Sixth Amendment right to counsel. The
district court addressed Brown's competency claims and ultimately rejected them.
In dismissing Brown's other motions challenging his conviction, the district court
wrote that non-sentencing motions are not properly raised at a re-sentencing
hearing, which was the purpose of the remand.
In the same order, the district court held that Brown's request for a de novo
sentencing, including a new PSR, was "untimely" considering this court's "very
specific directions to reconsider Mr. Brown's objections to his criminal history
before imposing a sentence." Aplt. App. vol. I, at 109.
At Brown's re-sentencing hearing the next day, the district court addressed
Brown's objections to the presentence report. First, Brown sought a downward
adjustment for his "acceptance of responsibility," USSG § 3E1.1, based on his
initial assistance to state investigators. The district court declined the adjustment
stating that Brown "never accepted responsibility for the crime . . ., has
vigorously contested his innocence from its [sic] very inception of these charges
and does to the present hour." ROA, vol. XX, at 58.
Next, the district court considered the recommended "obstruction of justice"
enhancement, USSG § 3C1.1. Although not objected to at the original sentencing
proceedings, Brown challenged the enhancement on remand. After hearing
argument and witness testimony, the district court agreed with Brown and
declined to apply the "obstruction of justice" enhancement.
The district court then ruled on Brown's various objections to his criminal
history score, which the PSR determined to be 10, placing him in criminal history
category V. The district court overruled most objections, but sustained Brown's
objection to the addition of one criminal history point for an Arkansas controlled
substance conviction because it was not clear whether he had counsel or
knowingly waived counsel.
Finally, the district court addressed Brown's objection to the PSR's
addition of three criminal history points for his Wyoming state court conviction
for operating a clandestine methamphetamine laboratory. Brown claimed that the
state conviction could not be used to generate criminal history points because it
involved conduct that was also the basis for the instant federal conviction. The
district court heard testimony from a probation officer stating that the state
convictions were connected temporally to the instant offense, but that they were
not "relevant conduct" under the Guidelines. ROA, vol. XX, at 115117. The
district court agreed with this assessment and overruled the objection.
Based on the adjustments made to Brown's Guidelines calculation on
remand, his total offense level was reduced from 24 to 22, and his criminal
history category was reduced from V to IV. The district court then sentenced
Brown to 30 months(32899) imprisonment for the first
two counts, but maintained the
statutorily mandated 360-month sentence for the third count, to be served
Brown now appeals this sentence.
In this appeal, Brown contends that the district court misinterpreted the
scope of this Court's remand in failing to grant him a de novo resentencing and
erred in calculating the applicable sentencing guidelines. In considering a district
court's sentencing determination, we review the district court's factual findings
for clear error and its legal conclusions de novo. United States v. Kristl, 437 F.3d
1050, 1054 (10th Cir. 2006).
Scope of Remand Brown argues that he was entitled to a de novo sentencing based on our
remand of his original sentence. While we agree the district court erred in failing
to grant Brown a de novo sentencing, we hold that such error was harmless
considering the district court's consideration of all of Brown's sentencing-related
It is well-settled that resentencing on remand is typically de novo. United
States v. Keifer, 198 F.3d 798, 801 (10th Cir. 1999); United States v. Webb,
F.3d 585, 587 (10th Cir. 1996). Thus, when we vacate and remand a defendant's
sentencing, lower courts must allow the defendant any procedural rights afforded
to him at sentencing in the first instance. United States v. Smith, 930 F.2d 1450,
1456 (10th Cir. 1991) (referencing Fed. R. Crim. P. 32(a)(1)).
Nevertheless, we may limit the district court's discretion on remand
pursuant to the mandate rule. Keifer, 198 F.3d at 801. "The mandate rule is a
discretion-guiding rule that generally requires trial court conformity with the
articulated appellate remand." United States v. Hicks, 146 F.3d 1198, 1200 (10th
Cir. 1998) (internal quotes omitted). We have held that district courts should
depart from appellate court mandates only in cases of
circumstances," such as when a blatant error would result in "serious injustice."
Webb, 98 F.3d at 587. A closely related doctrine is the "law of the case" doctrine,
where "findings made at one point during litigation become the law of the case for
subsequent stages of that same litigation." Id.
The district court in this case clearly interpreted Brown I as limiting
power to conduct a de novo review on remand through the mandate rule. In
addressing Brown's sundry motions, the district court stated, "[T]he court [of
appeals] has very succinctly told me what they expect me to do, and I am going to
obey the court, nothing more, nothing less." ROA, vol. XX at 11. The district
court likely refers to our conclusion that the district court "should have resolved
Mr. Brown's objections [to the presentence report's assessment of his criminal
record] before sentencing him." Brown, 400 F.3d at 1256.
While the district court's interpretation is reasonable, we disagree that our
order in Brown I provided such a succinct and concrete instruction. A review of
our case law shows that we require quite a high level of specificity to limit a
remand on resentencing. Compare Webb, 98 F.3d at 587 (panel directed district
court to resentence within the 27- to 33-month range); United States v. Davis, 912
F.2d 1210, 1215 (10th Cir. 1990) ("We therefore will retain appellate jurisdiction
and ask the district court to explain its reasons for the extent of departure above
the guideline range.").
The mandate in Brown I simply lacks this type of specific direction.
Brown I, we simply stated, "Since the disputed charges could result in a reduction
of Mr. Brown's criminal history category and thus his sentence, we agree that
remand is appropriate." Brown, 400 F.3d at 1255. A plain reading of our holding
does not specifically limit the remand. Brown I's conclusion supports this
reading, where we stated, "For the reasons stated above, we AFFIRM Mr.
Brown's conviction but REVERSE and REMAND the case for sentencing." Id.
Here, we provide no explicit condition or qualifier to the remand order. Such an
order directs the district court to conduct sentencing anew. See Smith, 930 F.2d at
1456 (finding no specific mandate under similar language). Accordingly, to the
extent the district court believed that it was precluded from conducting a de novo
resentencing, we hold this view was incorrect.
Nonetheless, we find that the district court's error was harmless. Federal
Rule of Criminal Procedure 52(a) states that "any error, defect, irregularity, or
variance that does not affect substantial rights must be disregarded." An error
with respect to sentencing does not affect substantial rights when it did not affect
the sentence imposed by the district court. United States v.
Ollson, 413 F.3d
1119, 1120 (10th Cir. 2005). In this case, we agree with the
Brown's brief does not point to a "single, specific sentencing issue that the
district court refused to entertain on the basis of its allegedly restrictive view of
what issues were properly within the scope of this court's remand order." Aple.
Br. at 21.
Despite its pronouncement of a limited remand, the district
court not only
considered the objections that prompted the remand, but it also considered
sentencing objections made for the first time on remand. For example, it
permitted Brown to call new witnesses to defeat the PSR's obstruction of justice
enhancement, an issue not objected to at Brown's initial sentencing. The district
court declined to apply the enhancement over the government's objection based
on the new testimony.
On our review of the record, we find that the only sentencing issues that the
district court failed to reach on the merits were (1) Brown's motion from a new
PSR, (2) Brown's request for a private investigator to verify his criminal history,
and (3) Brown's request for the file on which the government relied in compiling
the PSR.(32900) Brown, unfortunately, provides no
information on how these motions
would be warranted or how they would affect his sentencing on remand. In fact,
they are not even mentioned in his brief. Aplt. Br. at 9 ("Mr. Brown need not
hash out each of the grounds justifying relief for each of his motions, instead, the
improper limitation warrants a remand with a de novo review.").
Brown next argues that the district court should have entertained all of his
motions, including the motions attacking his conviction, at sentencing. We
disagree. Because we upheld Brown's firearms convictions in Brown I, we hold
that the "law of the case" doctrine applies to these motions unrelated to
sentencing. "Ordinarily, we will not review in a second direct appeal an issue that
underlies a previously affirmed conviction." United States v. Gama-Bastidas, 222
F.3d 779, 784 (10th Cir. 2000). In the absence of non-waivable issues attacking
the underlying conviction, remand on the sentencing question will not reopen for
review the underlying convictions. Id. Most of the non-sentencing issues that
Brown raised on remand, such as his double jeopardy and Fifth Amendment
claims, were previously raised and adjudicated by this court in Brown I. The few
issues that Brown raised for the first time on remand do not constitute a non-waivable,
jurisdictional issue requiring us to depart from the general rule. See
Gama-Bastidas, 222 F.3d at 785.(32901)
Since Brown has not demonstrated how the district court's legal error
affected his sentencing, we find a remand to conduct another sentencing to be
Acceptance of Responsibility Brown next contends that he was entitled to an "acceptance of
responsibility" downward adjustment pursuant to Sentencing Guidelines § 3E1.1.
Brown claims that, after his initial arrest by state authorities, he immediately
assisted investigators by sharing information about his methamphetamine
laboratory and pleaded guilty to state charges. Brown argues that he later went to
trial on his federal charges, because he wanted to vindicate certain constitutional
rights, such as violations of his state immunity agreement, Fifth Amendment
rights, and rights under the Double Jeopardy Clause. We agree with the district
court that such a downward adjustment was not warranted.
Under the Guidelines, the downward adjustment is appropriate where the
defendant "clearly demonstrates acceptance of responsibility for his offense."
USSG § 3E1.1(a). Additional reductions are possible if the defendant "timely
provid[es] complete information to the government concerning his own
involvement in the offense" or "timely notif[ies] authorities of his intention to
enter a plea of guilty." Id. at 3E1.1(b). Section 3E1.1's commentary directs,
This adjustment is not intended to apply to a defendant who puts the
government to its burden of proof at trial by denying the essentials
factual elements of guilt, is convicted, and only then admits guilt and
expresses remorse. Conviction by trial, however, does not automatically
preclude a defendant from consideration for such a reduction. In rare
situations a defendant may clearly demonstrate an acceptance of
responsibility for his criminal conduct even though he exercises his
constitutional right to trial. This may occur, for example, where a
defendant goes to trial to assert and preserve issues that do not relate to
factual guilt . . . .
Id. at cmt. n.2.
We see no error in the district court's finding that Brown has "not admitted
his guilt, and he certainly has not expressed remorse." As the district court noted,
Brown "spent most of his time castigating the fundamental fairness of the
proceedings." ROA, vol. XX at 57. In the 50 plus page filing attached to his
allocution, he accuses the government at length of engaging in a "vindictive"
conspiracy to convict him and of suborning perjury. ROA, vol. II, doc. 235. He
also contests the factual evidence to prove his 18 U.S.C. § 924 conviction. Id.
Belying his claim that he willingly submitted himself to justice under state law
and only challenged his federal charges to protect his constitutional rights, he
describes his desire to "have the opprotunity [sic] to attack [his] illegal state
conviction." Id. While he did provide some assistance to state investigators, we
do not find that his assistance rose to the level of acceptance of responsibility in
light of his other conduct.
In sum, Brown's actions do not illustrate the type of remorse justifying the
"rare situation" of providing a downward adjustment when a defendant puts the
government to its burden of proof and so we decline to do so. United States v.
Salazar-Samaniega, 361 F.3d 1271, 128082 (10th Cir.
2004). Section 4A1.1(a) allows for the addition of three criminal
points for each
prior sentence exceeding one year and one month; this provision no doubt applies
to Brown's state conviction for operating a methamphetamine laboratory for
which he was sentenced for three to five years if it was a "prior sentence."
Section 4A1.2 defines "prior sentence" as "a sentence imposed prior to sentencing
on the instant offense, other than a sentence for conduct that is part of the instant
offense." USSG § 4A1.2 at cmt. n.1 ("Conduct that is part of the instant
means conduct that is relevant conduct to the instant offense under the provisions
When a district court applies a prior sentence for criminal
purposes, we are directed to "review the court's underlying finding that the prior
sentence was not part of the instant offense, i.e., that it was not relevant conduct."
United States v. Torres, 182 F.3d 1156, 1160 (10th Cir. 1999). The district court
found that the state drug conviction was not "relevant" conduct to firearms
possession. In reviewing that finding, we "generally examine several factors,
including the similarity, temporal proximity, and regularity of the instant offense
and the prior sentence." Id. Considering these factors and applicable precedent,
we are convinced that the district court did not err in applying the three criminal
points for Brown's state conviction.
In this case, state police arrested Brown and a female
surrounding her car at a grocery store parking lot. Brown, 400 F.3d at 1245. The
machine gun linked to Brown was found in the car. Id. at 1246. The co-defendant
then informed the police about the methamphetamine lab. Id. A week
after pleading guilty to the state drug charge, a federal government indicted
Brown on the instant charges. Id.
We find the first factor of "similarity" strongly cuts against
the "substance and nature" of the offenses are distinct. Torres, 182 F.3d at
First, drug manufacturing and weapons possession represent different "societal
harms." ROA, vol. XX at 116; see United States v. Nanthanseng, 221 F.3d 1082,
1084 (9th Cir. 2000) ("The societal interest threatened by violations of drug laws .
. . is the interest in drug abuse prevention. . . . The societal interests most directly
threatened by the possession . . . of . . . firearms are . . . preventing the loss of
personal safety resulting from . . . violent physical assault." (citations omitted)).
Offenses involving such different societal interests are by definition not
"groupable" under Sentencing Guidelines § 3D1.2(d), see § 3D1.2 at
cmt. n.2, and
thus do not constitute "relevant conduct" under § 1B1.3.
Additionally, the offenses were "severable instances of
United States v. Banashefski, 928 F.2d 349, 352 (10th Cir. 1991) (considering
severability as a factor in this inquiry). Brown violated the federal firearm
statutes as soon as he possessed a machine gun. His drug manufacturing had no
bearing on the violation of these federal charges and vice versa. For example, if
Brown was arrested with the machine gun, but did not engage in drug
manufacturing, he would still be guilty of the firearms charges. In short,
evidence of one crime was unnecessary to prove the other crime.
The government concedes that the second factor of
favors Brown -- he possessed the machine gun while manufacturing drugs.
Nevertheless, considering the distinct "substance and nature" of the crimes and
different societal interests involved, we agree that the addition of the criminal
history points was warranted despite the offenses' close temporal proximity. See
United States v. Ladum, 141 F.3d 1328, 134748 (9th Cir. 1998) (allowing
criminal history points of conduct that occurred during the course of the instant
Of course, our resolution of this claim would be quite
different if the
sentencing calculation pertained to Brown's conviction for carrying a machine
gun in relation to drug trafficking. If this were the case, the state drug charge
would clearly relate to the federal firearms charge. Yet, since that charge
provides for a mandatory minimum sentence, the Guidelines are inapplicable and
the state conviction has no affect on such a sentence.(32897)
Brown's final claim is that the district court erred by
not awarding him
sentencing credit under 18 U.S.C. § 3585(b) for the time already served in federal
custody prior to his resentencing. We dismiss this claim. As we have previously
held, a sentencing court is without jurisdiction to award credit under § 3585(b)
for time served in prior custody at sentencing. United States v. Jenkins, 38 F.3d
1143, 1144 (10th Cir. 1994). Rather, the authority resides with the Attorney
General, as exercised by the federal Bureau of Prisons. Id.
III. Conclusion For the
foregoing reasons, we AFFIRM the district court's sentence and
DISMISS this appeal.
*. This order and judgment is not binding
precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
2. After examining the briefs and the appellate
record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
32897. The district court initially sentenced him to 115 months
these counts but granted Brown a 45-month credit for time already served in state
32898. This sentence is statutorily mandated under 18 U.S.C.
As such, the Guidelines' calculations only related to the first two counts.
32899. The district court sentenced Brown to 75 months
credited him with 45 months time served in state prison.
32900. In Brown's brief, he contends that he raised the issue of his
to be sentenced." Aplt. Br. at 9. We do not find this assertion supported in the
record. Brown's brief directs us to pages 314 of the district court order. Yet, a
search of that order reveals that Brown only raised a motion to vacate his
conviction for lack of competency. We find no indication he raised a
competency to be sentenced claim.
32901. In the Reply Brief, Brown's counsel intimates that Brown
did in fact
raise a jurisdictional issue in his "allocution." Aplt. Reply Br. at 2. Brown
provides no citation to the record, which is troubling considering the record
contains 26 volumes. Nevertheless, we surmise that he is referring to Brown's
colloquy with the district court during his original sentencing.
32897. Brown also contends that his state conviction involved a
offense and was thus relevant to his federal firearms charges. Reply Br. at 4. As
Brown admits, the weapons offense was dismissed pursuant to a plea agreement.
Since no state conviction exists on a weapons charge, we see no reason to
overturn the district court's holding.
Click footnote number to return to corresponding location in the text.
I was charged for three firearms [sic]; yet I felt that I was on trial for
methamphetamine manufacturing. I know that's an essential element for
the 924(c), but it went way beyond that. [T]he jury was given an
instruction that says if they don't . . . prove me guilty beyond all
reasonable doubt of manufacturing methamphetamine, then you can't
find me guilty of Count Three. My indictment didn't tell me that I had
to prepare for trial for manufacturing methamphetamine.
ROA, vol. XV at 15.
We assume that Brown's counsel is attempting to make a claim for
insufficiency of indictment, a non-waivable claim. See Fed. R. Crim. P. 12(b)(2).
But we do not find this a cognizable claim. Brown's dialogue later shows that he
is attempting to determine if the government could prosecute him on a drug
charge, not challenge his indictment. "Since the jury has found me guilty of this
drug-trafficking crime, a federal drug-trafficking crime at that, can the
government now or later indict me for this federal felony offense in Title 21
U.S.C., Section 841(a), manufacturing methamphetamine?" Id. We have also
reviewed Brown's 50 plus page filing submitted during his allocution and we
again find no cognizable, non-waivable claims. Accordingly, we dismiss this
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*. This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
2. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
32897. The district court initially sentenced him to 115 months imprisonment for these counts but granted Brown a 45-month credit for time already served in state custody.
32898. This sentence is statutorily mandated under 18 U.S.C. § 924(c)(1)(B)(ii). As such, the Guidelines' calculations only related to the first two counts.
32899. The district court sentenced Brown to 75 months imprisonment, but credited him with 45 months time served in state prison.
32900. In Brown's brief, he contends that he raised the issue of his "competency to be sentenced." Aplt. Br. at 9. We do not find this assertion supported in the record. Brown's brief directs us to pages 314 of the district court order. Yet, a search of that order reveals that Brown only raised a motion to vacate his conviction for lack of competency. We find no indication he raised a competency to be sentenced claim.
32901. In the Reply Brief, Brown's counsel intimates that Brown did in fact raise a jurisdictional issue in his "allocution." Aplt. Reply Br. at 2. Brown provides no citation to the record, which is troubling considering the record contains 26 volumes. Nevertheless, we surmise that he is referring to Brown's colloquy with the district court during his original sentencing.
32897. Brown also contends that his state conviction involved a weapons offense and was thus relevant to his federal firearms charges. Reply Br. at 4. As Brown admits, the weapons offense was dismissed pursuant to a plea agreement. Since no state conviction exists on a weapons charge, we see no reason to overturn the district court's holding.