United States v. Anthony R. Brown

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 18, 2018
• Docket: 17-15471
• Status: Unpublished

Opinion

Case: 17-15471 Date Filed: 07/18/2018 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-15471 Non-Argument Calendar ________________________

D.C. Docket No. 2:13-cr-00235-WS-N-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTHONY R. BROWN,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Alabama ________________________

(July 18, 2018)

Before TJOFLAT, MARTIN, and NEWSOM, Circuit Judges.

PER CURIAM: Case: 17-15471 Date Filed: 07/18/2018 Page: 2 of 5

Anthony R. Brown appeals the 24-month sentence he received after his

supervised release was revoked. He contends the sentence is substantively

unreasonable.

I.

In 2014, Brown pled guilty to possession of marijuana with intent to

distribute and was sentenced to a 36-month term of imprisonment, followed by

three years of supervised release. His term of supervised release began to run on

September 22, 2015.

On October 3, 2017, Brown was arrested by the Selma, Alabama police

department and charged with unlawful possession of marijuana, possession of drug

paraphernalia, and possession of a concealed pistol without a permit. On October

16, a probation officer filed a petition to have Brown’s term of supervised release

revoked, and a federal warrant was issued for his arrest. Brown was released from

state custody, but was arrested on November 3 pursuant to the federal warrant

when he went to retrieve his car from a state impound lot. At the time of the

second arrest, police found the keys for a rented Toyota Camry in Brown’s pocket.

The keys matched a Toyota Camry parked at Brown’s mother’s residence. Police

got a warrant to search the car where they found a digital scale and plastic baggies

in the front seat, along with approximately three pounds of marijuana in the trunk.

During questioning, Brown admitted to possessing the marijuana.

2 Case: 17-15471 Date Filed: 07/18/2018 Page: 3 of 5

On November 28, 2017, the district court conducted a revocation hearing. A

Selma police officer testified to Brown’s alleged criminal activities, and a

probation officer testified that Brown’s conduct violated the conditions of his

supervised release. The court found Brown violated the terms of his supervised

release. Brown explained to the court that he had worked as a commercial driver

after his release from prison, but lost his job after lacerating a tendon in his hand

and breaking his leg in a 2016 car accident. After the accident, Brown self-

medicated with marijuana. He denied being a drug dealer.

The court then sentenced Brown to 24-months imprisonment, which was the

high-end of the guidelines range.

II.

We generally review the substantive reasonableness of a revocation sentence

for abuse of discretion. 1 Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586,

597 (2007); United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014).

We consider the totality of the circumstances and will remand for resentencing

only when “left with the definite and firm conviction that the district court

1 The government urges us to conduct only a plain-error review because Brown did not raise a substantive-reasonableness objection at sentencing. The appropriate standard of review is an open question in this circuit. See United States v. Medina, 656 F. App’x 975, 981 n.3 (11th Cir. 2016) (per curiam) (unpublished) (“[T]o our knowledge, we have yet to decide in a published opinion whether we review the substantive reasonableness of a defendant’s sentence for plain error if the defendant failed to raise any objection before the district court.”). However, we need not reach this question because Brown’s claim fails under the abuse of discretion standard. 3 Case: 17-15471 Date Filed: 07/18/2018 Page: 4 of 5

committed a clear error of judgment in weighing the [18 U.S.C.] § 3553(a) factors

by arriving at a sentence that lies outside the range of reasonable sentences dictated

by the facts of the case.” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir.

2008) (quotation omitted). A district court abuses its discretion when it “(1) fails

to afford consideration to relevant factors that were due significant weight,

(2) gives significant weight to an improper or irrelevant factor, or (3) commits a

clear error of judgment in considering the proper factors.” United States v. Irey,

612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quotation omitted).

Brown argues the 24-month sentence was unreasonable because he was able

to work, drug-free, for two years after his release from prison, and it was

substantively unreasonable to impose the statutory maximum sentence for drug

violations that occurred after he sustained long-term physical injuries that

prevented him from working. He argues a below guidelines sentence—less than

18-months—would have been sufficient under § 3553(a).

Brown’s argument does not carry the day. The district court expressly took

account of “all of the evidence before [it], all of the information that’s been

presented, and . . . all of the sentencing factors and objectives of Section 3553(a) of

Title 18.” The court acknowledged Brown’s sobriety, but noted his “history of

drug distribution.” Ultimately, the court stated that a high-end sentence was

4 Case: 17-15471 Date Filed: 07/18/2018 Page: 5 of 5

warranted because “these are quite serious offenses, and quite serious offenses

require that the punishment be sufficient to meet the crime.”

While Brown’s argument highlights the more sympathetic details of his

situation, we cannot simply substitute our own judgment for that of the district

court when weighing the relevant factors. See United States v. Amedeo, 487 F.3d

823, 832 (11th Cir. 2007). The district court did not fail to consider relevant

factors, did not give significant weight to an irrelevant factor, and did not commit a

clear error in judgment in balancing the proper factors. See Irey, 612 F.3d at 1189.

Therefore the district court did not abuse its discretion by imposing a substantively

unreasonable sentence, and the sentence is affirmed.

AFFIRMED.