United States v. Brown

Opinion

Appellate Case: 25-7026 Document: 29-1 Date Filed: 12/30/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 30, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 25-7026 (D.C. No. 6:20-CR-00102-DCJ-1) SEBRON DEJUAN BROWN, (E.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before McHUGH, CARSON, and ROSSMAN, Circuit Judges. _________________________________

Sebron Dejuan Brown appeals his 48-month sentence on convictions for

odometer fraud, conspiracy to commit odometer tampering, and conspiracy to

commit wire fraud. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I

A second superseding indictment charged Brown with conspiracy to commit

odometer tampering (Count 1), two counts of odometer fraud (Counts 2 and 3), and

After examining the briefs and appellate record, this panel has determined *

unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 and 10th Cir. R. 32.1. Appellate Case: 25-7026 Document: 29-1 Date Filed: 12/30/2025 Page: 2

one count of conspiracy to commit wire fraud (Count 4). The indictment alleged

Brown devised a scheme to replace or roll back odometers in high-mileage vehicles

owned by him or his co-conspirators, who would stage collisions involving the

vehicles and sometimes unsuspecting third parties. After deliberately crashing the

vehicles, Brown submitted fraudulent insurance claims for bodily injury and vehicle

repair costs, misrepresenting the vehicles’ values. He would then collect the

insurance proceeds. This scheme continued for four years until it was discovered in a

government investigation, after which Brown cooperated and entered a blind guilty

plea to all four counts.

A final presentence investigation report (PSR) assigned Brown a total offense

level of 26 based in part on losses totaling $661,687.74. The PSR added a two-level

enhancement because Brown’s “offense involved . . . the conscious or reckless risk of

death or serious bodily injury.” U.S. Sent’g Guidelines Manual (U.S.S.G.)

§ 2B1.1(b)(16)(A) (U.S. Sent’g Comm’n 2021). Coupled with a criminal history

category of II, the PSR determined Brown’s advisory guidelines range was 70 to 87

months in prison.

The parties thereafter stipulated to losses of $109,809.22, Brown was the

organizer and leader of the scheme involving five or more participants, and there

were fewer than ten victims. Given these stipulations, the parties agreed his total

offense level should be 16, reflecting a three-level reduction for acceptance of

responsibility, a four-level enhancement because he was the organizer and leader of

the conspiracy, and an eight-level enhancement for the loss amount. They also

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agreed to a criminal history category of II, which yielded an advisory guideline range

of 24 to 30 months.

The district court accepted the PSR’s facts as amended by the parties’

stipulations and its criminal history category. But the district court rejected the total

stipulated offense level and upheld the PSR’s two-level enhancement under

§ 2B1.1(b)(16)(A) because the “offense involved . . . the conscious or reckless risk of

death or serious bodily injury.” Thus, with a total offense level of 18 and a criminal

history category of II, the district court determined the advisory sentencing range was

30 to 37 months in prison.

But during the sentencing hearing, the district court announced Brown was “a

strong candidate for an upward variance.” R., vol. 1 at 132. After hearing argument

on the propriety of a variance, the district court considered the sentencing factors at

18 U.S.C. § 3553(a) and determined an upward variance of 11 months over the high

end of the advisory guidelines range was appropriate. The district court therefore

sentenced Brown to concurrent sentences of 48 months on each of Counts 1 and 4,

and 36 months on each of Counts 2 and 3. Brown now contends his sentence is both

procedurally and substantively unreasonable.

II

“We review sentences for reasonableness under a deferential

abuse-of-discretion standard, under which we review de novo the district court’s

legal conclusions regarding the guidelines and review its factual findings for clear

error.” United States v. Rocha, 145 F.4th 1247, 1260 (10th Cir. 2025) (brackets,

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citation, and internal quotation marks omitted). “Reasonableness review is a

two-step process comprising a procedural and a substantive component.” Id.

(internal quotation marks omitted). “Procedural reasonableness looks at whether the

district court committed any error in calculating or explaining the sentence.” United

States v. Guevara-Lopez, 147 F.4th 1174, 1183 (10th Cir. 2025) (internal quotation

marks omitted). “Substantive reasonableness considers whether the length of the

sentence is reasonable given all the circumstances of the case in light of the factors

set forth in 18 U.S.C. § 3553(a).” Id. (internal quotation marks omitted).

A. Procedural Reasonableness: Application of U.S.S.G. § 2B1.1(b)(16)(A)

We first consider Brown’s arguments challenging his sentence as procedurally

unreasonable. He argues that the district court abused its discretion by imposing the

two-level enhancement under § 2B1.1(b)(16)(A) for offenses involving the

“conscious or reckless risk of death or serious bodily injury.” The district court

found that his “[staged accidents] did pose danger to other people,” R., vol. 1 at 129:

[T]he Court agrees with the probation office as to the danger caused . . . to third parties by staging accidents. Even a staged accident certainly can hurt other people, given the very nature of the fact that it’s an automobile accident, and they’re big pieces of machinery traveling at speeds that, even if unintended, can certainly hurt other people.

Id. at 130.

Brown contends this enhancement should not apply without evidence that

anyone was at risk of death or “serious bodily injury,” which he says the district

court failed to distinguish from mere “bodily injury.” Aplt. Opening Br. at 24

(internal quotation marks omitted); see also United States v. Maestas, 642 F.3d 1315,

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1322 (10th Cir. 2011) (“The government must prove facts necessary to support a

guideline enhancement by a preponderance of the evidence.”). But Brown admitted

he “stage[d] accidents.” R., vol. 1 at 164. And although the district court did not use

the word “serious” in its description of the risk of injury Brown’s scheme posed to

others, it is readily apparent that the court recognized—correctly—that staged

collisions carry an inherent risk of death or serious bodily injury. See United States

v. Lucien, 347 F.3d 45, 56-57 (2d Cir. 2003) (upholding application of the

enhancement where “the district court . . . found that the serious risk of bodily injury

was inherent to [staged collisions]” because “the risk of bodily injury inheres in any

deliberately caused accident” and “the risk of bodily injury is patent in this type of

criminal activity” (brackets and internal quotation marks omitted)); United States v.

Hoffman, 9 F.3d 49, 50 (8th Cir. 1993) (upholding enhancement “[b]ecause a risk of

[serious bodily injury] is inherent in the automobile accidents [defendant] arranged”);

see also Maestas, 642 F.3d at 1322 (upholding enhancement where the district court

concluded there was an inherent risk of serious bodily injury). Because the district

court recognized the inherent risk of serious bodily injury in staged automobile

collisions, we reject Brown’s argument that the district court was required to make

findings about the specific degree of risk created by the particular conduct attending

the collisions he staged. See Aplt. Opening Br. at 26-28; Aplt. Reply Br. at 3-4.

B. Procedural Reasonableness: Explanation for U.S.S.G. § 2B1.1(b)(16)(A)

Brown also challenges the adequacy of the district court’s explanation for

applying § 2B1.1(b)(16)(A). We review only for plain error because Brown failed to

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object to the adequacy of the district court’s explanation. See United States v.

Wireman, 849 F.3d 956, 962 (10th Cir. 2017). “We will find plain error only when

there is (1) error, (2) that is plain, which (3) affects substantial rights, and which

(4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (internal quotation marks omitted). Here, there was no error. As

described above, the district court explained that § 2B1.1(b)(16)(A) applies because

Brown admitted he staged motor vehicle wrecks, which pose an inherent risk of death

or serious bodily injury.

C. Procedural Reasonableness: Explanation for Upward Variance

Brown next challenges the district court’s upward variance from the guidelines

by 11 months based on what he says was his criminal history. Brown attributes the

variance solely to the district court’s finding that “there’s not a period of time in this

defendant’s life where he has not been involved in some kind of criminal—there’s no

period of time where he’s been doing right.” R., vol. 1 at 134-35.

We disagree. The district court determined the variance was appropriate for

several different reasons, specifically:

the repetitive and consistent nature of this fraud over a significant period of time, involving many moving parts and other people; the danger the defendant put other people into, both coconspirators, as well as possibly other innocent parties in these staged wrecks; the fact that the presentence report did not include a sophisticated means enhancement, though the Court views this scheme as definitely one that would qualify as sophisticated means, and I view that the defendant’s criminal history is underappreciated and the criminal history category is II, based on the nature of the prior contact with law enforcement and convictions.

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Id. at 132-33. The district court emphasized that the scheme could qualify for a

sophisticated-means enhancement because Brown “ordered fake odometers online, he

got those fake odometers, he stuck them into cars that he bought, he staged wrecks,

and submitted false insurance claims.” Id. at 133. Given this detailed discussion of

the circumstances warranting a variance, we reject Brown’s challenge to the

adequacy of the district court’s explanation for the 11-month variance.

We also reject Brown’s contention that a variance was inappropriate because

the guidelines already captured his criminal history. A district court is entitled to

rely on the same facts captured in the sentencing guidelines to support a variance, “so

long as it articulates specifically the reasons that this particular defendant’s situation

is different from the ordinary situation covered by the guidelines calculation.”

United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1222-23 (10th Cir. 2008)

(brackets and internal quotation marks omitted). “This explanation need not be

overly detailed.” Id. at 1223 (internal quotation marks omitted).

Here, the guidelines reflected—and the parties stipulated—that Brown’s

criminal history category was II. Still, the district court rejected Brown’s attempt to

downplay his criminal history despite his acknowledgement that “[t]here was a

period of time during which he was involved in drug dealing. He served a period of

incarceration, and then there has been . . . this period of time where he was engaged

in the fraud.” R., vol. 1 at 135. The district court observed that “there’s not a period

of time in this defendant’s life where he has not been involved in some kind of

criminal—there’s no period of time where he’s been doing right.” Id. at 134-35.

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And in its sentencing order, the district court referenced the § 3553(a) factors and

indicated a variance was warranted under § 3553(a)(1) because the guidelines

“[u]nderstated [his] criminal history.” R., vol. 2 at 114. The district court added that

“the defendant’s criminal history is not fully reflected in the criminal history

category listed in the [PSR] given his life-long and consistent criminal conduct.” Id.

at 115. Given this explanation, we are satisfied that the district court varied “from

the Guidelines after a careful, reasoned, and reasonable consideration of the

§ 3553(a) factors.” United States v. Huckins, 529 F.3d 1312, 1320 (10th Cir. 2008).

D. Substantive Reasonableness: Degree of Variance from Guideline Range

We now consider Brown’s contentions that the district court’s 11-month

variance is substantively unreasonable. “We do not apply a presumption of

unreasonableness to sentences outside the guidelines range.” Guevara-Lopez,

147 F.4th at 1184 (internal quotation marks omitted). “Instead, we give due

deference to the district court’s decision that the § 3553(a) factors, on the whole,

justify the extent of the variance.” Rocha, 145 F.4th at 1261 (brackets and internal

quotation marks omitted). Our review “focuses on the district court’s consideration

of the § 3553(a) factors and the sufficiency of the justifications used to support the

sentence.” United States v. Lawless, 979 F.3d 849, 855 (10th Cir. 2020).

Brown asserts his variance is substantively unreasonable for three reasons.

First, he disputes the district court’s determination that his scheme involved

sophisticated means. See Aplt. Opening Br. at 12-16. But the district court found

that, “given the steps involved and the deliberate – the deliberation involved in

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executing this fraud scheme, it would certainly qualify . . . as a sophisticated means.”

R., vol. 1 at 145. The district court explained that “[h]e ordered fake odometers

online, he got those fake odometers, he stuck them into cars that he bought, he staged

wrecks, and submitted false insurance claims.” Id. at 133. The district court

acknowledged “[i]t may not be a high-dollar amount, but that’s a sophisticated fraud

scheme.” Id. And in its statement of reasons for the upward variance, the district

court checked boxes referencing the nature and circumstances of the offense,

§ 3553(a)(1), as well as the need for the sentence to reflect the seriousness of the

offense, to promote respect for the law, and to provide a just punishment,

§ 3553(a)(2)(A). The district court added that, “[i]n varying above the guideline

range[, it] considered the repetitive and consistent nature of this fraud scheme over a

significant period of time, involving many moving parts and bringing other people

into this criminal activity.” R., vol. 2 at 115. The district court “also considered the

fact that the [PSR] did not include a sophisticated means enhancement that . . . would

have been appropriate given the multiple steps and deliberation involved in executing

the fraud scheme.” Id. This discussion of the relevant § 3553(a) factors justifies the

11-month variance based on the sophistication of the conspiracy. 1

1 Brown expends considerable effort insisting that to apply the sophisticated means enhancement under U.S.S.G. § 2B1.1(b)(10)(C), the district court was required to find the conspiracy was “especially complex.” See Aplt. Br. at 12-16. But the district court did not apply § 2B1.1(b)(10)(C); it observed the fraud scheme would qualify as involving sophisticated means, given the complexity involved in the number of steps Brown used to execute the scheme, including his efforts to obtain and replace or roll back odometers, install them in the vehicles, enlist coconspirators, intentionally stage wrecks, and then submit false insurance claims. See R., vol. 1 at 9 Appellate Case: 25-7026 Document: 29-1 Date Filed: 12/30/2025 Page: 10

Second, building on his procedural argument, Brown contends the variance

was substantively unreasonable because the guidelines accounted for his criminal

history. He also says there was no factual basis for the district court’s finding that

“there’s no period of time where he’s doing right.” Aplt. Opening Br. at 18 (internal

quotation marks omitted). But the district court reviewed the facts in the PSR, which

chronicles Brown’s extensive arrest and conviction record. The district court varied

upward based on those facts, citing both his history and characteristics, § 3553(a)(1),

and the need to protect the public, § 3553(a)(2)(C). The district court explained that

Brown’s “criminal history is not fully reflected in the criminal history category listed

in the [PSR] given his life-long and consistent criminal conduct.” R., vol. 2 at 115.

In light of this explanation, Brown fails to show the district court abused its

discretion in imposing the 11-month variance based on his extensive criminal record.

Finally, Brown says the variance was based on the danger to the public, which

was already captured in the enhancement for the risk of death or serious bodily

injury. See Aplt. Opening Br. at 19. He also maintains that there was no evidence he

created a risk of death or serious bodily injury. Id. at 20. This latter point is

unavailing because the district court recognized the risk of death or serious bodily

injury was inherent in the staged car wrecks. See Guevara-Lopez, 147 F.4th at 1183

132-33, 145. The district court observed that these considerations, combined with the repetitive and consistent nature of the scheme over a significant period of time, along with other factors, supported the 11-month variance. Because the district court did not apply the sophisticated-means enhancement at § 2B1.1(b)(10)(C), there was no need to find the conspiracy was “especially” complex. 10 Appellate Case: 25-7026 Document: 29-1 Date Filed: 12/30/2025 Page: 11

(“A cogent and reasonable explanation for a sentence makes that sentence more

likely within the bounds of reasonable choice . . . .” (internal quotation marks

omitted)). And we reject Brown’s assertion that the variance was substantively

unreasonable because the dangerousness of the offense was captured in the

enhancement. The enhancement and the variance are not coterminous. The

enhancement applies because Brown’s offenses involved an inherent risk of death or

serious bodily injury. As the district court explained, the staged collisions, by their

very nature, risked hurting people. But the variance was much broader. As the

district court noted, the variance reflects the dangerousness of the offense and the

need to protect the public, § 3553(a)(2)(c). R., vol. 2 at 114. Indeed, the district

court explained the variance was to account for the “danger that [Brown’s] activities

presented to other people in staging automobile wrecks.” Id. at 115. The district

court also cited the nature and circumstances of the offense, § 3553(a)(1), including

the repetitive nature of the fraud over a long period of time, the number of co-

conspirators involved, the complexity and sophistication of the conspiracy, and

Brown’s underrepresented criminal history. Given all these distinct considerations,

we cannot say the variance was substantively unreasonable.

III

The district court’s judgment is affirmed.

Entered for the Court

Carolyn B. McHugh Circuit Judge