United States v. Glenn Browne

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 16, 2019
• Docket: 17-50246
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 16 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50246

Plaintiff-Appellee, D.C. No. 8:16-cr-00139-CJC-1 v.

GLENN DESHAWN BROWNE, AKA MEMORANDUM* Glenn Deshawne Browne, AKA Tay Tay,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding

Submitted July 12, 2019** Pasadena, California

Before: M. SMITH and FRIEDLAND, Circuit Judges, and SIMON,*** District Judge.

Defendant-Appellant Glenn Deshawn Browne (“Browne”) appeals the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Michael H. Simon, United States District Judge for the District of Oregon, sitting by designation. district court’s denial of his motion to suppress and his subsequent sentence for

various firearms-related convictions. We affirm both the denial of the motion to

suppress and the denial of a mitigating role adjustment under section 3B1.2 of the

United States Sentencing Guidelines (“U.S.S.G.”), but we remand for the district

court to recalculate Browne’s sentence after applying the appropriate base offense

level.

Browne argues that the officers’ warrantless search of the vehicle’s

passenger compartment exceeded what is permissible under Michigan v. Long, 463

U.S. 1032 (1983), and that this Fourth Amendment violation requires suppression

of the pistol the officers discovered in the search.1 Browne concedes, however,

that he did not raise this ground for suppression below. Consequently, without a

showing of good cause, he cannot advance that theory for the first time on appeal.

See United States v. Guerrero, 921 F.3d 895, 897-98 (9th Cir. 2019). Browne has

not made such a showing, so we affirm the district court’s denial of the motion to

suppress.

1 Although he challenged the justification for the stop below, Browne conceded on appeal that the officers had reasonable suspicion to conduct a protective sweep. His other arguments on appeal—such as whether he has standing to challenge the search, whether the Government could further search the vehicle under the automobile exception, and whether the error in denying the motion to suppress was prejudicial—are irrelevant if the firearm was properly obtained through a protective sweep. Consequently, his suppression argument rises and falls with his challenge to the scope of the sweep.

2 Browne also challenges his sentence, arguing that the district court plainly

erred by applying a base offense level of 24 under U.S.S.G. § 2K2.1(a)(2) rather

than a base offense level of 20 under U.S.S.G. § 2K2.1(a)(4)(A), and that the court

improperly rejected his request for a minor-role adjustment under U.S.S.G.

§ 3B1.2. The Government agrees with Browne that the district court relied on an

incorrect base offense level, and that remand for resentencing is warranted so that

the district court can calculate Browne’s sentence with the proper base offense

level. We thus remand for that purpose.

Because the minor-role adjustment issue is likely to arise again on remand,

we address it here. See United States v. Lee, 725 F.3d 1159, 1161 (9th Cir. 2013).

We do not agree with Browne that the district court clearly erred in concluding that

the burglary preceding the conspiracy for which he was convicted was not

“relevant conduct” or, accordingly, in denying a minor role adjustment. See

United States v. Hahn, 960 F.2d 903, 907 (9th Cir. 1992)) (“Whether conduct

extraneous to an offense of conviction is . . . ‘relevant conduct’ within the meaning

of [the Guidelines] is reviewed for clear error.”). Browne entered the conspiracy to

sell the guns after the burglary had already occurred, so it was logical to ignore that

act when considering his role in the conspiracy. Furthermore, Browne was

substantially involved in helping to sell the guns, including arranging the sale and

assisting with delivery of the firearms. These facts sufficiently supported the

3 district court’s conclusion that Browne was not “substantially less culpable than

the average participant” in the conspiracy. See United States v. Quintero-Levya,

823 F.3d 519, 521 (9th Cir. 2016) (quoting U.S.S.G. § 3B1.2, cmt. n.3(A)).

AFFIRMED in part, VACATED in part and REMANDED in part.