United States v. James Brown

808 F.3d 865, 420 U.S. App. D.C. 326, 2015 U.S. App. LEXIS 21638, 2015 WL 8743992
CourtCourt of Appeals for the D.C. Circuit
DecidedDecember 15, 2015
Docket13-3062
StatusPublished
Cited by16 cases

This text of 808 F.3d 865 (United States v. James Brown) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. James Brown, 808 F.3d 865, 420 U.S. App. D.C. 326, 2015 U.S. App. LEXIS 21638, 2015 WL 8743992 (D.C. Cir. 2015).

Opinions

Opinion for the Court filed by Senior Circuit Judge EDWARDS.

Dissenting opinion filed by Senior Circuit Judge SENTELLE.

EDWARDS, Senior Circuit Judgé:

The Sentencing Reform Act of 1984, governing imposition of criminal sentences in federal courts, 18 U.S.C. § 3551 et seq., imposes certain “indispensable” procedural obligations on sentencing judges. In re Sealed Case, 527 F.3d 188, 191 (D.C.Cir.2008). Among these obligations are the requirements of 18 U.S.C. § 3553(c), which prescribe how trial judges must explain their sentencing decisions. See id.

The nature and degree of explanation required by § 3553(c) varies depending on how a proposed sentence compares to the recommended sentencing range calculated under the advisory United States Sentencing Guidelines (“Guidelines”). When the District Court imposes a term of incarceration that is outside the Guidelines range, as is the case here, it “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Gall v. United States, 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In addition, the trial judge must, in open court, state “the specific reason for the imposition of a sentence different from that described” by the appropriate Guidelines calculation. 18 U.S.C. § 3553(c)(2). Section 3553(c)(2) additionally requires that those reasons “be stated with specificity” in writing. Moreover, when the prison term imposed is above the properly [867]*867calculated advisory Guidelines range, the district judge must “state ‘the specific reason’ ... why the defendant’s conduct was more harmful or egregious than' the typical case” represented by that range. United States v. Nicely, 492 Fed.Appx. 119, 121 (D.C.Cir.2012) (quoting 18 U.S.C. § 3553(c)(2)) (citing United States v. Akhigbe, 642 F.3d 1078, 1086 (D.C.Cir.2011) and In re Sealed Case, 527 F.3d at 192). “This ... precedent reflects the Supreme Court’s interpretation of the Sentencing Act’s requirements in Gall, 552 U.S. at 49-51, 128 S.Ct. 586, and Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007).” Nicely, 492 Fed.Appx. at 121.

Before the District Court, appellant James Brown pled to one count of distribution of child pornography based on the internet transmission of three photographs in violation of 18 U.S.C. § 2252A(a)(2). The offense is punishable by a mandatory minimum of no less than five years of imprisonment and no more than 20 when, as here, a defendant has no prior convictions of a similar nature. See 18 U.S.C. § 2252A(b)(l). The Guidelines sentencing range applicable to Brown is 97 to 121 months, reflecting an eleven-level increase based on four offense-characteristic enhancements and one three-level reduction. Government and defense counsel both argued for a bottom of the range 97-month (eight years and one month) term of incarceration. The trial judge sentenced Brown to 144 months (12 years) to be followed by 240 months (20 years) of supervised release. This period of incarceration exceeded the high end of the Guidelines range by 23 months and the low end by 47 months.

Brown offers two procedural arguments in support of his contention that his sentence was illegally imposed. First, he argues that the above-Guidelines sentence should be set aside because it resulted from the trial judge’s mistaken belief that the applicable Guidelines calculation did not take account of a five-level offense-characteristic enhancement to which Brown admitted as part of his plea. For the reasons discussed below,, we find that this contention is not supported by the record.

Brown also argues that the District Court’s explanation of the above-Guidelines sehtence was insufficient as a procedural matter under § 3553(c)(2). We agree. Because we are unable to discern from the trial judge’s unparticularized in-court and written explanations why he found the defendant’s conduct more harmful or egregious than that typically falling within the properly calculated Guidelines range of 97 to 121 months, the sentence violates § 3553(c)(2). See Akhigbe, 642 F.3d at 1086-88. Although Brown failed to preserve a § 3553(c)(2) challenge, the District Court’s clearly insufficient explanation of the sentence meets the four-part plain error test under the law of the circuit. See id. at 1087-88 (citing In re Sealed Case, 527 F.3d at 193). We therefore exercise our discretion to notice the error, vacate the sentence, and remand for resentencing.

Appellant also challenges the substantive reasonableness of his sentence. Because we are unable to discern the sentencing judge’s rationale for imposing an above-Guidelines sentence, wé are unable to address appellant’s substantive claim. See Gall, 552 U.S. at 51, 128 S.Ct. 586.

I. Background

Brown’s plea was the result of an online conversation that he initiated with a Metropolitan Police Department undercover detective in March of 2012. During that conversation, Brown expressed an interest in meeting the detective’s fictional 12-[868]*868year-old daughter for the purpose of engaging in sexual acts. He also described sexual acts that he had previously engaged in with his then three-year-old granddaughter and sent the detective three images of child pornography. During the subsequent investigation into the online chat, law enforcement authorities confirmed that there were open charges in Fauquier County, Virginia, involving allegations that appellant had sexually abused two of his granddaughters. The U.S. Attorney’s Office additionally learned that Brown’s 14-year-old daughter had, at age six, alleged that when she was approximately three years old Brown had sexually abused her. Statement of the Offense, reprinted in Joint Appendix (“J.A.”) 33-37.

The Government charged Brown by information with one count of distribution of child pornography. Brown entered a pre-indictment plea on January 30, 2013, based on a Statement of the Offense that included facts supporting the allegations that Brown had sexually abused his daughter and granddaughters. At some point before the sentencing date, the prosecutor and defense counsel realized that the plea agreement included a stipulation to an incorrect Guidelines calculation. The parties’ agreement listed five offense-characteristic enhancements. First Plea Agreement, reprinted in J.A. 16-17. One, a four-level enhancement for pornography involving masochistic material, was mistakenly included without a basis in either law or fact. See Plea Tr., reprinted in J.A. 86-88; see also Sent. Tr.,

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Bluebook (online)
808 F.3d 865, 420 U.S. App. D.C. 326, 2015 U.S. App. LEXIS 21638, 2015 WL 8743992, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-james-brown-cadc-2015.