United States v. Jermaine Courtney Brown

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 11, 2020
• Docket: 19-10469
• Status: Unpublished

Opinion

Case: 19-10469 Date Filed: 03/11/2020 Page: 1 of 13

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-10469 Non-Argument Calendar ________________________

D.C. Docket No. 4:18-cr-00019-HLM-WEJ-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JERMAINE COURTNEY BROWN,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(March 11, 2020)

Before WILSON, BRANCH, and HULL, Circuit Judges.

PER CURIAM: Case: 19-10469 Date Filed: 03/11/2020 Page: 2 of 13

Jermaine Brown appeals his 37-month within-guidelines sentence, imposed

after he pleaded guilty to possession of a firearm as a convicted felon. Brown

contends that his sentence is procedurally unreasonable because the district court

considered contested factual allegations that Brown was a member of the Gangster

Disciples (“GD”) street gang. Because Brown did not clearly contest the

undisputed portion of the Presentence Investigation Report (“PSI”) alleging his

involvement with GD, and because photographs found on Brown’s phone

supported the district court’s findings, the district court did not abuse its discretion.

Accordingly, we affirm.

I. BACKGROUND

On January 30, 2018, after a short foot chase, two police officers from the

Cedartown, Georgia Police Department arrested Brown on an active warrant.

During the arrest, the officers recovered a loaded .45 caliber semi-automatic

handgun, approximately 26.9 grams of marijuana, and a digital scale with

marijuana residue from Brown’s pants. The officers also recovered Brown’s

cellular phone, which he had discarded during the chase.

Federal Bureau of Investigation (“FBI”) agents who, based on Brown’s past

contacts with law enforcement, believed that he was affiliated with the GD street

gang, obtained a warrant and searched his phone. They found a photograph of

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Brown holding a firearm and several photographs of him “wearing clothing and

jewelry consistent with what is typically worn by members of the [GD] street

gang.”

Thereafter, Brown was charged with possession of a firearm by a convicted

felon, in violation of 18 U.S.C. §§ 922(g)(1)1 and 924(a)(2).2 In September 2018,

Brown pleaded guilty to this charge.

After his guilty plea, and prior to sentencing, a United States probation

office prepared a PSI. Pursuant to U.S.S.G. § 2K2.1(a)(6)(A), the probation officer

assigned a base offense level of 14 for Brown’s violation of 18 U.S.C. § 922(g).

The probation officer increased Brown’s offense level by four points for

possessing a firearm in connection with another felony offense, pursuant to

U.S.S.G. § 2K2.1(b)(6)(B). The probation officer then decreased Brown’s offense

level by 3 points for acceptance of responsibility, pursuant to U.S.S.G. §§ 3E1.1(a)

and (b), arriving at a total offense level of 15. With a total offense level of 15 and

a criminal history category of IV, Brown’s guideline imprisonment range was 30 to

1 “It shall be unlawful for any person— (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce” 18 U.S.C. § 922(g)(1). 2 “Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.” 18 U.S.C. § 924(a)(2). 3 Case: 19-10469 Date Filed: 03/11/2020 Page: 4 of 13

37 months. Additionally, the PSI indicated that the search of Brown’s phone

“revealed a photograph of [Brown] holding a firearm and several photos of [him]

wearing clothing and jewelry consistent with what is typically worn by members of

the [GD] street gang.”

Brown only objected to the four-level increase in his offense level. He

argued that he was in possession of less than an ounce of marijuana, which is a

misdemeanor in Georgia, and, therefore, he did not possess a firearm in connection

with another felony offense. Alternatively, he argued that a downward variance

was appropriate because his offense level overstated the seriousness of the offense.

Notably, he did not object to paragraph 11 of the PSI: the contention that he was a

member of the GD street gang and that he was the individual in the photographs.

The government submitted a sentencing memorandum recommending a

sentence of 37 months regardless of whether the district court sustained Brown’s

objection; it also recommended against a downward variance. The government

noted in the memorandum that it did “not intend to call any witnesses at the

sentencing hearing unless [Brown] disputes any of the facts contained herein.”

The government contended that the four-level increase in Brown’s offense level

was appropriate because the loaded handgun, digital scale, and evidence that he

was a GD member indicated that Brown possessed the marijuana with intent to

distribute. The government also argued that, due in large part to Brown’s GD

4 Case: 19-10469 Date Filed: 03/11/2020 Page: 5 of 13

membership, the 18 U.S.C. § 3553(a) factors supported a sentence at the high end

of the guidelines range to promote respect for the law, deter criminal conduct, and

protect the public. As part of the sentencing memorandum, the government

submitted various photographs retrieved from Brown’s phone, which they stated

supported Brown’s membership in the GD street gang. Brown did not object to the

sentencing memorandum.

At sentencing, the district court stated that it had reviewed the plea colloquy;

indictment; guilty plea; PSI; objections, comments, and addendum to the PSI; and

the government’s sentencing memorandum. It adopted “all of the findings of fact

and conclusions contained in the [PSI][,]” except as to the unresolved guidelines

issues, and invited the parties to argue the four-point increase in Brown’s offense

level for possession of a firearm in connection with a felony offense. While

arguing that the four-level increase was not appropriate because Brown possessed

less than one ounce of marijuana for his own personal use, Brown’s counsel stated,

in relevant part, “we don’t concede he’s a member of a gang.” After hearing

arguments on the issue, the district court found that the four-point enhancement

was appropriate.

The government then argued for a sentence at the high end of the guideline

range based on the circumstances surrounding Brown’s offense and his criminal

history, including the failure of his past sentences to rehabilitate him. Lastly, the

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government argued that Brown’s involvement in the GD street gang warranted a

high-end sentence. In relevant part, it stated that

[I]t’s the government’s position and it’s our allegation that the defendant is a member of this gang and I expect and anticipate that he would say he’s not, but I think the photographs are quite clear with regard to his membership . . . [I]f [Brown’s GD membership] is in dispute in any way, again, as I mentioned before, the police officers are here who have encountered not only this defendant on numerous occasions and know him to be a member of this gang, but the police officers also know quite a number of his fellow gang members who are depicted in the photograph – the different photographs that were found on his cell phone and that were submitted to this [c]ourt with the sentencing memoranda and some of them have been verified as gang members.

Brown then argued that the government had overstated the seriousness of his

offense, and his criminal history was not that of “somebody who is some kind of

major gang player, somebody who is out running around terrorizing communities

or dealing drugs or doing the kind of things that stereotypical gang members do.”

Thus, he argued that the government was trying to “tar him with some kind of guilt

by association that . . . the [GD] are there, he might know somebody or he might be

associated with some of these people and, as a result, he’s doing their activity and

his record just does not reflect that.” He then requested a 30-month sentence.

Brown declined to make a statement to the court. The district court then

sentenced Brown to a term of 37 months’ imprisonment—at the high end of the

advisory guideline range—followed by 3 years of supervised release. The district

court then explained that it imposed a sentence at the high end of the applicable 6 Case: 19-10469 Date Filed: 03/11/2020 Page: 7 of 13

guideline range for “several reasons,” including because Brown’s criminal history

was “serious,” and

[m]ost importantly is the fact that it’s undisputed by looking at the photographs that were contained in his cell phone that he is a member of the gang—an active member of that gang, gladly participating in it, showing himself with pictures of some of his fellow gang members and clearly showing his love of weapons and his love of membership in that gang by his wearing the appropriate paraphernalia showing and exposing his membership.

The district court then asked the parties to state any objections for the record.

Brown objected, arguing, in relevant part, that the sentence was both procedurally

and substantively unreasonable and that the finding the district court made related

to Brown’s membership in GD was not supported by the record. Brown timely

appealed contending that his sentence is procedurally unreasonable.3

II. STANDARD OF REVIEW

We review the reasonableness of a sentence under a deferential abuse of

discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007); United States v.

Irey, 612 F.3d 1160, 1188 (11th Cir. 2010) (en banc); United States v. Gonzales,

550 F.3d 1319, 1323–1324 (11th Cir. 2008). The district court abuses its

discretion, and commits a significant procedural error, by selecting a sentence

based on clearly erroneous facts or following improper procedures. Gall, 552 U.S.

at 51. A factual finding is clearly erroneous when a review of all the evidence

3 We note that Brown did not appeal whether his sentence is substantively reasonable. 7 Case: 19-10469 Date Filed: 03/11/2020 Page: 8 of 13

leaves us “with the definite and firm conviction that a mistake has been

committed.” United States v. Philidor, 717 F.3d 883, 885 (11th Cir. 2013)

(quotation omitted). Although this standard is deferential, “a finding of fact must

be supported by substantial evidence.” United States v. Robertson, 493 F.3d 1322,

1330 (11th Cir. 2007).

III. DISCUSSION

On appeal, Brown argues that his sentence is procedurally unreasonable

because the district court erred in relying solely on “factual assertions of the AUSA

[regarding Brown’s affiliation with GD] and then based its sentencing decisions on

those factual findings.” In response, the government argues that the district court

did not rely solely on factual assertions by the AUSA at the sentencing hearing, but

rather on uncontested factual allegations in the PSI contained in paragraph 11.

Brown replies that even if he had failed to timely object to PSI paragraph 11, under

Federal Rule of Criminal Procedure 32(i)(1)(D)4 his statements at the sentencing

hearing were sufficient to make his membership in GD a contested factual issue

and the district court procedurally erred by relying on that allegation without ruling

on the objection or requiring the government to prove the disputed fact.

4 A district court “may, for good cause, allow a party to make a new objection at any time before sentence is imposed.” Fed. R. Crim. P. 32(i)(1)(D). 8 Case: 19-10469 Date Filed: 03/11/2020 Page: 9 of 13

If no party objects to allegations of fact contained in a PSI, the fact is

admitted for sentencing purposes. United States v. Wade, 458 F.3d 1273, 1277

(11th Cir. 2006). Furthermore, objections to facts in the PSI “must be asserted

with specificity and clarity . . . [o]therwise, the objection is waived.” United States

v. Bennett, 472 F.3d 825, 832 (11th Cir. 2006). Vague assertions of inaccuracies

are not enough to raise a factual dispute. United States v. Ramirez-Flores, 743

F.3d 816, 824 (11th Cir. 2014). “This requirement is not gratuitous; rather, it

ensures that the government has an opportunity to address or correct the alleged

error” Id. If a defendant fails to object properly, the burden does not shift to the

government to prove the disputed facts by a preponderance of the evidence.

Bennett, 472 F.3d at 832 (“A sentencing court's findings of fact may be based on

undisputed statements in the PSI. Where a defendant objects to the factual basis of

his sentence, the government has the burden of establishing the disputed fact. ...

Otherwise, the objection is waived.”).

Here, Brown clearly and specifically objected to the four four-level increase

in his offense level and argued that a downward variance was appropriate. But he

failed to object to the factual assertion in the PSI that he was a member of GD and

was the person portrayed in several gang-style photographs. Accordingly, under

this Court’s rulings, those facts were admitted for sentencing purposes. See Wade,

458 F.3d at 1277.

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Nonetheless, the district court “may, for good cause, allow a party to make a

new objection at any time before sentence is imposed.” Fed. R. Crim.

P. 32(i)(1)(D). Thus, we look to see if Brown, during the sentencing hearing, made

clear and specific objections sufficient to shift the burden to the government to

prove the assertion that he was a member of GD and that he was the person

portrayed in several gang-style photographs. Brown asserts that he made three such

objections.

First, Brown points to his statement that he did not “concede he’s a member

of a gang . . .” But that general statement did not put the fact of his alleged

membership in the GD street gang in dispute because it was not a clear or specific

assertion of an objection to that specific factual allegation. Rather, Brown made

this statement in response to the government’s assertion that Brown possessed the

firearm in relation to a felony offense—namely, possession of marijuana with

intent to distribute. To be clear, although the government may have referred to

Brown’s membership in the GD street gang when arguing that the four-level

sentencing enhancement was appropriate, the assessment of the four-level

enhancement was a separate and distinct issue from whether Brown was in the GD

street gang. Furthermore, throughout the hearing, the government and the district

court indicated that they believed Brown was not challenging the assertion that he

was a gang member. Brown also remained silent at the sentencing hearing when

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the government informed the court that it could present evidence, including several

witnesses, regarding Brown’s gang membership if he disputed it. 5 Nor did Brown

respond when the government initially represented its willingness in its sentencing

memorandum to call witnesses at the hearing if Brown disputed any facts. Thus,

even if Brown intended to object to the factual finding concerning his gang

membership, he did not communicate that intent sufficient to alert either the

district court, or the government, thereby depriving the government of the

opportunity to correct the alleged error before the sentence was imposed. Ramirez-

Flores, 743 F.3d at 824. “To hold otherwise would oblige the district court to

guess whether a challenge is being mounted as well as what defendant wishes to

contest.” See United States v. Aleman, 832 F.2d 142, 145 (11th Cir. 1987).

Second, Brown argues he contested the gang membership allegation by

stating that his criminal history was not that of “somebody who is some kind of

major gang player, somebody who is out running around terrorizing communities

or dealing drugs or doing the kind of things that stereotypical gang members do.”

That statement does not rise to a clear and specific objection. From a plain

5 “But if that is in dispute in any way, again, as I mentioned before, the police officers are here who have encountered not only this defendant on numerous occasions and know him to be a member of this gang, but the police officers also know quite a number of his fellow gang members who are depicted in the photograph[s]. . .” 11 Case: 19-10469 Date Filed: 03/11/2020 Page: 12 of 13

reading, Brown argued that he was not a “major gang player,” not that he is not a

gang member at all.

Third, Brown argues he contested the allegation when he stated “that the

finding the Court made related to gang membership and participation, despite the

photos, was not supported by the record.” That objection was done after the

sentence had been imposed.

Moreover, Brown never challenged the ownership of the cellular phone, the

photographs found on the phone, or the PSI’s factual assertions that the clothing

and jewelry he was wearing in the photographs were consistent with that typically

worn by GD members. Because these facts were admitted for sentencing purposes,

see Wade, 458 F.3d at 1277, the district court properly relied rely on them in

determining that Brown was affiliated with GD, see 18 U.S.C. § 3661.6

Considering the above, the district court’s finding that Brown was a GD

member was not clearly erroneous, because photographs recovered from Brown’s

phone and an undisputed portion of the PSI supported the finding. Robertson, 493

F.3d at 1330. The district court, then, did not abuse its discretion when it relied on

this finding of fact in determining Brown’s sentence. 18 U.S.C. § 3661.

6 “No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661. 12 Case: 19-10469 Date Filed: 03/11/2020 Page: 13 of 13

Accordingly, we conclude that Brown’s sentence was not procedurally

unreasonable, and we affirm.

AFFIRMED.