U.S. v. Brown

• Decision Date: 06 January 2003
• Docket Number: No. 02-5007.,02-5007.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Jerome BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

314 F.3d 1216

UNITED STATES of America, Plaintiff-Appellee, v. Michael Jerome BROWN, Defendant-Appellant.

No. 02-5007.

United States Court of Appeals, Tenth Circuit.

January 6, 2003.

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Timothy Lee Faerber, Assistant United States Attorney (David E. O'Meilia, United States Attorney, on the brief), Tulsa, OK, for Plaintiff-Appellee.

Art Fleak, Tulsa, OK, for Defendant-Appellant.

Before EBEL, BALDOCK, and KELLY, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

Defendant-Appellant Michael Jerome Brown was convicted by a jury of a single count of possession of a firearm after having been convicted of a crime punishable by a term of imprisonment exceeding one year in violation of 18 U.S.C. § 922(g)(1). He was sentenced to a term of imprisonment of 120 months followed by three years of supervised release, and ordered to pay a $1,000 fine.

On appeal, Mr. Brown challenges his conviction on the basis that § 922(g)(1) is unconstitutional as applied in this case because the government was not required to prove the gun possession had any actual or substantial effect on interstate commerce. He challenges his sentence on the basis that the district court erred (1) by enhancing his sentence pursuant to U.S.S.G. § 3C1.2 for reckless endangerment during flight; (2) by enhancing his sentence pursuant to U.S.S.G. § 2K2.1(b)(5) for possessing a firearm in connection with another felony offense; (3) by failing to make particularized findings in response to his objections to the Presentence Report ("PSR") and by failing to reduce those findings to writing; and (4) by ordering him to pay a $1,000 fine when it was clear that he had no ability to pay a fine. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), affirm the conviction and sentence, and remand to the district court to enter a determination pursuant to Fed.R.Crim.P. 32(c)(1).

Background

On May 8, 2000, Mr. Brown escaped from the Oklahoma County Jail in Oklahoma City, Oklahoma. He traveled to Tulsa, Oklahoma and ended up in an apartment occupied by Gwendolyn King on the evening of May 8. While there, Mr. Brown removed his shirt and Ms. King noticed a gun in his belt. She asked him to remove the clip and unload the gun. Mr. Brown went into the bathroom and returned with the gun in his front right pocket.

Upon waking up on May 9, 2000, Ms. King discovered that Mr. Brown was still in the apartment. She told him that he needed to leave, but Mr. Brown declined. Ms. King then went outside and informed an apartment security guard that Mr. Brown was in her apartment with a gun and refused to leave. Tulsa law enforcement had previously informed the security guard that a person wanted by the police was believed to be in the area, so he called the Tulsa police about Ms. King's complaint. Upon instructions from the guard, Ms. King returned to the apartment and asked Mr. Brown to accompany her to the store. As they exited the apartment, Ms. King noted that Mr. Brown had the gun with him.

Outside the apartment, the Tulsa police had arrived in response to the security guard's call. One of the uniformed Tulsa police officers spotted Mr. Brown and requested to speak to him. Mr. Brown "shoved his hands deep down into his pockets," VI R. at 114, and the officer ordered him to show his hands. Mr. Brown removed and showed his left hand. Upon receiving further commands to show his right hand, Mr. Brown removed his right hand and the gun from his pocket. Having spotted the pistol, the officer shouted "gun" to warn the multitude of bystanders in the area and dove for cover. VI R. at 115. At this point, Mr. Brown took off running through the apartment complex.

The officer pursued with his own weapon drawn, shouting "he's got a gun." VI R. at 116. Mr. Brown ran past a pool and rounded a corner, stopping quickly on the other side to hide his gun in a water turn-off hole. Following close behind, the officer approached the corner and executed a tactical "weaver" maneuver to traverse the corner safely. Upon turning the corner, the officer encountered approximately ten children, ranging in age from five to thirteen years old, disembarking a school bus and pointing to the gun lying in the water turnoff hole, shouting "there it is." VI R. at 181. As the officer stopped to recover the gun from the hole, Mr. Brown fled the area. Later that day, Mr. Brown was found hiding in a vacant apartment and was arrested.

Discussion

Under § 922(g)(1), it is unlawful for any person:

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). Whoever knowingly violates § 922(g) "shall be fined as provided in this title, imprisoned not more than 10 years, or both." 18 U.S.C. § 924(a)(2).

I. Constitutionality of § 922(g)(1)

Mr. Brown first argues that his conviction should be overturned because § 922(g)(1) is unconstitutional as applied in this case since the government was not required to prove the gun possession had any actual or substantial effect on interstate commerce. At trial, the government showed only that the gun was manufactured in California, was in Mr. Brown's possession in Oklahoma, and therefore must have traveled in interstate commerce at some point. Aplt. Br. at 13. Mr. Brown believes that his conviction under § 922(g)(1) requires some evidence of a commercial or transactional aspect to his possession. Id. To support his argument, Mr. Brown points to a trend of the United States Supreme Court of limiting the federal government's reach under the Commerce Clause, demonstrated in his view by two cases, Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000).

We review challenges to the constitutionality of a statute de novo. United States v. Bolton, 68 F.3d 396, 398 (10th Cir.1995). Mr. Brown acknowledges that his argument "might be foreclosed" by our holding in United States v. Dorris, 236 F.3d 582 (10th Cir.2000), but seeks to preserve the argument for review by the Supreme Court. Aplt. Br. at 12. In Dorris, after thoroughly reviewing Morrison and Jones, we explicitly rejected an argument substantially similar to Mr. Brown's and held that the government has no duty to prove that the gun possession had any actual or substantial effect on interstate commerce. 236 F.3d at 584-86.

"We cannot overrule the judgment of another panel of this court. We are bound by the precedent of prior panels absent en banc reconsideration or a superseding contrary decision by the Supreme Court." In re Smith, 10 F.3d 723, 724 (10th Cir.1993). Because Mr. Brown cites no Supreme Court authority other than Morrison and Jones, which Dorris specifically considered, his argument regarding the constitutionality of § 922(g)(1) is indeed foreclosed. Accordingly, we conclude that Mr. Brown's conviction under § 922(g)(1) does not violate the Commerce Clause.

II. Enhancement for Reckless Endangerment

Next, Mr. Brown argues that the district court erred by enhancing his sentence pursuant to U.S.S.G. § 3C1.2 for reckless endangerment during flight. Our review of the district court's determination that Mr. Brown's flight constituted reckless endangerment is deferential; we will disturb that finding only if it is clearly erroneous. United States v. Conley, 131 F.3d 1387, 1389 (10th Cir.1997); 18 U.S.C. § 3742(e). Evidence underlying a district court's sentence is reviewed by viewing the evidence, and inferences drawn therefrom, in the light most favorable to the district court's determination. Conley, 131 F.3d at 1389.

Section 3C1.2 of the Sentencing Guidelines provides that "[i]f the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer, increase by 2 levels." U.S.S.G. § 3C1.2. For purposes of § 3C1.2,

"Reckless" refers to a situation in which the defendant was aware of the risk created by his conduct and the risk was of such a nature and degree that to disregard that risk constituted a gross deviation from the standard of care that a reasonable person would exercise in such a situation.

U.S.S.G. § 2A1.4 cmt. n. 1 (referred to by U.S.S.G. § 3C1.2 cmt. n. 2). The standard of care envisioned by the Guidelines is that of the reasonable person, not the reasonable fleeing criminal suspect. Conley, 131 F.3d at 1389.

The district court found that while Mr. Brown was "trying to escape," he "disposed of the gun" in a water turn-off hole. VII R. at 11. The court found that such disposal "had to be in the presence of the children" getting off the bus because "it was the children that told the officers where the gun was." Id. at 12. Thus, because Mr. Brown disposed of the gun in such a way as to make it "accessible to children that are in grade school," the court found that such conduct clearly placed the children in grave danger, noting how fortunate it was that the children told the officer where the gun was "so that they would not later have gotten that gun and shot somebody and themselves." Id.

We conclude that the record fully supports the district court's findings and we conclude that the district court's ultimate determination that Mr. Brown's conduct amounted to reckless endangerment is not clearly erroneous. Such conduct undoubtedly created a substantial risk of death or serious bodily injury to those children and to the other bystanders around the complex, and was certainly a gross deviation from the standard of care that a reasonable person would exercise in such a situation. Mr. Brown's argument that his conduct constituted only ...