U.S. v. Brown

• Decision Date: 29 April 2008
• Docket Number: No. 05-16128.,05-16128.
• Citation: 526 F.3d 691
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Joseph BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

526 F.3d 691

UNITED STATES of America, Plaintiff-Appellee, v. James Joseph BROWN, Defendant-Appellant.

No. 05-16128.

United States Court of Appeals, Eleventh Circuit.

April 29, 2008.

Margaret Y. Foldes, Asst. Fed. Pub. Def., Kathleen M. Williams, Fed. Pub. Def., Miami, FL, for Brown.

Harriett R. Galvin, Anne R. Schultz, Asst. U.S. Atty., Dawn Bowen, Daniel L. Rashbaum, Miami, FL, for U.S.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, FAY and SILER,^* Circuit Judges.

TJOFLAT, Circuit Judge:

Pursuant to a plea agreement, James Joseph Brown pled guilty to using a facility and means of interstate commerce to entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). The district court sentenced him to prison for a term of 235 months. He now appeals his conviction and sentence.

I.

A.

On April 30, 2004, at around 7:30 a.m., Brown, who was logged onto an America Online chat room called "Fam Taboo," initiated a conversation via Instant Messenger with an undercover St. Lucie County, Florida, Sheriff's Office detective posing as a member of the chat room.¹ The St. Lucie County Sheriff's Office was participating in a multi-agency task force (the "Task Force") involving federal, state, and local law enforcement agencies, that investigated Internet crimes against children. Among other things, the Task Force was monitoring Internet chat rooms, including Fam Taboo. They suspected that members of the Fam Taboo chat room were involved with incest and the trading of child pornography.

During his initial conversation with the detective, Brown identified himself as "dad of 13 and 17 daughters" and asked the detective if he had "family fun." Brown identified his interests as "work, sex, camping, sex, nudist, sex, harleys, sex, lol and my daughters" and asked the detective how long he had been "playing" with his "daughter," whom the detective had described as being fourteen years old and mentally ill. Brown expressed an interest in having sex with her and inquired: "would you trade her? ... I mean if I brought my girl [for you to have sexual intercourse with] ... would you swap yours I'm being very real."² Brown and the detective discussed meeting later that day, at which point Brown explained that he would not be able to bring his daughter to the meeting, as she was in school, but offered the detective $100 to have sexual intercourse with his daughter. The detective agreed to this proposal, and Brown ended the online conversation by giving him his telephone number and asking him to call.

The detective called within an hour, and Brown again expressed an interest in sexual intercourse with the detective's daughter. They arranged a meeting at a Holiday Inn in Fort Pierce. Brown lived in Pompano Beach, 100 miles away, so it would take him about two hours to get there. He told the detective that he should arrive at the Holiday Inn shortly before 11:00 a.m. Brown provided a physical description of himself, stated that his name was "Gator" and that he would be driving a red Dodge truck.³ The detective asked that Brown bring gifts for his daughter and a condom.

At approximately 10:50 a.m., Brown, driving a red Dodge truck, arrived at the Holiday Inn. He brought a video camera, which, he explained to the detective, he intended to use to videotape the sexual encounter with the detective's daughter, and a stuffed animal and large lollipop as presents for her. At that point, Brown was arrested, and a search of his person revealed that he was carrying a condom.

During the week following his arrest, Brown was interviewed by several Task Force agents. He told them that, prior to leaving for Fort Pierce and the Holiday Inn, he told his wife and a co-worker⁴ that he was going there to see someone he had met in a chat room, who had offered to let him have sex with his fourteen-year-old daughter, and that if a girl happened to be in the hotel room where they would be meeting, he would call the police. The agents subsequently learned that Brown had not said these things to his wife and co-worker before driving to Fort Pierce on April 30.

B.

Brown was indicted by a Southern District of Florida⁵ grand jury on May 27, 2004, on one count of violating 18 U.S.C. § 2422(b).⁶ On August 3, 2004, Brown appeared before the district court with his retained attorney, Jason Kreiss, and tendered a plea of guilty. During his colloquy with the court, Brown stated that he was taking three medications for schizophrenia. The court asked him if the medication had any effect on his ability to understand the proceedings; he said that it did not and that he was ready to plead guilty. The court directed the same question to Kreiss. He stated that the medication appeared to be affecting Brown adversely as Brown's "affect" at that moment was markedly different from what he had observed in meeting with him earlier. The court, concerned with Brown's competency to plead guilty, ordered that Brown be examined. Brown received a psychiatric evaluation at the Federal Correctional Institution in Waseca, Minnesota, and was found to be competent.⁷

On April 27, 2005, Brown, having entered into a plea agreement with the Government, tendered a plea of guilty to the § 2422(b) offense. The plea agreement stated that "the defendant and the [United States Attorney's Office] stipulate to the following applications of the sentencing guidelines in computing [an] advisory guideline range: Base Offense Level 21; Use of Computer & Internet Access +2; Acceptance of Responsibility -3." The Government reserved the right to seek an additional two-point upward adjustment for obstruction of justice, pursuant to U.S.S.G. § 3C1.1, based on Brown's attempt to get his wife and co-worker to tell the authorities that he intended to call the police once he arrived at the Holiday Inn. The agreement contained no stipulation regarding Brown's criminal history category; that would be determined by the court's probation office.

The plea agreement also provided that "any recommendation that government makes to court as to sentencing ... is not binding on the court." The court could "depart from the advisory sentencing guideline range ... and ... impose any sentence within and up to the statutory maximum authorized by law for [his] offense."⁸

During the April 27, 2005, plea hearing, the court first established that Brown was currently taking psychiatric medication and then asked him whether the medication "affect[ed] in any way [his] ability to understand the proceedings." Brown stated that it did not. The court also asked Brown's counsel if he "was aware of any reason why his medication might affect his ability to enter a knowing and voluntary plea." Kreiss responded in the negative and added that Brown was "a different person today, as the court could probably see also, if you remember the way he presented last time we were here. I have no reason to believe that there are any competency issues at this time."

The court then asked Brown whether he "had received a copy of the [i]ndictment pending against [him] in this case and [had he] fully discussed those charges and the case in general with [his] attorney?" Brown replied that he had. Next, based on Brown's response to a series of questions, the court confirmed, among other things, that Brown (1) understood the rights attendant upon a jury trial and that he was waiving such rights; (2) understood the terms of the plea agreement and that no one had made any "other or different promise[s] or assurance[s] to him" other than those recited in the plea agreement; (3) that Brown could receive a prison sentence of up to thirty years; (4) that the Sentencing Guidelines were advisory; (5) and that the terms of the plea agreement are "merely recommendations to the court" and that the court could "impose a sentence that is more severe than you may anticipate."

The court asked the prosecutor, Assistant United States Attorney Jim McAdams, to recite the "government's evidence if the case were to go to trial."⁹ McAdams did so, reciting substantially what we have set out in subpart A., supra, and Brown stated that his recitation was correct. The court then informed Brown of the elements of his offense, as stated in the indictment, and asked him how he was pleading.¹⁰ Brown replied: "Guilty, your honor." The court accepted Brown's plea.

C.

On August 29, 2005, the court's probation office issued a Presentence Investigation Report (PSI). The PSI found Brown's base offense level to be 21 pursuant to U.S.S.G. § 2A3.2(a)(2), enhanced it by two levels under U.S.S.G. § 2A3.2(b)(3) because Brown used a computer to facilitate his travel to engage in prohibited sexual conduct, and two further levels under U.S.S.G. § 3C1.1 for obstruction of justice. Then, crediting Brown with acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a)(b), the PSI reduced Brown's offense level by three levels, arriving at a total offense level of 22.

The PSI revealed that Brown had been convicted of nineteen prior offenses as an adult, and several more as a juvenile. The probation office was able to consider only two of these offenses in calculating Brown's criminal history score, however, because the other offenses had occurred over fifteen years prior to the instant conviction. U.S.S.G. § 4A1.2(e)(3). Using these two offenses, the probation office set Brown's criminal history score at six, which yielded a criminal history category of III. Given a total offense level of 22 and a criminal history category of III, Brown's sentence range came to 51-63 months.

On July 28, 2005, we decided United States v. Searcy, 418 F.3d 1193, 1198 (11th Cir.2005), holding that a violation of 18 U.S.C. § 2422(b) should be considered a "crime of violence" under U.S.S.G. § 4B1.1. Section 4B1.1 mandates that a defendant convicted of a "crime of violence," who had been convicted of two prior crimes of violence (or "controlled...