U.S. v. Brown

• Decision Date: 25 August 2008
• Docket Number: No. 08-1102.,08-1102.
• Citation: 539 F.3d 835
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Darnell BROWN, Jr., also known as P, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

539 F.3d 835

UNITED STATES of America, Plaintiff-Appellee, v. Darnell BROWN, Jr., also known as P, Defendant-Appellant.

No. 08-1102.

United States Court of Appeals, Eighth Circuit.

Submitted: June 10, 2008.

Filed: August 25, 2008.

Anne M. Laverty, argued, Cedar Rapids, IA, for appellant.

Patrick J. Reinert, AUSA, argued, Cedar Rapids, IA, for appellee.

Before MURPHY, BYE, and SHEPHERD, Circuit Judges.

MURPHY, Circuit Judge.

Darnell Brown, Jr., pled guilty to a conspiracy drug offense involving distribution of marijuana and possession with intent to distribute and distribution of 5 grams or more of cocaine base after being convicted of a felony drug offense. The district court¹ sentenced Brown to 360 months and he appeals, arguing that there were several sentencing errors and that his sixth amendment right to effective assistance of counsel was violated. We affirm.

Brown was part of a conspiracy to sell cocaine base or crack and marijuana in Cedar Rapids, Iowa. Shauntella Hopkins, Michael Clark, and Rondesha Roundtree were involved in the same conspiracy. Clark had been Brown's friend since childhood and had traveled with him from Chicago to Cedar Rapids a few weeks before a confidential informant made controlled buys in April 2005. The two men stayed in Hopkins's apartment while in Cedar Rapids; she is the mother of Brown's young daughter. Roundtree was a high school student with ties to Iregous Parks, a drug trafficker doing business in the area.

The confidential informant arranged to buy drugs from Brown, whom he knew as "P," through calls to Brown's cell phone. The first two sales occurred on April 12 and 14 in Hopkins's apartment, which is within 1000 feet of a public high school and a playground, and she was present for both. These sales involved about 2.08 grams of crack and 2.7 grams of marijuana.² Brown also agreed to sell the confidential informant $300 worth of crack on April 21. He called Roundtree, who was carrying a cell phone and keeping crack for Iregous Parks. She agreed to supply the crack for Brown's sale which was to occur in the parking lot of a local grocery store. Brown, Roundtree, and Clark went there together in Brown's car. Clark drove, Brown sat in the passenger seat, and Roundtree sat in the back with the crack. The informant approached Brown, handed him $300 in recorded currency and Brown passed him about 2.47 grams of crack.

After the sale Clark drove to a nearby convenience store and went in to buy some items, paying with one of the $10 bills that the confidential informant had given Brown. While Brown and Roundtree were waiting for him, the police arrived and arrested Brown on an outstanding warrant. As he was being arrested, Brown asked Roundtree if she had his money, and the police found $290 and $537 on her after she waived her Miranda rights.³ Clark consented to a search of the car, and officers found a bag of crack in the trunk near where Roundtree had been sitting. The bag contained about 4.97 grams of crack. Later that day officers executed a search warrant at the apartment where Brown had been staying with Hopkins. They found two guns and some ammunition in the bedroom shared by Hopkins and Brown. Although Brown denied owning the firearms, he had access to the weapons and there was some evidence that he had handled and possessed them.

Brown, Clark, Hopkins, and Roundtree were charged in an eight count indictment on May 4, 2006. Brown was named in all eight counts and faced charges of conspiracy, felon in possession of a firearm and ammunition, possession with intent to distribute crack and distribution of crack, and distribution of marijuana. At his arraignment Brown pled not guilty to all counts, and he was detained pending trial. Defense counsel was appointed in May 2006. On June 22, 2006 Brown participated in a proffer interview in which he admitted that he had regularly sold cocaine, crack, and marijuana from approximately June 2003 until his April 2005 arrest. Brown states that he had not realized that this information could be used against him. Although his attorney had provided him with a copy of the proffer agreement, he says he has substantial difficulty reading and mistakenly believed it was a plea agreement. In August 2006 Brown filed a pro se motion for new counsel, which the district court granted after a hearing.

On defense counsel's motion Brown underwent an evaluation to help determine his competency for trial. During his psychological examination Brown indicated that he had experienced physical and sexual abuse as a child and had run away from home to escape the abuse; he also reported a long history of alcohol and drug use. Brown was found competent to stand trial and to assist in his own defense, but the January 18, 2007 psychological report diagnosed him with antisocial personality disorder, polysubstance dependence, and depressive disorder not otherwise specified, although medical staff suspected that his psychotic symptoms were due to malingering. Brown reported taking prescription medications for depression and paranoia.

Meanwhile, Brown's codefendants had entered into plea agreements and provided information against him. Brown decided to negotiate a plea agreement with the government and changed his plea to guilty on Count 1, which charged a conspiracy to distribute marijuana and to possess with intent to distribute and distribute 5 grams or more of cocaine base after being convicted of a felony drug offense. In exchange the government agreed to dismiss the remaining charges. The district court accepted Brown's plea and conducted a sentencing hearing on December 21, 2007 and January 3, 2008. Several witnesses testified, including Brown, Clark, Roundtree, Mario Williams, a fellow inmate of Brown's, and Agent Moyle, an officer who had interviewed Brown.

After hearing testimony and arguments, the district court calculated Brown's advisory guideline sentencing range. Brown's drug quantity was based on the average daily sales of cocaine and crack he had admitted in his debriefing interview for the period between June 2003 and April 2005. He was ultimately held responsible for 935 grams of cocaine base and 354 grams of cocaine, which amounted to 5,680.80 kg of marijuana equivalents pursuant to § 2D1.1 of the United States Sentencing Guidelines Manual (U.S.S.G.). Because the sales had occurred within 1000 feet of a protected location, his base offense level was 35 under U.S.S.G §§ 2D1.1 and 2D1.2. The district court imposed a two level increase for possession of a dangerous weapon during the offense, a two level increase for Brown's supervising role in the offense, and a two level increase for obstruction of justice. The court denied Brown's request for a two level downward adjustment for acceptance of responsibility. With an adjusted offense level of 41 and criminal history category III, his guideline sentencing range was 360 months to life. Brown requested a downward departure or variance based on his mental and emotional condition, his history of child abuse, and his illiteracy, and the government requested an upward departure or variance. After denying both motions, the district court imposed a sentence of 360 months, at the bottom of the guideline range.

Brown appeals his sentence, arguing that the district court made several sentencing errors, that the sentence imposed is unreasonably long, and that he was denied his sixth amendment right to effective assistance of counsel. The government denies each of the alleged sentencing errors, and it argues that his 360 month sentence is not unreasonable and that his ineffective assistance of counsel claim is not ripe for review.

Brown first challenges the district court's imposition of a two level increase in his offense level based on his organizing role in the offense, arguing that there was no evidence that he exercised the requisite control and authority over another participant. The government contends that Clark's evidence that he served as Brown's driver for drug transactions and received little remuneration sufficiently supported the increase. We review the upward adjustment of Brown's sentence based upon his aggravating role for clear error, see United States v. Jimenez-Gutierrez, 425 F.3d 1123, 1124 (8th Cir.2005), and under this standard we will reverse only if we have a "definite and firm conviction" that the district court made a mistake. United States v. Willis, 433 F.3d 634, 636 (8th Cir.2006) (quotation omitted).

The district court determined that Clark had been led, managed, or supervised by Brown and therefore increased his offense level pursuant to U.S.S.G. § 3B1.1(c). That section provides for a two level increase in the offense level if the defendant was "an organizer, leader, manager, or supervisor in any criminal activity" which involved fewer than five participants, and we broadly construe the terms manager or supervisor. See U.S.S.G. § 3B1.1(c); United States v. Rosas, 486 F.3d 374, 376-77 (8th Cir.2007). Clark testified at the sentencing hearing that he had driven Brown to several drug transactions in Cedar Rapids and in Davenport, Iowa. Explaining the events on the day of the third controlled buy, Clark said that he was helping Hopkins move a TV when Brown called and "told" Clark to "come get him," without telling him why, "so [Clark] had left to go get him," and then drove him to the deal. On this record, we are satisfied that the district court neither clearly erred in determining that Brown had played an organizing role in the offense nor in enhancing his sentence on that basis. See United States v. Maejia, 928 F.2d 810, 816 (8th Cir.1991) (affirming organizing role enhancement for defendant who recruited two drivers for drug deal); United States v. Zimmer, 299 F.3d 710, 724 (8th Cir. 2002) (management or supervision of only one other participant or one transaction suffices for organizing role enhancement).

Brown also contends that the district court...