U.S. v. Brown

• Decision Date: 30 January 2008
• Docket Number: Docket No. 05-5462-cr.
• Citation: 514 F.3d 256
• Parties: UNITED STATES of America, Appellee v. Sean BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

514 F.3d 256

UNITED STATES of America, Appellee v. Sean BROWN, Defendant-Appellant.

Docket No. 05-5462-cr.

United States Court of Appeals, Second Circuit.

Argued: October 17, 2007.

Decided: January 30, 2008.

Adam Abensohn, Assistant United States Attorney, Brooklyn, New York (Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Emily Berger, Assistant United States Attorney, Brooklyn, NY, on the brief), for Appellee.

Michael S. Pollok, New York, NY, filed a brief for Defendant-Appellant.

Before: KEARSE and HALL, Circuit Judges, and RAKOFF, District Judge^*.

KEARSE, Circuit Judge:

Defendant Sean Brown, who pleaded guilty in the United States District Court for the Eastern District of New York before Sterling Johnson, Jr., Judge, to one count of unlicensed gun dealing, in violation of 18 U.S.C. § 922(a)(1)(A), and seven counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), appeals from a judgment entered following a remand pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir.2005) ("Crosby"), sentencing him under the advisory Sentencing Guidelines principally to 84 months' imprisonment, to be followed by a three-year term of supervised release. On appeal, Brown contends that the district court erred in increasing his offense level on the grounds (a) that on some of the firearms he possessed the serial numbers had been obliterated, and (b) that his prior crime of third-degree burglary constituted a crime of violence. He also contends that his sentence is unreasonable on the grounds that the district court (a) failed to consider, inter alia, some of the sentencing factors set forth in 18 U.S.C. § 3553(a), and (b) reimposed a sentence that the court had originally indicated was inappropriate. For the reasons that follow, we find no basis for reversal.

I. BACKGROUND

The events leading to this prosecution are not in dispute. In a series of transactions in late 2002 and early 2003, Brown sold seven guns to undercover police officers. On two of those guns, the serial numbers were obliterated. Brown was indicted on, inter alia, one count of unlicensed gun dealing, in violation of 18 U.S.C. 922(a)(1)(A), and seven counts of being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g)(1). Brown pleaded guilty to those eight counts. The indictment also charged him with two counts of knowingly possessing firearms with obliterated serial numbers, in violation of 18 U.S.C. § 922(k); the court refused to accept a plea of guilty to those two counts because Brown maintained that he did not know the serial numbers on the guns were obliterated.

A. The Guidelines Calculations

A presentence report ("PSR") prepared on Brown initially calculated that his recommended range of imprisonment under the 2003 version of the Guidelines ("2003 Guidelines"), which was applied to him, was 57-71 months. The PSR described Brown's criminal record, which included three convictions for felonies under New York State ("State") law: a 1989 conviction for criminal possession of a weapon, a 1991 conviction for attempted burglary, and a 1993 conviction for burglary. As to the 1993 burglary conviction, the PSR stated that, according to his State presentence report, Brown had explained to a State parole officer that someone had owed him money and that, when Brown had not received payment for several months, he broke into the home of his debtor's mother and stole her jewelry.

The above three convictions gave Brown nine criminal history points and placed him in criminal history category ("CHC") IV. The PSR calculated Brown's base offense level as 20 on the premise that he had committed the instant offenses after having been convicted of one prior crime of violence, see 2003 Guidelines § 2K2.1(a)(4)(A), to wit, the attempted burglary of which he was convicted in 1991. See also id. § 2K2.1 Application Note 5 (stating, in pertinent part, that "[t] or purposes of this guideline . . . `[c]rime of violence' has the meaning given that term in § 4B1.2(a)"). The PSR also stated that at least two of the firearms sold by Brown had obliterated serial numbers. After a two-step increase for possession of firearms with obliterated serial numbers, see id. § 2K2.1(b)(4), a two-step increase on the ground that Brown's offenses involved seven firearms, see id. § 2K2.1(b)(1), and a three-step decrease for acceptance of responsibility, see id. § 3E1.1(b), Brown's total offense level was 21.

However, the PSR was subsequently amended to increase that level. An addendum stated that a closer examination of New York statutes and this Court's decision in United States v. Andrello, 9 F.3d 247 (2d Cir.1993) ("Andrello"), cert. denied, 510 U.S. 1137, 114 S.Ct. 1117, 127 L.Ed.2d 426 (1994), revealed that Brown's 1993 burglary was a crime of violence, and hence that Brown's record included two crimes of violence rather than one as stated in the original PSR. The base offense level of a defendant with two such prior convictions was 24. See 2003 Guidelines § 2K2.1(a)(2). Thus, the amended PSR concluded that, with the other adjustments remaining the same, Brown's total offense level was 25. That offense level, combined with a CHC of IV, resulted in a Guidelines-recommended imprisonment range of 84-105 months.

B. The March 2004 Sentencing

Brown made no objections to the statements or calculations in the PSR, either as originally issued or as amended, except with respect to the recommended two-step increase in offense level for possession of firearms with obliterated serial numbers. He did not suggest that the serial numbers were not in fact obliterated; rather, he contended that the enhancement was inappropriate because he did not know they were obliterated, and because the district court had refused to accept his plea of guilty to the § 922(k) charges that he had "knowingly" possessed firearms with obliterated serial numbers. Brown argued that his Guidelines imprisonment range, without that enhancement, should be 70 to 87 months. (See, e.g., Sentencing Transcript March 26, 2004 ("2004 S.Tr."), at 7.)

The government responded that while 18 U.S.C. § 922(k) itself applies only if the defendant had knowledge that a firearm's serial number was removed, altered, or obliterated, the pertinent Guidelines section stated simply, "[i] f any firearm ... had an altered or obliterated serial number, increase by 2 levels," 2003 Guidelines § 2K2.1(b)(4). The government pointed out that the commentary to that guideline provided that the enhancement under subsection (b)(4) for a "[f]irearm with altered or obliterated serial number applies whether or not the defendant knew or had reason to believe that the firearm had an altered or obliterated serial number." (2004 S.Tr. at 6 (referring to 2003 Guidelines § 2K2.1 Application Note 19).) Thus, the guideline had no scienter requirement.

Judge Johnson addressed both sides' positions, stating as follows:

Problem I have with the government's position is the fact that the defendant had pled to eight counts for aggregating [sic] circumstances, the government wants to charge him basically with ten [sic] guns, two which he said he didn't know the guns were—the serial numbers were obliterated and while according to the law the government has the right to do that, it is not the right thing to do.

The government's calculations with respect to their position is 84 to 105 months. The defendant's position is that it should be 70 to 87 months. The problem that I have with the defendant's position is that he is in a criminal category history four. It is not that this is his first contact with the criminal justice system.

If he were not a criminal category history four, notwithstanding Sentencing Guidelines as related by the government, I would sentence him to 70 months. However, I'm going to sentence the defendant to the custody of the Attorney General or his duly authorized representative for a period of 84 months.

(2004 S.Tr. at 20-21 (emphases added).)

Judgment was entered on March 31, 2004, and Brown timely appealed. On appeal, Brown was represented by new counsel, and his new attorney filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and moved to withdraw as counsel, stating that Brown had no nonfrivolous issues for appeal. The government moved for summary affirmance. In January 2005, the United States Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), holding that the Guidelines are not mandatory but advisory. Thereafter, this Court granted Brown's new attorney's motion to withdraw; but we denied the government's motion for summary affirmance, instructed that new counsel be appointed for Brown, and, without reaching any merits questions, summarily remanded the case to the district court, in accordance with Crosby, 397 F.3d at 119, to permit the court to determine whether its original sentence would have been nontrivially different under the post-Booker advisory-Guidelines regime.

C. The Sentencing on Remand

On remand, Judge Johnson decided to resentence Brown; the attorney who had represented Brown throughout virtually all of the prior district court proceedings was appointed to represent him. Thereafter, the parties submitted written arguments and the court held a hearing, attended by counsel and Brown. Brown's attorney reiterated his prior argument that notwithstanding the fact that the Guidelines § 2K2.1(b)(4) enhancement was, on its face, applicable even if the defendant did not know the serial numbers were obliterated, Brown should not have his punishment increased on account of a fact that he denied knowing. (See, e.g., Sentencing Transcript September 23, 2005 ("2005 S.Tr."), at 5 ("Even though it is something the defendant doesn't have to know, he still has not pled guilty to that.").)

Brown's attorney also advanced a new contention, saying he had "missed it...