United States v. Brown, 030118 FED5, 16-11340

Docket Nº:16-11340
Opinion Judge:JAMES L. DENNIS, Circuit Judge
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee v. LENNON RAY BROWN, Defendant-Appellant
Judge Panel:Before JOLLY, DENNIS, and ELROD, Circuit Judges.
Case Date:March 01, 2018
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellee

v.

LENNON RAY BROWN, Defendant-Appellant

No. 16-11340

United States Court of Appeals, Fifth Circuit

March 1, 2018

         Appeal from the United States District Court for the Northern District of Texas

          Before JOLLY, DENNIS, and ELROD, Circuit Judges.

          JAMES L. DENNIS, Circuit Judge

         Lennon Ray Brown, a former Citibank employee, pleaded guilty to intentionally damaging a protected computer in violation of 18 U.S.C. § 1030(a)(5)(A) after temporarily disabling a portion of Citibank's network. He was sentenced to twenty-one months of incarceration followed by two years of supervised release. On appeal, Brown argues that his Guidelines range was improperly increased under U.S.S.G. § 2B1.1(b)(18)(A)(iii), which applies to conduct causing a "substantial disruption of a critical infrastructure." Because we conclude that Brown's conduct could not have had a serious impact on national economic security, we VACATE Brown's sentence and remand for resentencing.

         I

         Brown was a system specialist at Citibank's Global Control Center in Irving, Texas. On December 23, 2013, Brown was called into a meeting with his supervisors and presented with a formal "Performance Improvement Plan" based on accusations of poor work performance. Brown refused to participate in the plan. At 6:03 p.m., about an hour after leaving the meeting, Brown connected to Citibank's secure network and intentionally executed commands to disrupt network traffic through ten of Citibank's data routers, ultimately impacting nine. Brown's sabotage resulted in a loss of connectivity to some but not all of Citbank's North American data centers, campuses, call centers, and sixty-nine ATMs. He then left the building, informing a coworker that he would not be returning. The Global Control Center almost immediately received an automatic alert notifying it of the outage and promptly committed company resources to resolve the problem. By 10:17 p.m., Citibank had restored ninety percent of the lost connectivity, and by 4:21 a.m. the next morning had fully restored the network.

         Brown pleaded guilty without a plea agreement to a one-count indictment charging him with intentional damage to a protected computer in violation of 18 U.S.C. § ; 1030(a)(5)(A), (c)(4)(A)(i)(I), and (c)(4)(B). Brown's Presentence Report (PSR) calculated a total offense level of twenty-three with a criminal history category of I, resulting in a Guidelines range of forty-six to fifty-seven months of incarceration. The PSR calculated Citibank's actual loss as $133, 402, including $56, 202 for increased phone calls to call centers from customers affected by the outage. The PSR also applied a six-level sentencing enhancement under § 2B1.1(b)(18)(A)(iii) for a violation of § 1030 that caused a "substantial disruption of a critical infrastructure, " bringing the offense level to twenty. Under § 2B1.1(b)(18)(B), because § 2B1.1(b)(18)(A)(iii) applied, the offense level was then increased to twenty-four, effectively an additional four-level increase.

         Brown subsequently filed a sentencing memorandum, requesting a downward variance and disputing the loss calculations and other facts included in the PSR. Brown alleged that his offense level was erroneously calculated under the Guidelines and proposed an alternative calculation that, relevant to this appeal, eliminated the six-level enhancement and corresponding level increase under § 2B1.1(b)(18)(A)(iii) and (18)(B) and substituted a mutually exclusive four-level enhancement under § 2B1.1(b)(18)(A)(ii). In its response, the Government stated that Brown "appear[ed] to object to the loss figure [and] the 6 level increase pursuant to § 2B1.1(b)(18)(A)(iii) for a substantial disruption of a critical infrastructure." The Government contended that the § 2B1.1(b)(18)(A)(iii) enhancement was correctly applied because Brown "shut down nine (9) [of] CITI's routers, causing a substantial disruption to CITI's call centers, and deleting essential...

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