United States v. Brown
| Decision Date | 15 June 2018 |
| Docket Number | C/w 15-3065,No. 15-3056,15-3066,15-3067,15-3056 |
| Citation | 892 F.3d 385 |
| Parties | UNITED STATES of America, Appellee v. Dawayne BROWN, also known as Goon, Appellant |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Christine Pembroke, appointed by the court, argued the cause and filed the briefs for appellant Dawayne Brown.
Mary E. Davis, appointed by the court, argued the cause for appellant Marquette Boston. With her on the briefs was Pleasant S. Brodnax III, appointed by the court.
Barbara E. Kittay, appointed by the court, argued the cause and filed the briefs for appellant Ira Adona.
Jonathan Zucker, appointed by the court, argued the cause and filed the briefs for appellant Keith Matthews.
James A. Ewing, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Elizabeth Trosman, Elizabeth H. Danello, and George P. Eliopoulos, Assistant U.S. Attorneys.
Before: Garland, Chief Judge, and Kavanaugh and Millett, Circuit Judges.
Opinion for the Court filed Per Curiam.
A jury convicted Dawayne Brown, Marquette Boston, and Keith Matthews of crimes associated with unlawful distribution of PCP. A fourth defendant, Ira Adona, pled guilty before trial. The district court sentenced Brown to 14 years in prison; Boston to eight years; Matthews to nine years; and Adona to nine years. Adona's sentence was to be served consecutively to a prison sentence of two years and four months imposed by the D.C. Superior Court for Adona's attempted assault with a dangerous weapon.
Defendants challenge their convictions and sentences. Brown argues that: (i) the district court's jury instructions were erroneous in certain respects; and (ii) the district court based Brown's sentence on an erroneous factual finding. Boston contends that the evidence was insufficient to support his conviction for possession with intent to distribute PCP. Adona argues that: (i) the district court double counted a D.C. Superior Court conviction in determining his sentence; and (ii) his federal and D.C. sentences should run concurrently, not consecutively. Matthews argues that the district court erred in sentencing because: (i) the court enhanced Matthews' sentence based on attempted assault with a dangerous weapon even though, according to Matthews, attempted assault with a dangerous weapon is not a crime of violence; and (ii) the district court failed to adequately explain Matthews' above-Guidelines sentence.
We affirm the judgments of the district court with respect to Brown and Boston. We vacate the sentences of Adona and Matthews, and we remand the case to the district court for resentencing of those two defendants.
Louis Clifton lived in the Woodberry Village apartment complex in Washington, D.C. On January 12, 2013, Clifton walked into the Metropolitan Police Department's 7th District station and told the officers an extraordinary story: Armed men had taken over his apartment and were using the apartment to manufacture and sell PCP—all while Clifton continued to live there.
According to Clifton, at the end of December 2012, Dawayne Brown and Keith Matthews attacked Clifton in the foyer of his building and demanded access to his apartment. Clifton refused. He managed to break free and fled to the safety of his apartment. Clifton thought that was the end of it. He was wrong.
One week later, Dawayne Brown again approached Clifton—this time, with a gun. Brown forced Clifton into a local Dollar Store at gunpoint and had Clifton make a copy of Clifton's house key. Clifton complied, and Brown immediately took the key. From then on, Brown and Matthews used Clifton's apartment as they pleased. They came and went when they wanted, without permission. And they used the apartment to prepare "dippers"—cigarettes dipped in PCP—and to store the money earned from selling those dippers.
Clifton endured Brown and Matthews in his apartment for several weeks before going to the police. He claimed to have sought help discreetly at first, including from family members. But that proved ineffective. Finally, he turned to the police for help evicting his unwelcome, PCP-dealing home invaders.
The police traveled to Woodberry Village and entered Clifton's apartment, using the key that Clifton had provided them. A surprised Brown was inside the apartment. Police placed Brown on a sofa and handcuffed him. When they lifted him from the sofa, they found a loaded handgun. The police continued their search of Clifton's apartment and discovered an Uzi nine-millimeter semi-automatic rifle and a .38-caliber revolver under the love seat. They also discovered evidence of PCP, including glass vials with various amounts of PCP. In total, 44.4 grams of PCP were recovered.
The police searched Brown's cell phone. Text messages on Brown's phone led police to pursue Keith Matthews.
On March 7, 2013, police arrested Matthews inside another Woodberry Village apartment. A search of Matthews' phone led police to discover that the takeover of Clifton's apartment was not an isolated event. Brown, Matthews, and some friends had formed a drug-dealing operation that they called "Little Mexico." Little Mexico's method of operation involved using Woodberry Village apartments to stash guns and sell PCP.
Matthews' cell phone led police to Tiffany Williams' apartment. When police executed a search warrant at Williams' home, they found Williams, Ira Adona, Breal Hicks, and Williams' six-year-old daughter. Police arrested the three adults and searched the apartment. The search yielded evidence similar to that found in Clifton's apartment: partially filled PCP vials, three handguns, and Everclear grain alcohol, a known cutting agent for PCP.
Tiffany Williams cooperated with the police and led them to the apartment of Conovia Eddie, another member of Little Mexico. After obtaining a search warrant, the police raided Eddie's apartment. They used a battering ram to enter after their demands to open the door had been ignored. Inside, they found Marquette Boston. Boston was standing near the bathroom, and the odor of PCP was coming from a running toilet. Police arrested Boston. Police found vials partially filled with PCP or containing PCP residue, empty vials, and rubber gloves, in addition to a bulletproof vest and a loaded .22-caliber pistol with an effaced serial number.
On September 10, 2013, the government obtained a 39-count grand jury indictment against Brown, Boston, Matthews, Adona, Hicks, and Eddie for conspiracy to distribute and to possess with the intent to distribute PCP and related offenses.
On November 5, 2014, Adona pled guilty to conspiracy to distribute and possess PCP. Under the plea agreement, Adona agreed that he had conspired with others to distribute PCP in Woodberry Village. He also admitted that he had shot a man named Karl Carrington in the back on April 30, 2012, during a marijuana transaction. The two crimes were to be sentenced separately. In the D.C. Superior Court, Adona would be sentenced for the shooting offense. In the U.S. District Court, Adona would be sentenced for the drug conspiracy. The D.C. Superior Court sentenced Adona to two years and four months in prison. The district court sentenced Adona to nine years in prison, to be served consecutively to the sentence of imprisonment imposed by the D.C. Superior Court.
On March 24, 2015, the jury found Brown, Boston, and Matthews guilty.1 Brown was found guilty of second-degree burglary while armed; possession with intent to distribute PCP; and possession of an unregistered firearm. Boston was found guilty of possession with intent to distribute PCP. Matthews was found guilty of unlawful possession of a firearm and ammunition.
The district court sentenced Brown to 14 years in prison; Boston to eight years in prison; and Matthews to nine years in prison.
Brown, Boston, Adona, and Matthews now appeal.
Brown challenges the district court's jury instructions and his sentence.
Brown challenges three aspects of the jury instructions.
First , in its instructions to the jury, the district court stated that Brown had previously been convicted in the D.C. Superior Court for possession of an unregistered firearm. Brown argues on appeal that the district court erred when it informed the jury of Brown's prior firearm conviction. The problem for Brown is that he not only did not object to this instruction at trial, but he affirmatively invited this instruction. Brown's counsel insisted that the jury be informed of the prior conviction, presumably because of a strategic judgment in the context of all of the evidence and instructions in the case. A defendant may not complain about invited error. See, e.g. , United States v. Ginyard , 215 F.3d 83, 88 (D.C. Cir. 2000). Because Brown invited the error, he may not now complain of the error on appeal.
Second , Brown contends that the district court failed to give a special unanimity instruction with respect to the possession with intent to distribute PCP charge. Brown contends that jurors may have relied on different testimonial and physical evidence to conclude that he was guilty on that count. He claims that the jurors' reliance on different facts to support his conviction violates the Sixth Amendment. Brown did not raise this argument in the district court. Therefore, our review is for plain error. We need not dally on this argument. Because there is no precedent of the Supreme Court or this court requiring a district court to give a special unanimity instruction sua sponte in circumstances like those in this case, the district court's failure to do so cannot constitute plain error. See United States v. Hurt , 527 F.3d 1347, 1356 (D.C. Cir. 2008). Indeed, in Hurt , this court held that "the trial court's failure to give a special unanimity instruction sua sponte was not plain error," and Brown makes no argument that would distinguish his case from Hurt's. Id....
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