United States v. Brown
| Decision Date | 07 August 2019 |
| Docket Number | No. 18-2760,No. 18-2644,18-2644 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Frankie BROWN, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Marcus J. Thornton, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Derek J. Wiseman, Attorney, Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff - Appellee.
Daniel J. Hillis, Attorney, Office of the Federal Public Defender, Third Floor, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant - Appellant.
Before Easterbrook, Kanne, and Scudder, Circuit Judges.
Frankie Brown pled guilty to distributing a controlled substance. Marcus Thornton pled guilty to bank robbery and an associated firearms charge. The same district court separately imposed terms of supervised release on both defendants, in addition to imprisonment. The court set several conditions of supervised release, including both mandatory and discretionary conditions. But it also imposed a set of "administrative conditions," which the probation office deemed "applicable whenever supervision is imposed, regardless of the substantive conditions that may also be imposed." Both defendants now contend that the imposition of administrative conditions violated their due process rights under the Fifth Amendment.
We consolidate the two appeals because of the overlap-ping legal question. But neither defendant objected to the conditions in the district court, and so both waived the issue altogether. The defendants' other challenges also fail. We therefore affirm the sentences.
Brown sold 10.8 grams of cocaine to a confidential inform-ant in April 2017. In September, he pled guilty to one count of distributing a controlled substance, 21 U.S.C. § 841. In December, the probation office filed a Presentence Investigation Re-port ("PSR") with the court. The PSR calculated a base offense level of 12. However, Brown had an extensive criminal record. His prior convictions included at least two offenses qualifying him as a career offender under U.S.S.G. § 4B1.1. That designation increased his offense level to 32. Including a 3-level reduction for acceptance of responsibility, the PSR recommended a total offense level of 29. The same guidelines man-date a criminal history category of VI, yielding a guidelines range of 151–188 months in prison.
The PSR also recommended the mandatory three-year term of supervised release under 21 U.S.C. § 841(b)(1)(C). It suggested several conditions to facilitate the supervision, including the usual mandatory conditions under 18 U.S.C. § 3583(d) and several special conditions tailored to Brown's personal characteristics. It also recommended nine "administrative" conditions, which it deemed "applicable whenever supervision is imposed, regardless of the substantive conditions that may also be imposed." Brown and his counsel received the PSR in December.
The court continued the case for several months to permit Brown to undergo competency hearings and obtain new counsel. In June 2018, six months after receiving the PSR, Brown filed a sentencing memorandum recommending a 60-month sentence. In its own memorandum, the government recommended 151 months—the low end of the guidelines range. Brown also filed an objection to the PSR, arguing that one of his prior offenses did not qualify to support a career offender designation. Later that month, on the day of the sentencing hearing, Brown signed a written waiver of his right to a reading of terms and conditions of supervised release at the hearing. It included the following language:
Defendant understands that, because no objections regarding the terms and conditions of supervised release recommended in the PSR have been filed, the Court may impose upon Defendant all of the terms and conditions of supervision recommended in the PSR which the Court finds to be appropriate. Defendant understands that the terms and conditions of supervision determined to be appropriate by the Court will be included in the judgment... . Defendant has no objection to the imposition of the conditions of supervision set forth in the PSR and Defendant has no objection to the wording of the conditions. Defendant agrees that the PSR sets forth adequate explanation for the necessity of the conditions, and Defendant understands the conditions.
At sentencing, the district court adopted the PSR's findings. It found that Brown's prior convictions did qualify him as a career offender, overruling his sole objection to the PSR. It acknowledged that Brown's criminal conduct was relatively minor and that the career-offender enhancement "increase[d] his sentence seven-fold." In light of that disparity, the district court departed downwards from the guidelines range and sentenced Brown to 120 months in prison, as well as the mandatory three years of supervised release. The court confirmed with Brown that he had waived the reading of the conditions and that he understood them, discussed them with counsel, and had no questions about them.
In March 2018, Marcus Thornton pled guilty to two counts of bank robbery, 18 U.S.C. § 2113(a). The next month, he pled guilty to one count of brandishing a firearm during a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii). In return, the government agreed to dismiss a second § 924(c) count. He was on supervised release for a prior bank robbery when he committed the two bank robberies underlying the new convictions.
On June 22, probation filed a PSR. After incorporating various enhancements and a three-level reduction for acceptance of responsibility, the PSR calculated a total offense level of 27. Together with a criminal history category of III, the PSR indicated a guidelines range of 87–108 months on the robbery counts and a mandatory-minimum sentence of 84 months on the firearms count, for a total range of 171–192 months. The PSR also recommended three years of supervised release. As in Brown's case above, in addition to the mandatory and discretionary conditions, the PSR recommended nine "administrative" conditions that are "applicable whenever supervision is imposed" and "basic requirements essential to supervision." Neither Thornton nor the government filed written objections to the PSR.
The district court held the sentencing hearing on July 27, adopting the PSR's findings. The government recommended an above-guidelines sentence of 360 months, noting that a conviction on the second firearms count contained in the indictment (which the government agreed to drop under the plea agreement) would have increased the applicable guidelines range to 471–492 months in prison. It also reminded the court that Thornton had been on supervised release for bank robbery at the time he committed the instant offenses, suggesting that he was likely to recidivate. The defense recommended a sentence within the guidelines range, pointing out that the government's recommendation of 30 years in prison would amount to a life sentence for Thornton, who was then 38 years old and suffered from various medical problems. A guidelines sentence would permit his release in his early 50s.
The district court advised the parties to request further clarification on any particular factor under 18 U.S.C. § 3553(a) if they so desired. It indicated its policy disagreement with the guidelines range because of the aggravating factors present in the case. It imposed concurrent sentences of 144 months on each robbery count and the mandatory 84 months for the firearms count, yielding a total sentence of 228 months in prison. The court again invited the parties to request more explanation of any sentencing factor, but they both declined. It also imposed a three-year term of supervised release under the conditions outlined in the PSR. As in Brown's case, Thornton had signed a waiver of the reading of the conditions of supervised release, which indicated that he understood them and had no objection. The district court confirmed those facts with Thornton himself at the hearing. After the parties indicated that they had no further questions or issues to discuss, the district court adjourned the hearing.
Brown argues first that the district court relied on incorrect information in the PSR when imposing the conditions of supervised release, namely that the administrative conditions are not required when a court imposes supervised release but rather are within the court's discretion. Second, he contends that the district court procedurally erred by failing to justify its downward variance adequately and omitting key criteria from the consideration of his history and characteristics. Last, he believes the sentence was substantively unreasonable.
Thornton mounts the same challenge to the administrative conditions of supervised release that Brown poses. He also argues that the district court procedurally erred by failing to consider his mitigating arguments during sentencing.
We evaluate procedural challenges to sentences de novo . United States v. Pennington , 908 F.3d 234, 238 (7th Cir. 2018). Both defendants argue that the district court sentenced them on the basis of incorrect information, which is a per se violation of due process. United States ex rel. Welch v. Lane , 738 F.2d 863, 864 (7th Cir. 1984). In other words, the sentences would automatically be invalid even if they were otherwise reasonable and within the discretion of the sentencing judge. Cf. Dean v. United States , ––– U.S. ––––, 137 S. Ct. 1170, 1178, 197 L.Ed.2d 490 (2017) ().
The PSRs contained three separate groups of conditions in their recommendations for supervised release. The first were the mandatory conditions...
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