United States v. Brown
| Decision Date | 14 April 2022 |
| Docket Number | 20-1612 |
| Parties | UNITED STATES of America, Appellee, v. Christopher BROWN, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Christine DeMaso, Assistant Federal Public Defender, for appellant.
Karen L. Eisenstadt, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.
Before Lynch, Lipez, and Thompson, Circuit Judges.
Appellant Christopher Brown pled guilty, pursuant to a written plea agreement, to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Brown to 41 months' imprisonment. Brown challenges that sentence on two grounds. He argues that the district court erroneously calculated his sentencing guidelines range by imposing a two-point enhancement for reckless endangerment during flight. See U.S.S.G. § 3C1.2. He also argues that the government paid mere "lip service" to the plea agreement at sentencing and, in so doing, breached the agreement. Because we disagree with Brown on both grounds, we affirm his sentence.
This sentencing appeal follows a guilty plea. Thus, "we glean the relevant facts from the plea agreement, the undisputed sections of the presentence investigation report (PSR), and the transcripts of [the] change-of-plea and sentencing hearings." United States v. Ubiles-Rosario, 867 F.3d 277, 280 n.2 (1st Cir. 2017).
Shortly after 2:00 a.m. on November 25, 2018, Worcester Police Officer Trevis Coleman was responding to a traffic stop when he observed Christopher Brown getting out of an SUV in front of an apartment complex. Coleman was familiar with Brown and his criminal record, including his affiliation with a violent gang and his inability to lawfully carry a firearm. When Coleman observed Brown exiting the SUV, he saw a gun protruding from Brown's waistband. Coleman exited his vehicle, approached Brown, and instructed him to put his hands behind his back.
Brown refused to do so and asked Coleman why he was being stopped. Coleman responded that he would provide more information once he placed Brown in handcuffs.1 Coleman attempted to handcuff Brown, but Brown pulled away, yelling "Nisha, help, Nisha, help, open the door." Brown eventually broke his hands free from Coleman, who then wrapped his arms around Brown's waist in an attempt to retrieve the gun that he had previously observed protruding from Brown's waistband. He was unable to locate the gun. Brown broke free from Coleman's grip and ran toward the entrance of the apartment complex, tried to open the door, and again yelled for "Nisha" to help him. Coleman radioed for back-up and continued to pursue Brown. He removed his taser and warned Brown that he would discharge it if Brown continued to resist arrest. Brown then ran down the street. Coleman indeed discharged his taser, "but it had no effect on Brown [who] kept running."
Moments later, Coleman heard a woman yelling "Chris," which caused Brown to reverse course and run back toward the apartment building. The woman opened the door to the building and Brown ran inside. Coleman attempted to follow Brown, but Brown pushed Coleman back outside and, in the process, grabbed Coleman's taser.2 The taser eventually ended up on the floor of the entryway to the apartment building. Coleman continued to pursue Brown, pulling him outside the building, and eventually pinned him against a vehicle on the street while waiting for back-up.
Back-up officers arrived and Brown continued resisting Coleman's attempts to arrest him, apparently trying "to throw Officer Coleman over his shoulders."3 With some assistance from the other officers on the scene, Coleman was able to force Brown to the ground. Brown pinned his hands underneath his body and continued to resist arrest. Coleman attempted to use his taser again, but, again, it had no effect. Using physical force -- including "punches and knee strikes" -- the officers were finally able to subdue Brown.
After Brown was restrained, Coleman searched the area for the gun that he had observed protruding from Brown's waistband. Coleman located a loaded, black .38-caliber revolver on the street where his encounter with Brown began.
In August 2019, a federal grand jury returned a superseding indictment charging Brown with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He agreed to plead guilty to the superseding indictment pursuant to a written plea agreement.
In the plea agreement, the government agreed that Brown's base offense level ("BOL") was 20, see U.S.S.G. § 2K2.1(a)(4)(A), and that it should be decreased by three levels for acceptance of responsibility, see U.S.S.G. § 3E1.1, for a total offense level ("TOL") of 17. Brown agreed that the district court "[wa]s not required to follow th[at] calculation" and waived his right to appeal his conviction or any sentence of 37 months or less. The agreement did not include a calculation of Brown's criminal history category or the resulting guidelines sentencing range ("GSR"). Instead, the government promised to recommend a sentence "within the [g]uidelines sentencing range as calculated by the U.S. Attorney at sentencing." The plea agreement also provided that "[n]othing in this Plea Agreement affects the U.S. Attorney's obligation to provide the [c]ourt and the U.S. Probation Office with accurate and complete information regarding this case."
The court held a change-of-plea hearing at which Brown entered his guilty plea. At that hearing, the court asked the government to provide the applicable sentencing range under the guidelines. The government stated that the applicable GSR with the three-level decrease for acceptance of responsibility was "30 to 37 months; without acceptance, 41 to 51 months." The court informed Brown that "while [the court] put[s] a great deal of faith in the negotiations between the lawyers[,] th[e] plea agreement is really just a recommendation," and the court "could reject th[at] recommendation[ ]" and "impose a sentence that may be more severe than ... anticipate[d]," without allowing Brown to withdraw his guilty plea. Brown stated that he understood and wished to proceed with his guilty plea.
Brown objected to this characterization in the PSR.4 Specifically, Brown objected "that the gun had already been dislodged from Brown's waist" by the time Coleman felt around his waist. Brown points to the PSR's statement that "Coleman found the gun in the same place where he first observed Brown" as additional support for his assertion that the gun had already been dislodged from his waist by the time of the struggle with Coleman. Brown reiterated this objection in his sentencing memorandum, writing that
Probation also applied a three-level reduction for acceptance of responsibility, resulting in a TOL of 19 (two levels higher than the TOL of 17 contemplated in the plea agreement). The PSR also concluded that Brown had a criminal history score of seven, which placed him in criminal history category ("CHC") IV. Ultimately, the PSR calculated the applicable GSR as 46 to 57 months.
The government did not object to the PSR. Brown objected to several factual statements (as noted above) as well as to the PSR's two-level adjustment under U.S.S.G. § 3C1.2. Noting that merely fleeing arrest is insufficient to trigger the adjustment, he argued that the facts did not support a finding that he "recklessly created a substantial risk of death or serious bodily injury to another person" in the course of his attempt to flee. And, putting aside his factual challenges to the role of the gun in this event, Brown explained that his alleged conduct of pushing an officer, grabbing the officer's taser, and attempting to throw the officer over his shoulders would not create such a risk. He also argued that the fact that the firearm ended up in the street was insufficient to warrant the adjustment because "it is unclear how [the gun] got there and ... it was 2:00 a.m. and there was no one else on the street and the gun was there for only a brief period of time."
In response, Probation explained that the "physical encounters" with Coleman that Brown admitted to "go beyond mere flight from arrest and are squarely in the realm of resisting arrest." "Between the defendant's disposal (or inadvertent dropping) of his weapon and the presence of the officer's dislodged taser during a struggle," Probation concluded that the criteria for the two-level increase under § 3C1.2 were met.
Both parties filed sentencing memoranda based on their agreed-upon calculation of a TOL of 17, the PSR's CHC of IV, and a GSR of 37 to 46 months. In his sentencing memorandum, Brown again argued that the § 3C1.2 enhancement was inapplicable and that the court should disregard that aspect of the PSR. Ultimately, Brown asked the court to impose a sentence of time served, which would have amounted to approximately 22 months, with good time.
For its part, the government asked for a "high-end guideline...
To continue reading
Request your trial