United States v. Brown

• Decision Date: 08 February 2023
• Docket Number: Criminal 12-cr-00458-ELH
• Parties: UNITED STATES OF AMERICA v. JOSEPH MCKINSEY BROWN, Defendant.
• Court: U.S. District Court — District of Maryland

1

UNITED STATES OF AMERICA v. JOSEPH MCKINSEY BROWN, Defendant.

Criminal No. 12-cr-00458-ELH

United States District Court, D. Maryland

February 8, 2023

MEMORANDUM OPINION

Ellen L. Hollander United States District Judge

Defendant Joseph McKinsey Brown, who is self-represented, has filed a motion for compassionate release, pursuant to 18 U.S.C § 3582(c)(1)(A)(i). ECF 231. He has also filed a supplement. ECF 247. I shall refer to defendant's submissions collectively as the “Motion.”^[1] The government opposes the Motion. ECF 236 (the “Opposition”). The Opposition is supported by several exhibits. ECF 236-2 to ECF 236-6. Defendant has replied. ECF 238 (the “Reply”).

Brown entered a plea of guilty in November 2012 to the offenses of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §846 (Count Two), and possession of a firearm in furtherance of a crime of violence, in violation of Title 18 U.S.C. §922(c) (Count Three). ECF 40. Notably, the predicate offense for Count Three was Hobbs Act conspiracy under 18 U.S.C. §1951(a), as charged in Count One. Judge William Quarles, Jr., to whom the case was initially assigned, sentenced Brown in March 2013 to an agreed upon total term of 180 months of imprisonment. ECF 52 (Judgment).

The case was reassigned to me in 2016, due to the retirement of Judge Quarles. See Docket. In November 2019, I granted post-conviction relief to Brown. In particular, I vacated the judgment of conviction as to Count Three, as well as the sentence imposed for Count Two, in light of United States v Davis, ____U.S.____, 139 S.Ct. 2319 (2019), and other cases. This was because Hobbs Act conspiracy (Count One) was not a qualifying predicate for the § 924(c) offense (Count Three).

Sentencing was held on March 3, 2020. ECF 176. I sentenced Brown to a total term of 162 months of imprisonment, with credit for time served in federal custody since August 15, 2012. ECF 182.

No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion, in part.

I. Procedural and Factual Background

Brown and two others were indicted on August 23, 2012. ECF 18.^[2] Brown was charged with Hobbs Act conspiracy, in violation of 18 U.S.C. §1951(a) (Count One); conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, in violation of Title 21, U.S.C. §846 (Count Two); possession of a firearm in furtherance of a crime of violence, i.e., conspiracy to commit Hobbs Act robbery, in violation of Title 18, U.S.C. §924(c) (Count Three); and possession of a firearm by a convicted felon, in violation of Title 18, U.S.C. §922(g)(1) (Count Four). As mentioned, Count One served as the predicate offense for Count Three.

Pursuant to a Plea Agreement (ECF 40), defendant entered a plea of guilty on November 5, 2012, to Count Two and Count Three of the Indictment. ECF 39. The plea was tendered under Fed. R. Crim. P. 11(c)(1)(C) (“C Plea”), by which the parties agreed to a sentence of ten years (120 months) as to Count Two,^[3] and five years (60 months), consecutive, for Count Three, for a total sentence of fifteen years of imprisonment (180 months). Id. ¶ 7(d).

The Plea Agreement contained a lengthy factual stipulation. It stated, ECF 40, ¶ 7(a):

In July 2012, the Defendant, Joseph Brown met with a confidential source of information (the CS) working for the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") at a location in Baltimore City, Maryland. The CS told the Defendant that he knew of the location of a narcotics "a stash house" that regularly contained as much as 10 to 14 kilograms of cocaine. The CS explained that he and an associate (a disgruntled drug courier, who was actually an ATF undercover agent (UC)) planned to rob the stash house and would provide half of the stolen cocaine (that is, as much as 7 kilograms) to whomever helped them commit the robbery. The Defendant agreed to commit the robbery and indicated that he (the Defendant) had a crew of individuals capable of committing the robbery. The Defendant then arranged for the UC and CS to meet the other members of his crew.

On August 14, 2012, the CS and the UC met with the Defendant and his conspirators, CC# I and CC#2, and discussed the robbery. During the conversation the UC explained that he (the UC) was a courier of cocaine for a drug trafficking organization and he usually picked up two kilograms of cocaine at a time then delivered it north. The UC said there were always at least ten (I0) kilograms of cocaine in the residence that were pressed, wrapped, stamped, and stored in a Styrofoam cooler. The UC continued to tell everyone the cocaine was guarded by at least two and possibly three armed individuals who usually carried handguns but occasionally had an AK-47. CC#1 then told the UC, "We (the conspirators) was debating on about waitin' for you (the UC) to come out and full blitzin, just start sprayin the door down, kickin' it open ... You know that make them want to come out the back door. When they come out the back, we be waiting to come through the back." CC#1 then said "We got the chopper (a street term for an AK-47), once we hit the door by the locks it's gonna pop straight off. Kick the bitch in and start letting off they gonna, that gonna blow em out." Immediately, following CC#l 's statements, CC#2 stated, "We hitt'n the door with a K (the AK-47)," while CC#1 imitated the sound ofan automatic weapon, CC#2 continued, "as soon as you (referring to another conspirator) spray we in there." CC#2 further stated, "As soon as you (referring to the same conspirator) go in, two of us is goin straight to the backdoor."

On August 15, 2012 at approximately 8:05 a.m., the CS drove to the McCulloh homes area of Baltimore and picked up the Defendant and his conspirators in anticipation of the planned robbery. The CS then drove the Defendant and his conspirators, to meet the UC at a gas station on Russell Street.

While at the gas station, the UC explained the he (the UC) was nervous because he (the UC) did not think that they (the conspirators) were going to go through with the robbery. All three conspirators, including the Defendant, then acknowledged that they were ready. The CS then drove the three conspirators, followed by the UC, who was in a separate vehicle, to a storage facility under the guise of obtaining a minivan that the conspirators had requested the CS provide to commit the robbery. Once at the facility, everyone exited their respective vehicles, and waited for the UC to receive the call to pick up the drugs. As they waited, the arrest signal was given by the UC and agents approached to arrest all three conspirators. Each conspirator attempted to flee, but was quickly apprehended. In the process of their flight, CC#2 discarded a Jennings 9mm handgun; CC#1 threw a Ruger .45 caliber handgun onto the roof of the storage facility; and the Defendant threw a Ruger 9mm onto an adjacent roof of the same facility. All three firearms were loaded. During a search conducted incident to their arrest, recovered from the CC#2 was a pair of black rubber gloves and black balaclava; from CC#1 was a black ski mask rolled on top of his head; and from the Defendant was a pair of black rubber gloves and a black ski mask.

The parities [sic] stipulate that the Defendant and his conspirators intended to commit a robbery of the stash location with the use of the firearms in their possession, and intended to distribute the more than five kilograms of cocaine that was alleged to have been stored in the location. The parties further stipulate that cocaine is a commodity manufactured outside the state of Maryland and travels in interstate commerce. As such the conspirators, including the Defendant, possessed firearms in furtherance of a robbery, a crime of violence, that would have interfered with the interstate commercial activity of narcotics trafficking.

Count Two carries a maximum penalty of life imprisonment with a mandatory minimum term of ten years of imprisonment. Count Three carries a maximum penalty of life imprisonment with a mandatory minimum term of five years imprisonment, consecutive. ECF 40, ¶¶ 3, 7(b).

In the Plea Agreement, the parties stipulated that there was no agreement as to defendant's criminal history or criminal history category under the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). Id. ¶ 8. The parties also agreed to a base offense level of thirty-two for Count Two, pursuant to § 2D1.l(c)(4) of the Guidelines, because the defendant conspired to distribute and possess with intent to distribute at least five kilograms but less than 15 kilograms of cocaine. And, pursuant to the Guidelines, the parties agreed that Count Three had Guidelines of 60 months, consecutive. Id. ¶ 7(b). Further, the parties contemplated a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. Id. ¶ 7(c). As a result, the parties anticipated a final offense level of 27 for Count Two, and 60 months of imprisonment, consecutive, for Count Three.

The Presentence Report (ECF 46, “PSR”) indicates that Brown qualified as a career offender under U.S.S.G. § 4B1.1 because he had a combination of at least three prior and distinct felony drug convictions or convictions for crimes of violence. Id. ¶ 25. The predicate offenses are found in ECF 46, ¶¶ 36, 38, 41. As a result, under U.S.S.G. § 4B1.1, the PSR set forth an offense level of 37 for Count Two. Id. ¶ 27. After deductions for acceptance of responsibility, defendant had a final offense level of 34. Id.

In particular, Brown had two prior drug offenses that were prosecuted in Juvenile Court. ECF 46, ¶¶ 30, 31. He was...