Filed: Mar. 14, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 3-14-2006 USA v. Brown Precedential or Non-Precedential: Non-Precedential Docket No. 05-1261 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "USA v. Brown" (2006). 2006 Decisions. Paper 1436. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1436 This decision is brought to you for free and open access by the Opinions of the United States
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 3-14-2006 USA v. Brown Precedential or Non-Precedential: Non-Precedential Docket No. 05-1261 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "USA v. Brown" (2006). 2006 Decisions. Paper 1436. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1436 This decision is brought to you for free and open access by the Opinions of the United States ..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
3-14-2006
USA v. Brown
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1261
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"USA v. Brown" (2006). 2006 Decisions. Paper 1436.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1436
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
BPS-147 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
Nos. 05-1261/1870
________________
UNITED STATES OF AMERICA
v.
DARRYL L. BROWN,
Appellant
________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(E.D. Pa. Crim. Nos. 01-cr-00204 & 01-cr-00205)
District Judge: Honorable Mary A. McLaughlin
________________
Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
and on Motion to Expand Certificate of Appealability
February 24, 2006
Before: RENDELL, AMBRO and GREENBERG, Circuit Judges
(Filed: March 14, 2006)
________________
OPINION
________________
PER CURIAM
Darryl L. Brown appeals from the order of the United States District Court for the
Eastern District of Pennsylvania denying his § 2255 motion.
Brown pled guilty on November 11, 2001, to multiple counts of conspiracy to
commit bank fraud, identity theft and wire fraud, bank fraud, interstate transportation of
stolen motor vehicles, and fraudulent use of a Social Security account number to deceive
or defraud. All of the charges arose out of Brown’s operation of an identity theft ring that
used stolen identities for the fraudulent purchase of automobiles. Brown was sentenced
to 180 months of imprisonment in the aggregate, supervised release, and restitution in the
amount of $1,155,591.09, plus a special assessment. We affirmed the conviction and
sentence on November 19, 2003.
Brown filed a motion to vacate his sentence under 28 U.S.C. § 2255, which he
amended in March and July 2004, raising a total of twenty claims, including (1) a claim
under Blakely v. Washington, 124 U.S. 2531 (2004), challenging sentence enhancements
he received, (2) claims of constitutional deficiencies in the indictment and guilty plea
hearing, and (3) numerous ineffective assistance of counsel claims arising out of (a) the
Government’s failure to file a 5K1.1 motion on his behalf, and (b) the fact that he did not
receive a downward adjustment for acceptance of responsibility. Brown also alleged that
counsel was ineffective for failing to challenge on appeal the District Court’s calculation
of the restitution amount, failing to confer with Brown about the 302 statements prior to
the hearing on Brown’s motion to compel specific performance of the plea agreement,
failing to bring to the Court’s attention the Government’s failure to disclose to the defense
the existence of letters that were favorable to Brown, and failing to challenge on appeal
the Government’s motion for upward departure based on the non-economic harm to the
victims of identity theft. The District Court denied Brown’s Blakely claim, holding that
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Blakely did not apply retroactively on collateral review. The District Court issued a
certificate of appealability as to the Blakely claim, however, explaining that “if Blakely
were retroactive and if a Blakely claim were not procedurally defaulted, an issue that the
Court does not decide here, the Court would have difficulty concluding that Mr. Brown
admitted at the time of his guilty plea hearing all of the operative facts that apply to the
Guideline enhancements in this case.” The District Court denied the remaining claims on
their merits and declined to issue a certificate of appealability as to those claims. Brown
filed a motion for reconsideration, which the District Court denied. Brown then filed this
timely appeal.
We have jurisdiction to consider this appeal under 28 U.S.C. §§ 1291 and 2255.
Brown has filed a motion for appointment of counsel and an application to expand the
certificate of appealability. After issuance of our decision in Lloyd v. United States, 407
F.3d 608 (3d Cir. 2005), the Clerk advised the parties that the Court would consider
possible summary action in this matter in light of Lloyd. The parties have responded and
the matter is ready for disposition. We exercise plenary review over the District Court’s
order denying § 2255 relief. United States v. Jenkins,
333 F.3d 151, 153 (3d Cir. 2003).
We will affirm the District Court’s order.
I.
Brown requests that the certificate of appealability be expanded to include the
remaining nineteen claims in his § 2255 motion. We deny the request. The District Court
correctly treated Brown’s amendment of those claims, in March 2004, as having replaced
the original § 2255 claims 1-4, and thus correctly dealt with those claims, as amended.
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With respect to the remainder of his claims, we conclude that Brown has not made a
substantial showing of the denial of a constitutional right, for substantially the reasons set
forth by the District Court in its memorandum opinion. See 28 U.S.C. § 2253(c). We
decline to address Brown’s new claims with regard to appellate counsel Campbell and
former plea counsel Martir because he did not raise them in the District Court.
II.
Brown contends that the District Court erred in adjusting his base offense level
upward by twenty-three points based on the court’s factual findings made pursuant to the
Federal Sentencing Guidelines. Brown argues that his sentence was imposed in violation
of Blakely.1 Of course, this argument now is governed by the Supreme Court’s decision
in United States v. Booker, 125 S. Ct. 738 (2005). We have held that the rule announced
in Booker, which applied the Blakely rule to the Federal Sentencing Guidelines, is not
retroactively applicable to cases on collateral review where the judgment of conviction
was final as of January 12, 2005, the date on which the Booker opinion was issued. See
Lloyd v. United States,
407 F.3d 608 (3d Cir. 2005). Brown’s conviction became final in
1
Brown asserts in his Response to the notice advising him of possible summary
action that his § 2255 motion also included a claim that counsel was ineffective for failing
to raise, on direct appeal, an Apprendi challenge to the sentence enhancements. Our
review of the record indicates that Brown did not raise this claim in his original § 2255
motion or any subsequent amendments. He raised the issue only in response to the
Government’s argument that his Blakely claim was procedurally defaulted. The District
Court explicitly declined to decide the Blakely claim on procedural default grounds.
Because Brown did not raise the claim in the District Court, we will not review it for the
first time on appeal. If Brown wishes to pursue a second or successive § 2255 motion in
District Court, he must obtain leave from this Court before doing so. See § 28 U.S.C. §§
2255 ¶ 8 & 2244.
4
August 2002, well before Blakely and Booker were decided. Our decision in Lloyd thus
resolves the question of retroactivity in this case, which is the only issue as to which the
District Court granted a certificate of appealability. Accordingly, we will summarily
affirm the District Court’s order. In light of the foregoing, there is no need to appoint
counsel in this matter.
III.
For the foregoing reasons, Brown’s motion for appointment of counsel and his
application to expand the certificate of appealability are denied. Because precedent in
Lloyd v. United States, 407 F.3d 608 (3d Cir. 2005), which was decided after this appeal
was taken, answers the question as to which the District Court granted a certificate of
appealability, we will summarily affirm the District Court’s order. See Third Circuit
LAR 27.4 and I.O.P. 10.6.
5
