Filed: Sep. 19, 2012
Latest Update: Feb. 12, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 12-1676 _ UNITED STATES OF AMERICA v. EDWIN MICHAEL BROWN, Appellant _ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1-05-cr-00449-001) District Judge: Honorable Chief Judge Yvette Kane _ Submitted Under Third Circuit L.A.R. 34.1(a) September 14, 2012 Before: SMITH and CHAGARES, Circuit Judges, and ROSENTHAL, District Judge * (Filed: September 19, 2012) _ OPINION _ * Th
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 12-1676 _ UNITED STATES OF AMERICA v. EDWIN MICHAEL BROWN, Appellant _ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1-05-cr-00449-001) District Judge: Honorable Chief Judge Yvette Kane _ Submitted Under Third Circuit L.A.R. 34.1(a) September 14, 2012 Before: SMITH and CHAGARES, Circuit Judges, and ROSENTHAL, District Judge * (Filed: September 19, 2012) _ OPINION _ * The..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-1676
_____________
UNITED STATES OF AMERICA
v.
EDWIN MICHAEL BROWN,
Appellant
_____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-05-cr-00449-001)
District Judge: Honorable Chief Judge Yvette Kane
_____________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 14, 2012
Before: SMITH and CHAGARES, Circuit Judges,
and ROSENTHAL, District Judge *
(Filed: September 19, 2012)
_____________________
OPINION
_____________________
*
The Honorable Lee H. Rosenthal, United States District Judge for the Southern District
of Texas, sitting by designation.
PER CURIAM
This is the third appeal by Edwin Michael Brown from his conviction and
sentence. A jury convicted Brown for possessing a firearm in furtherance of a drug-
trafficking offense (Count 1); distributing and possessing crack cocaine and heroin with
the intent to distribute (Count 2); and possessing a firearm after a felony conviction
(Count 3). The District Court sentenced Brown to an aggregate prison term of 324
months, consisting of 240 months for the drug-trafficking conviction, to be served
concurrent with 120 months on the felon-in-possession conviction and consecutive to 84
months for the 18 U.S.C. § 924(c) firearm conviction. This court affirmed the conviction
and sentence on direct appeal and affirmed the District Court’s denial of Brown’s motion
under 28 U.S.C. § 2255. He now appeals from the District Court’s order granting his
motion for a sentence reduction on Count 2 under 18 U.S.C. § 3582(c) and Amendment
750 to the Sentencing Guidelines. 1
Brown’s § 3582(c)(2) motion asked the District Court to reduce the sentence for
Count 2, the drug count, from 240 to 192 months. The District Court reduced it to 189
months, which lowered Brown’s aggregate sentence from 324 to 273 months. Both the
1
Amendment 750 amended the Sentencing Guidelines in accordance with the Fair
Sentencing Act (“FSA”), which modified the statutory penalties for crack offenses by reducing
the crack-to-powder cocaine sentencing ratio from 100:1 to approximately 18:1. See United
States v. Dixon, 648 F.3d 195, 196–97 (3d Cir. 2011). Amendment 750, which amended the
Guidelines in accordance with the FSA, became both effective and retroactive on November 1,
2011. See U.S.S.G. app. C., amends. 750, 759 (Supp. Nov. 1, 2011).
2
original and the reduced sentences were in the middle of the applicable Guidelines
ranges.
Brown appeals the District Court’s order granting his motion for a reduced
sentence on the basis that it failed to address specific § 3553(a) factors, particularly
Brown’s post-sentencing conduct. Brown did not specifically ask the court to consider
this mitigating factor when he filed his § 3582(c) motion. The addendum to the
presentence report pointed out that he had one disciplinary incident in prison, had taken
courses, and had paid part of his criminal financial penalty. Brown asserts that because
the District Court did not adequately explain its reasons for the extent of the sentence
reduction, this court cannot evaluate the District Court’s exercise of discretion. Brown
asks this court to order a limited remand for the District Court to explain its reasons. We
are not persuaded. 2
The District Court’s order granting Brown’s motion was on a form generated by
the Administrative Office of the United States Courts for efficient disposition of
sentence-reduction motions under § 3582(c)(2). 3 The order stated that Brown’s motion
was granted after “having considered such motion and taking into account the policy
statement set forth at U.S.S.G. § 1B1.10 and the sentencing factors set forth in 18 U.S.C.
§ 3553(a), to the extent that they are applicable.” Although a District Court must
2
We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. When a district court grants
a motion for resentencing under § 3582(c)(2), the resulting sentence is reviewed under the abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 46 (2007).
3
consider the § 3553(a) factors and the relevant Guidelines policy statements when
exercising its discretion under § 3582(c)(2) to reduce a sentence, “we presume, in the
absence of record evidence suggesting otherwise, that a [district] judge has faithfully
discharged her duty to consider” relevant factors. See United States v. Fernandez, 443
F.3d 19, 30 (2d Cir. 2006). Brown points to no evidence that the District Court failed to
consider relevant factors. Indeed, such consideration is evident in the record. The
District Court’s oral sentence at the November 20, 2006 hearing, after allocution and
argument, explained the analysis of the relevant § 3553(a) factors. The court stated that
in deciding to impose a sentence at the middle of the Guidelines range, it took into
account the seriousness of the offense — a “long-term drug trafficking operation” that
took place “24 hours a day” and involved weapons, making it “as serious as a drug case
can get”; Brown’s youth and long drug involvement; and the powder/crack cocaine
disparity.
Brown’s argument that, in the § 3582(c)(2) sentence-reduction proceeding, the
District Court was required to give an explicit analysis of specific § 3553(a) factors,
including post-sentencing rehabilitation, lacks support in the case law as well as in the
record. The Supreme Court has stated that when resentencing a felon after an appellate
remand, a district judge is entitled to consider rehabilitation during incarceration. See
generally Pepper v. United States, ––– U.S. ––––, 131 S. Ct. 1229 (2011). But Pepper
3
AO 247 (Rev. 11/1) Order Regarding Motion for Sentence Reduction Pursuant to 18
4
applies to resentencing, at which the district judge must discuss every substantial
argument advanced by the defendant. A sentence-reduction proceeding under §
3582(c)(2) is not a form of resentencing. Dillon v. United States, 560 U.S. ––––, 130
S. Ct. 2683, 2690–92 (2010). It is instead a summary procedure designed to implement a
change in the Sentencing Guidelines. In this case, the District Court implemented that
change and imposed a reduced sentence that was otherwise consistent with the original
sentence, which it had explained in the original sentencing hearing. Neither the amended
Guidelines, § 3582(c)(2), nor Dillon, require a district judge to give effect to events that
may have occurred after the original sentencing, such as consideration of post-sentencing
rehabilitation or good conduct.
Other circuits faced with similar arguments and records have held that it is not
error for the District Court to use a summary order in ruling on a § 3582(c) sentence-
reduction motion. See, e.g., United States v. Batista, 2012 WL 1738965 (2d Cir. May 17,
2012); United States v. Tapps,
2011 WL 835752, at *1 (7th Cir. March 10, 2011). The
cases Brown cites, United States v. Howard,
644 F.3d 459 (6th Cir. 2011), and, United
States v. Marion,
590 F.3d 475 (7th Cir. 2009), involved orders denying motions for
reduced sentences under § 3582(c)(2), not orders granting motions, which raise different
concerns. See, e.g., United States v. Hargrave, 428 Fed. Appx. 388, 389 (5th Cir. 2011)
U.S.C. § 3582(c)(2).
5
(“When a district court summarily grants a § 3582(c) motion, the court is not required to
give reasons for its decision.”).
There are cases in which the District Court granted a § 3582(c)(2) motion but the
appellate court found the order to be so ambiguous as to preclude meaningful review.
See, e.g., United States v. Burrell, 622 F.3d 961, 964 (8th Cir. 2010) (concluding that the
district court’s failure to explain its reasons for reducing the prison term to the top of the
amended Guidelines range required a limited remand, when the original sentence was in
the middle of the range). This is not such a case. The record shows the District Court’s
consideration of the relevant factors and the rationale for its § 3582(c)(2) ruling. The
reduced sentence is within the amended range and is consistent with the original
sentence, revised to implement the retroactive Guidelines amendment.
We find no abuse of discretion and affirm the District Court’s order resentencing
Brown.
6
