United States v. Brown

Full title: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. YVETTE SHEREE BROWN…

Court: United States Court of Appeals, Sixth Circuit

Date published: Oct 30, 2020

No. 19-2490 (6th Cir. Oct. 30, 2020)

Opinion

19-2490

10-30-2020

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. YVETTE SHEREE BROWN, Defendant-Appellant.

NOT RECOMMENDED FOR PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

Before: McKEAGUE, DONALD, and READLER, Circuit Judges.

ORDER

Yvette Brown appeals the 120-month sentence imposed for her conviction for conspiracy to distribute cocaine and cocaine base. The parties have waived oral argument, and this panel unanimously agrees that oral argument is not needed. See Fed. R. App. P. 34(a).

In July 2018, a grand jury returned an indictment charging Brown and twenty-six codefendants with conspiring to distribute and possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The indictment attributed 500 grams or more of cocaine to Brown for her role in the conspiracy. In addition, Brown was charged with one count of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1). Pursuant to a written plea agreement, Brown pleaded guilty to the conspiracy count.

Based on the quantity of cocaine attributed to Brown, the presentence report assigned a base offense level of 30, pursuant to USSG § 2D1.1. The report applied a four-level career-offender enhancement under USSG § 4B1.1 in light of Brown's prior convictions in Michigan state court for unarmed robbery in 2007 and for delivery/manufacture of a controlled substance in 2010. After a three-level reduction for acceptance of responsibility pursuant to USSG § 3E1.1, the total offense level became 31. Based on that total offense level and Brown's criminal history category of VI, the applicable guidelines range of imprisonment was 188 to 235 months.

Brown objected, arguing that, after this court's decision in United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc) (per curiam), neither her § 846 conspiracy conviction nor her prior conviction in Michigan for distribution of a controlled substance qualified as a "controlled substance offense" under USSG § 4B1.1. Brown also objected to the drug quantity attributed to her and to the lack of a mitigating-role adjustment for her limited role as a facilitator of a limited number of transactions in the conspiracy. The government conceded that, after Havis, the career-offender guideline is "technically inapplicable" to defendants convicted of conspiracy offenses under 21 U.S.C. § 846 but maintained that Havis was wrongly decided. The government argued that the court could still effectively apply the career-offender enhancement by varying from the guidelines based on a policy-based disagreement with them. Relying on the concurrence in Havis, the government took the position that Brown's 2010 delivery/manufacture conviction in Michigan still qualified as a predicate controlled-substance conviction under § 4B1.1.

At the sentencing hearing, the district court agreed that, under Havis, the career-offender provision could not be applied to § 846 conspiracy convictions. The court did not, however, that if the instant offense were not a conspiracy, it would adopt the concurrence in Havis and apply the career-offender enhancement based on a finding that Brown's 2010 conviction for delivery/manufacture is a controlled-substance offense within the meaning of § 4B1.1. After considering the factors set forth in 18 U.S.C. § 3553(a), the court varied upward two levels and sentenced Brown within the resulting 100-to-125-month guidelines range to 120 months of imprisonment. The court imposed a four-year term of supervised release. In the Statement of Reasons entered along with the judgment, the court cited a policy disagreement with the guidelines as the basis for the upward variance, citing Kimbrough v. United States, 552 U.S. 85 (2007), and provided the following explanation: "Post Havis defendant is not eligible for career offender guideline application. If Havis is correctly decided, the guidelines do not effectuate congressional policy under 28 [U.S.C. §] 994(h)."

Brown now appeals her sentence. She argues that her sentence is substantively unreasonable because the district court placed too much weight on its disagreement with Havis and the fact that Brown no longer qualified as a career offender when it applied an upward variance.

We review a district court's sentencing decision for substantive reasonableness under the abuse-of-discretion standard. United States v. Cunningham, 669 F.3d 723, 728 (6th Cir. 2012). We also review upward variances from the advisory guidelines range are also reviewed for reasonableness using the abuse-of-discretion standard. United States v. O'Georgia, 569 F.3d 281, 287 (6th Cir. 2009). Substantive reasonableness focuses on whether a "sentence is too long (if a defendant appeals) or too short (if the government appeals)." United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018). A claim of substantive unreasonableness is "a complaint that the court placed too much weight on some of the § 3553(a) factors and too little on others in sentencing the individual." Id. While sentences that fall within the applicable guidelines range are afforded a presumption of substantive reasonableness, United States v. Baker, 559 F.3d 443, 448 (6th Cir. 2009), sentences that fall outside the applicable guidelines range are afforded no presumption, United States v. Lanning, 633 F.3d 469, 473-74 (6th Cir. 2011). Rather, we apply "a form of proportionality review to sentences outside the Guidelines range, so that 'the greater the variance from the range, the more compelling the justification for variance must be.'" United States v. Lumbard, 706 F.3d 716, 727 (6th Cir. 2013) (internal quotations omitted) (quoting United States v. Herrera-Zuniga, 571 F.3d 568, 590 (6th Cir. 2009)); see also Gall v. United States, 552 U.S. 38, 50 (2007) (noting that "a major departure [from the sentencing guidelines range] should be supported by a more significant justification than a minor one"). However, we "must give due deference to the district court's decision that the § 3553(a) factors, on a whole, justify the extent of the variance." Gall, 552 U.S. at 51.

Under § 4B1.1 of the Sentencing Guidelines,

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

USSG § 4B1.1(a). The Guidelines define "controlled substance offense" as "an offense . . . punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance . . . or the possession of a controlled substance . . . with intent to manufacture, import, export, distribute, or dispense." USSG § 4B1.2(b). The commentary to § 4B1.2 provides that, for purposes of the career-offender guideline, the terms "crime of violence" and "controlled substance offense" encompass aiding and abetting, conspiring, and attempting to commit such offenses. USSG § 4B1.2 cmt. n.1.

In Havis, this Court held that "[t]he Commission's use of commentary to add attempt crimes to the definition of 'controlled substance offense' deserves no deference." 927 F.3d at 387. Rather, we held, "[t]he text of § 4B1.2(b) controls, and it makes clear that attempt crimes do not qualify as controlled substance offenses." Id. Because conspiracy offenses likewise appear in only the Commission's commentary to § 4B1.2 and not "in the guideline itself," id. at 386, the government conceded that the Brown's § 846 conspiracy offense did not qualify as a controlled-substance offense, and the district court agreed. The Court, however, stated, "[J]ust to make it absolutely clear, in the absence of Havis, the Court would adopt Judge Sutton's concurring opinion and find that Ms. Brown was indeed a career offender and her guideline would be as found by the . . . presentence report pursuant to the career offender guideline."

Brown asserts that "[t]he sentencing transcript leaves no doubt that the unreasonable upward variance was due to the district court's disagreement with the decision in Havis." But review of the transcript reveals that, in explaining its decision to vary upward, the court explained the § 3553(a) factors that it believed warranted the variance. Although it noted that Brown "benefitted significantly" from Havis and that the decision resulted in a 104-month reduction to the applicable minimum guideline sentence, the court explained that the 84-to-105-month range was insufficient to meet the need for specific deterrence, protection of the public, general deterrence of others, and just punishment for Brown. The court also expressed concern about Brown's "multiple priors" and the serious nature of the drug conspiracy. Indeed, the presentence report reveals that Brown had thirty-one prior convictions as an adult, several of which involved controlled substances. And with respect to the offense of conviction, the court explained that Brown involved herself in a "major drug conspiracy" and was "being held to account for 4.5 kilograms of cocaine and cocaine base." Given the nature and extent of Brown's criminal history and the seriousness and scale of the drug conspiracy, the district court's concerns regarding deterrence, public protection, and recidivism were valid reasons for imposing an upward variance. See, e.g., United States v. Jeter, 721 F.3d 746, 757-58 (6th Cir. 2013); United States v. Tristan-Madrigal, 601 F.3d 629, 636 (6th Cir. 2010); Herrera-Zuniga, 571 F.3d at 591.

The district court's mere mention of the discrepancy between the applicable guidelines ranges pre- and post-Havis and its consideration of Brown's criminal history do not compel a finding that the court unfairly weighed or improperly considered its disagreement with the Havis ruling in deciding to impose an upward variance. See United States v. Pyles, 904 F.3d 422, 426 (6th Cir. 2018) (finding an upward variance was not unreasonable where the district court explained that the career-offender enhancement would have applied but for the age of some of the prior convictions and the fact that some had been "reduced down"). Brown's criminal history is significant, and it was not unreasonable for the court to consider it. What is more, the court varied upward by only two levels and not the four levels that would have applied had Brown qualified as a career offender. And the sentence imposed-120 months-was only 15 months higher than the top of the applicable range and more than 60 months lower than the bottom end of the career-offender range. This modest variance reflects the court's reasoned weighing of the § 3553(a) factors.

Finally, Brown contends that the district court's written Statement of Reasons establishes that the court based its upward variance on its disagreement with Havis and the fact that she no longer qualified as a career offender. But oral sentences enjoy primacy over written pronouncements. United States v. Denny, 653 F.3d 415, 421 (6th Cir. 2011). Thus, "[w]hen determining the terms of a defendant's sentence, we look first to the district court's oral sentence as pronounced at sentencing." United States v. Schock, 862 F.3d 563, 570 (6th Cir. 2017). Although "written documents can be used to resolve an ambiguity in the oral sentence," a "Statement of Reasons," in particular, "must be viewed with some caution," because it "was not intended as a procedural safeguard," but rather "was merely intended to serve a record-keeping function." Denny, 653 F.3d at 421-22. Moreover, "written documents cannot be used to create ambiguity in the sentence if the oral sentence is clear." Id. at 421. Here, as discussed, the district court's oral sentence was clear.

In short, Brown points to nothing in the record to suggest that the district court unfairly weighed the sentencing factors set forth in § 3553(a), considered impermissible factors, or imposed an arbitrary sentence. The court addressed the relevant § 3553(a) factors, carefully considered and weighed the parties' arguments, and provided sufficient reasons for the upward variance. See United States v. Brinley, 684 F.3d 629, 637 (6th Cir. 2012) (finding an upward variance was not unreasonable where "[t]he record reflected] that the district court carefully addressed and weighed the parties' arguments for and against the variance, . . . analyzed each of the § 3553(a) factors, and understood the sentencing options). Brown's assertion that the district court unfairly weighed its disagreement with Havis mischaracterizes the court's reasoning and amounts to nothing more than a disagreement with how the court weighed the § 3553(a) factors. "That the district court did not weigh the § 3553(a) factors as [Brown] hoped does not compel the conclusion that it imposed an unreasonable sentence." United States v. Robinson, 892 F.3d 209, 216 (6th Cir. 2018).

Accordingly, we AFFIRM the district court's judgment.