US v. Anthony Brown

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:99-cr-70105-jlk-1 Copies to all parties and the district court/agency. [998630866].. [09-4092]

Appeal: 09-4092

Document: 52

Date Filed: 07/13/2011

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4092

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTHONY CHARLES BROWN,
Defendant – Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Danville.
Jackson L. Kiser, Senior
District Judge. (4:99-cr-70105-jlk-1)

Submitted:

June 21, 2011

Decided:

July 13, 2011

Before NIEMEYER, KING, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Larry W. Shelton, Federal Public Defender, Fay F. Spence, First
Assistant Federal Public Defender, Roanoke, Virginia, for
Appellant.
Julia C. Dudley, United States Attorney, Craig J.
Jacobsen, Assistant United States Attorney, Roanoke, Virginia,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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Date Filed: 07/13/2011

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PER CURIAM:
On July 27, 1999, Anthony Charles Brown was charged in
state court in Danville, Virginia with transporting one ounce or
more of cocaine into Virginia with the intent to distribute.
After his release on $50,000 bond, Brown failed to appear for a
hearing on September 14, 1999, and a warrant was issued for his
arrest.

On November 18, 1999, a federal grand jury sitting in

Roanoke, Virginia, indicted Brown on one count of knowingly and
intentionally
five

grams

possessing
of

cocaine

§ 841(a)(1) (2006).

with

intent

base,

in

to

distribute

violation

of

more
21

than

U.S.C.

An arrest warrant for Brown was issued the

next day, and remained in effect until Brown was apprehended in
New York over eight years later, on March 5, 2008.
Following Brown’s apprehension, the federal grand jury
issued a superseding indictment charging him with knowingly and
intentionally
fifty

grams

possessing
of

cocaine

with

intent

base,

in

to

distribute

violation

of

more

21

than

U.S.C.A.

§ 841(a)(1) and (b)(1)(A) (West 1999 & Supp. 2011). Brown moved
to dismiss the superseding indictment, arguing that it
the

five-year

federal

§ 3282(a) (2006).

statute

of

limitations,

see

court denied both motions.
superseding

18

U.S.C.

Brown also moved to suppress evidence found

in a 1999 search of his bags at a train station.

the

violated

indictment

The district

Brown pleaded guilty to Count One in
without
2

the

benefit

of

a

plea

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Date Filed: 07/13/2011

Page: 3 of 5

agreement. At sentencing, the district court declined to grant
Brown a three-level reduction for acceptance of responsibility
and

added

a

two-level

increase

for

obstruction

sentencing Brown to 188 months’ imprisonment.

of

justice,

Brown noted a

timely appeal.
On appeal, Brown raises four arguments.

First, he

agues that the district court erred in denying his motion to
dismiss the indictment as time-barred.

This court reviews de

novo a motion to dismiss an indictment as time-barred when the
motion is based upon a question of law, rather than on the
existence

of

the

facts

contained

in

the

indictment.

United

States v. United Med. & Surgical Supply Corp., 989 F.2d 1390,
1398 (4th Cir. 1993).
The statute of limitations for non-capital crimes is
five years.

18 U.S.C. § 3282(a).

Brown’s offense occurred in

1999, and the superseding indictment against him was filed in
2008,

more

remand,

the

than

five

district

years

after

the

court

determined

offense.
that

after

However,
the

on

arrest

warrant was issued, Brown fled with the intent to avoid arrest. *
Brown’s fugitive status thus tolled the limitations period under

*

We previously remanded the appeal to the district court
for the limited purposes of resolving this factual issue.
United States v. Brown, 374 F. App’x 450 (4th Cir. 2010) (No.
09-4092).

3

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18

Document: 52

U.S.C.

§

Date Filed: 07/13/2011

3290

(2006),

which

Page: 4 of 5

provides,

“[n]o

statute

of

limitations shall extend to any person fleeing from justice.”
Accordingly, Brown’s first argument is without merit.
Next, Brown argues that the district court erred in
denying

Brown’s

motion

to

suppress.

We

review

the

factual

findings underlying the denial of a motion to suppress for clear
error

and

States v.
evidence

the

court’s

Branch,
is

537

legal
F.3d

construed

prevailing party below.

in

conclusions

328,

de

novo.

United

(4th

Cir.

light

the

337

2008).

most

favorable

to

The
the

United States v. Foster, 634 F.3d 243,

246 (4th Cir. 2011).
The Fourth Amendment does not prohibit all searches
and seizures, merely those found to be unreasonable.
Jimeno, 500 U.S. 248, 250 (1991).
generally

is

“per

se

Florida v.

Although a warrantless search

unreasonable,”

one

of

the

established

exceptions to this rule is a “search that is conducted pursuant
to

consent.”

(1973).

Schneckloth

v.

Bustamonte,

412

U.S.

218,

219

In determining the scope of the consent, the court uses

an objective reasonableness standard.

Jimeno, 500 U.S. at 251.

In other words, the court considers what “the typical reasonable
person
officer

[would]
and

the

have

understood

suspect.”

Id.

by

the
“The

exchange
scope

generally defined by its expressed object.”

4

of

Id.

between
a

search

the
is

A suspect may

Appeal: 09-4092

also

Document: 52

impose

consents.

Date Filed: 07/13/2011

limits

on

the

scope

of

Page: 5 of 5

the

search

to

which

he

Id.
Here, a reasonable person would have understood that

Brown consented to the search of his bags.

Accordingly, the

district court did not clearly err in so determining.
We
appeal.

also

reject

Brown’s

remaining

two

grounds

for

Brown argues that the court erred in both adopting the

presentence

report’s

recommendation

denying

a

three-level

reduction for acceptance of responsibility and in imposing a
two-level enhancement for obstruction of justice.

This court

reviews the district court’s decision for clear error.

United

States v. Kise, 369 F.3d 766, 771 (4th Cir. 2004) (acceptance of
responsibility); United States v. Kiulin, 360 F.3d 456, 460 (4th
Cir. 2004) (obstruction of justice).

Given Brown’s fugitive

status and inconsistent testimony, the district court did not
clearly err in denying Brown the acceptance of responsibility
reduction or in imposing a two-level enhancement for obstruction
of justice.
Accordingly, we affirm the judgment of the district
court.
legal
before

We dispense with oral argument because the facts and
contentions
the

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED
5