US v. Andre Brown

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cr-00365-CCE-1. Copies to all parties and the district court. [999587530]. [14-4425]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4425

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANDRE QUINN BROWN,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:13-cr-00365-CCE-1)

Submitted:

February 27, 2015

Before DIAZ and
Circuit Judge.

HARRIS,

Circuit

Decided:

Judges,

and

May 21, 2015

DAVIS,

Senior

Affirmed by unpublished per curiam opinion.

Paul Camarena, NORTH & SEDGWICK, LLC, Chicago, Illinois, for
Appellant.
Ripley Rand, United States Attorney, Robert A.J.
Lang, Assistant United States Attorney, Winston-Salem, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Andre Quinn Brown appeals the sentence imposed after he
pleaded

guilty,

pursuant

to

a

written

plea

agreement,

to

possession of a firearm by a felon, in violation of 18 U.S.C.
§§ 922(g),

924(e)

(2012).

The

presentence

report

(“PSR”)

recounted Brown’s involvement with a particular criminal street
gang, and recommended as a special condition of his supervised
release

that

Brown

“not

wear,

display,

use

or

possess

any

clothing or accessories which have any gang or security threat
group significance.”

(J.A. 58).

At his sentencing hearing, Brown confirmed that he had no
objections to the PSR.

Brown explained that his connection with

the United Blood Nation gang had been the primary cause of his
past criminal activity, as well as the instant offense, and that
he had ended his association with the gang.

After the district

court recited other supervised release conditions, the probation
officer reminded the court of the PSR’s recommended condition
concerning gang-related attire.

The court responded, “I did

overlook it. . . . Not associate with any gang members. . . .
That doesn’t sound like it’s going to be a problem.”
Following
recommendations,

this
and

exchange,
neither

party

both

parties

mentioned

the

(J.A. 29).
made

other

gang-related

supervised release condition that the court had imposed.

Nearly

three weeks after the sentencing hearing, the court entered its
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judgment,

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which

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included--verbatim

from

the

PSR--the

special

condition of supervised release regarding gang-related attire.
On appeal, Brown challenges only this condition.

We affirm.

“District courts have broad latitude to impose conditions
on supervised release . . . .”
F.3d

404,

omitted).
reasonably

407

(4th

Cir.

United States v. Worley, 685

2012)

(internal

quotation

marks

“A sentencing court may impose any condition that is
related

to

the

sentencing factors . . . .”

relevant

[18

U.S.C.

685 F.3d at 407.

§ 3553(a)]

These include

“the nature and circumstances of the offense and the history and
characteristics of the defendant, providing adequate deterrence,
protecting the public from further crimes, and providing the
defendant

with

training,

medical

care,

or

treatment.”

Id.

(internal quotation marks, alteration, and citations omitted).
The condition also “must ‘involve[] no greater deprivation of
liberty

than

is

reasonably

enumerated in § 3553(a).”

necessary’

to

achieve

the

goals

United States v. Armel, 585 F.3d 182,

186 (4th Cir. 2009) (quoting 18 U.S.C. § 3583(d)(2) (2012)).
“‘The [district] court, at the time of sentencing, shall
state

in

open

court’ . . .

conditions it imposes.”

the

rationale

for

an

review.

Id.

explanation

special

Id. (internal citation and ellipsis

omitted) (quoting 18 U.S.C. § 3553(c) (2012)).
requiring

the

is

to

Nevertheless,

permit

the
3

The purpose of

meaningful

court’s

reasons

appellate
need

not

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establish

“an

sentencing

court . . .

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offense-specific

nexus,”

adequately

as

explain[s]

its reasons for imposing” the condition.

long
its

as

“the

decision

and

Worley, 685 F.3d at

407 (internal quotation marks omitted).
Brown claims that the district court erred by providing no
explanation

for

imposing

the

challenged

condition.

Because

Brown did not object on this basis in the district court, we
review the claim for plain error.
777

F.3d

700,

711

(4th

Cir.

See United States v. Price,

2015);

see

United

States

v.

Deatherage, 682 F.3d 755, 763 (8th Cir. 2012).
To establish plain error, Brown must show that:
error

occurred;

(2)

the

error

was

affected his substantial rights.

plain;

and

(3)

(1) an

the

error

Henderson v. United States,

133 S. Ct. 1121, 1126 (2013); Price, 777 F.3d at 711.

Even if

Brown makes the required showing, correction of the error lies
within our

discretion,

which

we

exercise

only

if

“the

error

seriously affects the fairness, integrity or public reputation
of

judicial

proceedings.”

Henderson,

133

S.

Ct.

at

1126-27

(internal quotation marks and alterations omitted).
We conclude that Brown has not met his burden.

The record

shows that the only explanation offered by the district court
was its adoption, in whole, of the PSR.

Even if we were to

conclude the district court erred by solely relying on the PSR’s
justifications,

as

Brown

implies,
4

that

error

was

not

plain

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because the law in this regard is not clear or settled.

See

United States v. Ramirez-Castillo, 748 F.3d 205, 215 (4th Cir.
2014);

United

States

v.

Guzman,

603

F.3d

99,

110

(1st

Cir.

2010); United States v. Johnson, 445 F.3d 339, 346 (4th Cir.
2006).

The PSR adequately explained the probation officer’s

reasons

for

recommending

the

challenged

condition

and,

therefore, because the district court did not plainly err by
solely

relying

on

the

PSR,

the

court’s

explanation

was

not

plainly erroneous.
Brown also claims that the challenged condition is overly
vague

and,

process

therefore,

rights.

that

With

its

respect

imposition
to

this

violated

claim,

disagree as to the applicable standard of review.

the

his

due

parties

Brown points

out that, at the sentencing hearing, the district court only
mentioned that Brown would be prohibited from associating with
gang members--not that he would be prohibited from wearing gangrelated attire.

Because the court did not orally pronounce the

specific portion of the condition he challenges, Brown argues
that

plain-error

review

would

be

inappropriate

and

that

we

should instead review his claim for abuse-of-discretion.
Although

Brown

concedes

that

he

did

not

object

to

the

imposition of any supervised release condition, he implicitly
argues that his failure to object should not result in plain
error review because the court’s oral pronouncement deprived him
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of any opportunity to make an objection.
courts

of

appeals

support

that

Decisions from other

position.

See,

e.g.,

United

States v. Matta, 777 F.3d 116, 121 (2d Cir. 2015) (“[W]e have
employed a ‘relaxed’ form of plain error review in those rare
cases in which the defendant lacked sufficient prior notice that
a

particular

imposed.”).

condition

of

supervised

release

might

be

In this case, however, Brown had ample opportunity

to object to the challenged condition because it appeared as a
recommendation in the PSR.

We will therefore review Brown’s

claim for plain error.
Applying the plain error standard, we conclude that, in
light of the lack of authority in this circuit, even if the
condition Brown challenges is impermissibly vague, it is not
plainly so.

Thus, Brown has failed to meet his burden.

We therefore affirm the judgment of the district court.
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

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