USA v. Andre' Brown

Filing

UNPUBLISHED OPINION FILED. [10-20016 Affirmed] Judge: EGJ , Judge: EMG , Judge: CES. Mandate pull date is 03/18/2011 for Appellant Andre' Dion Brown [10-20016]

Case: 10-20016 Document: 00511394191 Page: 1 Date Filed: 02/25/2011

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit
FILED
February 25, 2011

No. 10-20016
Summary Calendar

Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANDRÉ DION BROWN,
Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-442-9

Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
André Dion Brown appeals the 120-month sentence he received on remand
for further proceedings after his conviction on two of ten counts of money
laundering promotion were reversed in his initial appeal. See United States v.
Brown, 553 F.3d 768, 775-76, 801 (5th Cir. 2008).

He complains that his

sentence is unreasonable and that the district court erred in refusing to consider
his challenge to the quantity of drugs on which it was based. As he did in his
initial appeal, Brown contends that his sentence should not have included drug
*

Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.

Case: 10-20016 Document: 00511394191 Page: 2 Date Filed: 02/25/2011
No. 10-20016
quantities from prescriptions issued by unindicted coconspirators which were not
proved to the jury beyond a reasonable doubt. The Government counters that
the district court properly determined that Brown’s arguments were foreclosed
by the law of the case and the mandate rule.
“Whether the law of the case doctrine foreclosed the district court’s
exercise of discretion on remand and the interpretation of the scope of this
court’s remand order present questions of law that this court reviews de novo.”
United States v. Lee, 358 F.3d 315, 320 (5th Cir. 2004). The record in the instant
case establishes that the sentencing claims Brown now raises were previously
raised and rejected in his initial appeal. See Brown, 553 F3d at 800. They are
therefore barred by the law of the case doctrine. See Lee, 358 F.3d at 320. This
court’s mandate reversed Brown’s convictions on two of the ten counts of money
laundering promotion and remanded for further proceedings made necessary by
the reversal of those counts. See Brown, 553 F3d at 801. The reversal of those
counts had no bearing on the prison terms originally ordered, given that the
eight other counts of money laundering promotion were affirmed and that all
sentences on those counts of conviction were ordered to be served concurrently.
See id. at 775-76, 801. Thus, this court’s mandate effectively required the
district court to reconsider only the monetary penalties originally imposed. The
district court complied with the mandate rule by reducing the monetary
penalties Brown was ordered to pay on resentencing.
Brown has abandoned by failing to brief any argument regarding
the applicability of or any exception to the law of the case doctrine or the
mandate rule. See United States v. Reyes, 300 F.3d 555, 558 n.2 (5th Cir. 2002);
F ED. R. A PP. P. 28(a)(9). He has not demonstrated any error on the district
court’s part. Accordingly, the district court’s judgment is AFFIRMED.

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