USA v. Demond Brown

Filing

OPINION filed : AFFIRMED. Decision not for publication. Damon J. Keith (AUTHORING), Raymond M. Kethledge, and Bernice Bouie Donald, Circuit Judges.

Case: 16-2776

Document: 38-2

Filed: 03/12/2018

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0124n.06
No. 16-2776
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
)
)
)
)
)
)
)
)
)
)
)
)
)

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DEMOND ANDREW BROWN,

Defendant-Appellant.

FILED
Mar 12, 2018
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF MICHIGAN

BEFORE: KEITH, KETHLEDGE, and DONALD, Circuit Judges.
DAMON J. KEITH, Circuit Judge. Appellant Demond Brown pled guilty to one count
of possession with intent to distribute 28 grams or more of cocaine base, in violation of
21 U.S.C. § 841(a) and (b)(1)(B)(iii). Brown appeals the district court’s finding at sentencing
that he qualified as a career offender under United States Sentencing Guidelines § 4B1.1,
because none of his prior sentences at issue exceeded one year. Moreover, Brown contends that
he received ineffective assistance of counsel at sentencing. For the following reasons, we
disagree with both of Brown’s arguments and affirm the district court’s career offender finding
and resulting sentence.
I.

BACKGROUND

On April 27, 2016, state and federal law enforcement officials obtained a search warrant
for Demond Brown’s (“Brown”) residence. Brown shared this residence with his girlfriend.

Case: 16-2776

Document: 38-2

Filed: 03/12/2018

Page: 2

No. 16-2776, United States v. Brown
During the search, law enforcement officials discovered approximately 35 grams of cocaine base
in several locations throughout the residence. They also recovered a rifle, a loaded pistol, and
approximately $2,600 in United States currency that was the proceeds of drug trafficking.
Brown admitted that the firearms belonged to him, and that he intended to distribute the cocaine
base to other people.
On June 29, 2016, a grand jury sitting in the Western District of Michigan returned a
two-count Indictment, charging Brown with: (1) possession with intent to distribute more than
28 grams of cocaine base, in violation of 21 U.S.C. § 841(a) and (b)(1)(B); and, (2) being a felon
in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

The

Government subsequently filed an Information and Notice of Prior Drug Conviction on July 26,
2016, which increased the resulting penalty to a minimum term of ten years’ incarceration
pursuant to 21 U.S.C. § 841(b)(1)(B). On September 1, 2016, Brown pled guilty to the drug
count (Count One) of the Indictment, pursuant to a written plea agreement. Under the terms of
the plea agreement, the Government agreed to dismiss the firearm count (Count Two) of the
Indictment.
Prior to sentencing, the United States Probation Office prepared a Presentence
Investigation Report (“PSR”), which determined that Brown was a career offender under United
States Sentencing Guidelines (“U.S.S.G.”) § 4B1.1(a) as a result of two prior drug convictions in
Michigan (hereinafter, “Michigan drug convictions”). The convictions were for delivery or
manufacture of less than 50 grams of cocaine, in violation of Mich. Comp. Laws (“MCL”)
§ 333.7401.

One conviction occurred in 2013, the other in 2014.

The career offender

enhancement added nine points to Brown’s Adjusted Offense Level of 28; after a three point
reduction pursuant to U.S.S.G. § 3E1.1, Brown’s Total Offense Level was 34. Notably, Brown

2

Case: 16-2776

Document: 38-2

Filed: 03/12/2018

Page: 3

No. 16-2776, United States v. Brown
did not object to the PSR, but did file a sentencing memorandum and a motion for a downward
variance.
At the sentencing hearing on December 13, 2016, Brown’s counsel again requested a
variance, but did not object to the application of the career offender enhancement or any other
aspect of the guideline calculation. The district court found that the career offender enhancement
was applicable to Brown, and that the resulting advisory guideline range was 262-327 months.
Brown’s counsel did not dispute this finding.

After considering the 18 U.S.C. § 3553(a)

sentencing factors and granting Brown’s request for a downward variance, the district court
imposed a below-Guidelines sentence of 240 months. Brown filed a timely notice of appeal on
December 27, 2016.
II.
A.

DISCUSSION
Standard of Review

Generally, we review de novo the district court’s legal determination that Brown’s prior
Michigan drug convictions qualify as controlled substance offenses for career-offender purposes.
See United States v. Evans, 699 F.3d 858, 862 (6th Cir. 2012). Because he raises this objection
for the first time on appeal, however, we review for plain error. United States v. House, 872 F.3d
748, 753 (6th Cir. 2017) (citing United States v. Hickman, 303 F. App’x 279, 281 (6th Cir.
2008)). To demonstrate plain error, Brown must show: “(1) that an error occurred in the district
court; (2) that the error was plain, i.e., obvious or clear; (3) that the error affected defendant’s
substantial rights; and (4) that this adverse impact seriously affected the fairness, integrity, or
public reputation of the judicial proceedings.” United States v. Coppenger, 775 F.3d 799, 803
(6th Cir. 2015) (citing United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc)).

3

Case: 16-2776

Document: 38-2

Filed: 03/12/2018

Page: 4

No. 16-2776, United States v. Brown
Section 4B1.1(a) of the Sentencing Guidelines states:
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.
U.S.S.G. § 4B1.1(a). The Sentencing Guidelines define “controlled substance offense” as:
an offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that prohibits the manufacture, import, export, distribution,
or dispensing of a controlled substance (or a counterfeit substance) or the
possession of a controlled substance (or a counterfeit substance) with intent to
manufacture, import, export, distribute, or dispense.
U.S.S.G. § 4B1.2(b).
To determine whether a given conviction qualifies as a predicate offense under
§ 4B1.1(a), this court typically employs the “categorical approach.” House, 872 F.3d at 753
(citing Mathis v. United States, 136 S. Ct. 2243, 2248-49 (2016)). However, where the statute of
conviction is “divisible,” meaning that it lists elements in the alternative such that the statute
“comprises multiple, alternative versions of the crime,” this court utilizes the “modified
categorical approach.” Id. (quoting Descamps v. United States, 570 U.S. 254, 261-62 (2013)).
This approach requires sifting through the alternative elements to analyze whether any of them
“matches an element in the generic offense,” and if one does, “consult[ing] a limited class of
documents . . . to determine which alternative formed the basis of the defendant’s prior
conviction.” Id. (quoting Descamps, 570 U.S. at 257); see also Mathis, 136 S. Ct. at 2248-49.

4

Case: 16-2776

Document: 38-2

Filed: 03/12/2018

Page: 5

No. 16-2776, United States v. Brown
B.

Analysis

1. The Michigan Drug Convictions Qualify as Predicate Offenses Under U.S.S.G. §
4B1.1(a)
On appeal, Brown’s primary contention is that the aforementioned Michigan drug
convictions do not qualify as sufficient predicate offenses to trigger the career offender
enhancement under U.S.S.G. § 4B1.1(a) because he was not sentenced to a period of
imprisonment exceeding one year for either offense, and therefore, the offenses are not
“controlled substance offenses” as defined by U.S.S.G. § 4B1.2(b). This argument is unavailing.
As a preliminary matter, Brown conceded in his sentencing memorandum that he is a
career offender. Consequently, Brown has waived his right to challenge that finding on appeal.
See United States v. McBride, 826 F.3d 293, 294-95 (6th Cir. 2016) (“A defendant waives the
argument that a sentencing enhancement does not apply by ‘explicitly agreeing’ that it does . . .
.” (citation omitted)). For this reason, the district court did not plainly err in finding that Brown
is a career offender under § 4B1.1(a).
In any event, even if Brown had challenged this finding before the district court, he
would have not succeeded. Brown’s two Michigan drug convictions at issue are for delivery or
manufacture of less than 50 grams of a controlled substance, in violation of Mich. Comp. Laws
§ 333.7401. Violation of this statute is a felony “punishable by imprisonment for not more
than 20 years or a fine of not more than $25,000.00 or both.”

Mich. Comp. Laws

§ 333.7401(2)(a)(iv). This court has previously held–on multiple occasions after conducting a
modified-categorical approach analysis–that a conviction for violating the aforementioned
Michigan statute qualifies as a predicate offense under U.S.S.G. § 4B1.1(a).

See House,

872 F.3d at 753-54; United States v. Tibbs, 685 F. App’x 456, 462-64 (6th Cir. 2017).

5

Case: 16-2776

Document: 38-2

Filed: 03/12/2018

Page: 6

No. 16-2776, United States v. Brown
Accordingly, the district court did not err in finding that Brown’s Michigan drug convictions
were a sufficient trigger for the career-offender classification pursuant to U.S.S.G. § 4B1.1(a).
To the extent that Brown argues that the Michigan drug convictions do not qualify as
felony predicate offenses because he was not sentenced to a period of imprisonment for either
offense, this argument misses the mark.1 U.S.S.G. § 4B1.2 defines “prior felony conviction” as
“a prior adult federal or state conviction for an offense punishable by death or imprisonment for
a term exceeding one year, regardless of whether such offense is specifically designated as a
felony and regardless of the actual sentence imposed.” U.S.S.G. § 4B1.2 comment. (n.1.)
(emphasis added); see also United States v. Solomon, 592 F. App’x 359, 361 (6th Cir. 2014)
(holding that a defendant’s prior felony conviction counted for purposes of the Sentencing
Guidelines because it was punishable by imprisonment exceeding one year). Under Michigan
law, both of Brown’s Michigan drug convictions are expressly designated felonies and are
punishable by up to twenty years’ imprisonment. Mich. Comp. Laws § 333.7401(2)(a)(iv).
Accordingly, we hold that the district court did not err in finding that Brown’s Michigan drug
convictions were felonies for the purposes of U.S.S.G. § 4B1.2.
Brown further contends that the Michigan drug convictions should not have scored any
criminal history points, rendering them ineligible for career offender scoring purposes. Brown
again relies on the notion that he did not serve a period of incarceration for these offenses. As an
initial, factual matter, we have already noted that Brown’s convictions at issue resulted in
incarceration. Furthermore, as a legal matter, Brown’s argument is inapposite.

1

 This argument is also factually incorrect, as Brown served periods of imprisonment as a result of both convictions.
For the 2013 conviction, Brown was initially sentenced to six months in jail, with credit for 16 days served and the
remainder suspended. Brown later received additional sentences of 5 days and 30 days, as wells as two consecutive
weekends, for violating the terms of his probation. With respect to the 2014 conviction, Brown received a
suspended sentence of one year; he later received additional sentences of 5 days and 30 days, and two consecutive
weekends for this conviction as well, as a result of violating the terms of his probation.

6

Case: 16-2776

Document: 38-2

Filed: 03/12/2018

Page: 7

No. 16-2776, United States v. Brown
A prior conviction cannot serve as a career offender predicate if the conviction does not
score at least one criminal history point. U.S.S.G. § 4B1.2(c). In order for prior convictions to
count, the prior convictions must be “counted separately under the provisions of § 4A1.1(a), (b),
or (c).” Id. Under U.S.S.G. § 4A1.1, criminal history points are tallied as follows:
(a) Add 3 points for each prior sentence of imprisonment exceeding one
year and one month.
(b) Add 2 points for each prior sentence of imprisonment of at least sixty
days not counted in (a).
(c) Add 1 point for each prior sentence not counted in (a) or (b), up to a
total of 4 points for this subsection.
U.S.S.G. § 4A1.1. Notably, “[a] conviction for which the imposition or execution of sentence
was totally suspended or stayed shall be counted as a prior sentence.” U.S.S.G. § 4A1.2(a)(3).
Consequently, in the instant matter, Brown’s Michigan drug convictions each warranted a
criminal history point and were therefore properly scored under U.S.S.G. § 4A1.1(c).
Lastly, Brown maintains that the district court erred by relying on the PSR to determine
whether Brown’s Michigan drug convictions are adequate predicate offenses for the career
offender enhancement. Brown contends that the only evidence in the record is the PSR’s
reliance upon a state court PSR, which cannot properly be utilized for a sentence enhancement
under Shepard v. United States, 544 U.S. 13 (2005), and United States v. King, 853 F.3d 267 (6th
Cir. 2017). In Shepard, the Supreme Court held that “where a prior conviction for violating a
statute with alternative elements was the result of a plea, a court answering the [Armed Career
Criminal Act] predicate question could attempt to identify the element underlying the conviction
by consulting the plea-colloquy transcript, the written plea agreement, or ‘a record of comparable
findings of fact adopted by the defendant upon entering the plea.’” King, 853 F.3d at 272
(quoting Shepard, 544 U.S. at 20). Although Brown’s argument is not entirely without merit, it
still falls short of succeeding.
7

Case: 16-2776

Document: 38-2

Filed: 03/12/2018

Page: 8

No. 16-2776, United States v. Brown
This court has held that “[b]y failing to object to the presentence report, [a defendant]
accept[s] all of the factual allegations contained in it.” Vonner, 516 F.3d at 385. Moreover, “a
district court may rely on unchallenged PSR findings to establish the existence of prior
convictions.” United States v. Hockenberry, 730 F.3d 645, 666 (6th Cir. 2013) (emphasis
omitted) (citing United States v. Birdsong, 330 F. App’x 573, 586 (6th Cir. 2009) (holding that a
district court did not err in relying on a PSR when the defendant did not explicitly challenge “the
correctness of any particular conviction identified in the report”)). At the same time, this court
has also determined that a district court could not rely on a factual description within a PSR to
establish the specific nature of a defendant’s conviction, even when the defendant failed to object
to the PSR. See United States v. Wynn, 579 F.3d 567, 576-77 (6th Cir. 2009).
Notwithstanding, we find the instant matter analogous to the circumstances found in
Hockenberry. In Hockenberry, this court found that the district court did not plainly err in
finding sufficient proof for one of the defendant’s prior convictions in reaching an Armed Career
Criminal Act determination. 730 F.3d at 667. There, the district court relied on the PSR
prepared for the defendant, which found that the defendant had numerous prior convictions, none
of which the defendant challenged prior to sentencing. Id. Just as Brown conceded the existence
of the Michigan drug convictions in his sentencing memorandum, the defendant in Hockenberry
also conceded that he had been convicted of the prior offenses. Id. This court found that the
district court in Hockenberry had a sufficient basis to find the existence of the predicate offense,
id., and we do the same here.
The matter currently before the court is also analogous to the circumstances found in
United States v. Thomas, 13 F. App’x 233 (6th Cir. 2001). In Thomas, this court held that a
district court did not plainly err by relying on (1) notice of a defendant’s prior convictions filed

8

Case: 16-2776

Document: 38-2

Filed: 03/12/2018

Page: 9

No. 16-2776, United States v. Brown
by the government and (2) a PSR discussing those prior convictions, to find that the defendant’s
prior convictions triggered the Armed Career Criminal Act’s sentencing enhancement. Id. at
241-43. The defendant in Thomas did not object to the existence of the prior convictions as
delineated in the government’s notice, or in the PSR. Id. at 241. Here, as in Thomas, the
government filed a notice of Brown’s prior convictions at issue. Brown failed to object to the
information regarding the Michigan drug convictions found in the government’s notice, just as
he failed to object to the PSR’s depiction of the same facts. Under this court’s rationale in
Hockenberry and Thomas, it was not plain error for the district court to rely on the government’s
notice and the PSR to find that Brown’s criminal history contained two career-offender predicate
convictions.
Moreover, we find Brown’s reliance on King to be misplaced because King addressed the
issue of a district court’s reliance on Shepard documents within the context of determining
whether prior offenses were “committed on occasions different from one another” within the
meaning of the Armed Career Criminal Act. King, 853 F.3d at 268-69. Whether Brown’s prior
offenses were committed on different occasions is far from the dispositive, or even relevant,
question here. Consequently, we hold that the district court did not plainly err in relying on the
PSR to determine that Brown’s Michigan drug convictions were predicate offenses for careeroffender classification under U.S.S.G. § 4B1.1(a).
2. Brown’s Trial Counsel Was Not Constitutionally Ineffective
Brown further asserts that his trial counsel was constitutionally ineffective for failing to
challenge the career offender calculation. This argument is unavailing. This court generally
refrains from addressing ineffective assistance of counsel claims on direct appeal, except in rare
cases where “the record is adequate to assess the merits of defendant’s allegations.” United

9

Case: 16-2776

Document: 38-2

Filed: 03/12/2018

Page: 10

No. 16-2776, United States v. Brown
States v. Southers, 866 F.3d 364, 371 (6th Cir. 2017) (quoting United States v. Bradley, 400 F.3d
459, 462 (6th Cir. 2005)). Here, we find that the record in this matter is sufficient for review of
Brown’s ineffective assistance of counsel claim.
To succeed on an ineffective assistance of counsel claim, Brown must demonstrate that
his trial “counsel’s performance (1) ‘fell below an objective standard of reasonableness’ and
(2) was prejudicial, i.e., ‘but for counsel’s unprofessional errors, the result of the proceeding
would have been different.’” United States v. Franklin, 415 F.3d 537, 556 (6th Cir. 2005)
(quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)). For the reasons discussed
above, Brown was properly sentenced as a career offender.

Brown clearly met all three

conditions necessary to be sentenced as a career offender pursuant to U.S.S.G. § 4B1.1(a).
Therefore, any objections to the career offender calculation would have been without merit. See
United States v. Martin, 45 F. App’x 378, 381-82 (6th Cir. 2002) (“Failure of trial counsel to
raise wholly meritless claims cannot be ineffective assistance of counsel.” (citing Strickland,
466 U.S. at 686-87)).
Furthermore, Brown’s trial counsel successfully secured a sentencing variance, which
resulted in a sentence 22 months below the low-end of the applicable Guidelines range.
Accordingly, Brown cannot establish either constitutionally deficient performance or actual
prejudice under Strickland, and his claim for ineffective assistance of counsel must fail.
III.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s sentence in this matter.

10