USA v. James Brown

Filing

OPINION [1676302] filed (Pages: 7) for the Court by Judge Griffith. [16-3076]

USCA Case #16-3076

Document #1676302

Filed: 05/23/2017

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Submitted March 20, 2017

Decided May 23, 2017

No. 16-3076
UNITED STATES OF AMERICA,
APPELLEE
v.
JAMES WENDELL BROWN, ALSO KNOWN AS JIMMY,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cr-00155-1)

Barbara E. Kittay, appointed by the court, was on the brief
for appellant.
Elizabeth Trosman and Lauren R. Bates, Assistant U.S.
Attorneys, were on the brief for appellee.
Before: GARLAND, Chief Judge, GRIFFITH, Circuit Judge,
and SENTELLE, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: A trial court imposed on James
Brown a stiffer sentence than the U.S. Sentencing Guidelines
recommend. But the court followed proper procedures, and the

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sentence was not so harsh as to be an abuse of discretion. We
therefore affirm Brown’s sentence against his procedural and
substantive challenges.
I
The facts are grim. In 2012, James Brown was drawn into
an online sting operation with a police detective. In a plea
agreement, Brown conceded that the government had clear and
convincing evidence that he had asked for sex with a
prepubescent child, talked about having sexually abused
certain minors every chance he got, expressed a preference for
very young children, and abused his daughter and
granddaughters when they were as young as three to six years
old. As part of the plea agreement, Brown pled guilty to one
count of distributing child pornography. See 18 U.S.C.
§ 2252(a)(2)(A).
For his cooperation, federal and state officials agreed not
to prosecute Brown further for any of the conduct to which he
admitted. The plea deal also specified an “offense level” under
the Guidelines for the sentencing court to consider. An offense
level is calculated by taking the number assigned by the
Guidelines to the defendant’s “base offense” and adding or
subtracting points as needed to reflect certain aggravating or
mitigating factors. See 18 U.S.C. § 3551 et seq. In Brown’s
case that calculation yielded an offense level of 30, for which
the Guidelines recommend 97 to 121 months of incarceration.
The district court, however, was not bound by that range.
It sentenced Brown to 144 months of incarceration and 240
months of supervised release. But Brown appealed and we
vacated that sentence, finding that the judge had neglected
procedures that courts must follow to justify an aboveGuidelines sentence. On remand, the district court imposed the

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same sentence, this time with a more detailed explanation, and
Brown again appealed.
We have authority to review Brown’s sentence under 28
U.S.C. § 1291, and do so in two steps. We first ask if the district
court committed “significant procedural error,” such as by
“failing to adequately explain the chosen sentence.” Gall v.
United States, 552 U.S. 38, 51 (2007). At this step, we review
legal conclusions de novo and factual findings for clear error.
United States v. Jones, 744 F.3d 1362, 1366 (D.C. Cir. 2014).
Next we review the “overall . . . reasonableness” of the
district court’s chosen sentence in light of several statutorily
specified factors, United States v. Warren, 700 F.3d 528, 531
(D.C. Cir. 2012) (quoting United States v. Locke, 664 F.3d 353,
356 n.3 (D.C. Cir. 2011)); see also 18 U.S.C. § 3553(a), but
only for abuse of discretion, United States v. Russell, 600 F.3d
631, 633 (D.C. Cir. 2010).
II
A judge imposing an above-Guidelines sentence must
offer in court, and in writing, a “specific reason” why the
defendant’s case calls for a more severe sentence than other
cases falling within the same Guidelines categories. United
States v. Brown, 808 F.3d 865, 866 (D.C. Cir. 2015) (quoting
18 U.S.C. § 3553(c)(2)). The judge’s explanation must draw on
specific facts about the defendant’s history or conduct; the
demands of deterrence, public safety, rehabilitation, or
restitution for victims that are particular to that case; or some
other factor listed in section 3553(a) of the federal sentencing
statute. See id. at 871; 18 U.S.C. § 3553(a)(1)-(7).
An earlier panel of this court found that the district court
had offered no specific facts at the original sentencing to

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distinguish Brown’s case from others falling into the same
Guidelines categories. For instance, the district court noted that
Brown had “actual[ly] abuse[d]” children over a “period of
time,” but the applicable Guidelines categories already
accounted for Brown’s acts of “sexual abuse or exploitation”
and his “pattern of abuse” (a term denoting multiple instances).
Brown, 808 F.3d at 872. The district court also opined that the
“combination of behaviors to which Brown pled is ‘not conduct
we normally get around here.’” Id. (quoting sentencing
transcript). Yet the legal issue was how Brown’s conduct
compared to offenses falling under the same Guidelines
categories, not offenses committed in the same district. Id. On
the whole, we found, the sentencing court had “mere[ly]
recit[ed]” the 3553(a) factors “without application” to Brown’s
case. And that alone is never enough to assure us of “reasoned
decisionmaking.” Id. at 872 (quoting United States v. Akhigbe,
642 F.3d 1078, 1086 (D.C. Cir. 2011)). We thus vacated
Brown’s original sentence on the ground that the district court
had offered no “specific reason,” based on the 3553(a) factors,
for finding Brown’s case more egregious than other cases
“accounted for in the properly calculated Guidelines range.” Id.
at 871.
On remand, the district court imposed the same sentence,
but this time it met its procedural duty to offer specific reasons.
In general, a court may impose an above-Guidelines sentence
on a particular defendant “based on [aggravating] factors
already taken into account by” the Guidelines calculation for
that defendant, so long as the court can explain how the
Guidelines “do not fully” capture the egregiousness of that
defendant’s conduct. United States v. Ransom, 756 F.3d 770,
775 (D.C. Cir. 2014) (quoting United States v. Richart, 662
F.3d 1037, 1052 (8th Cir. 2011)) (emphasis added). That is, the
court must cite details that are more informative and more
damning (within the framework established by section

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3553(a)) than the generic terms of the applicable Guidelines
categories.
Our earlier opinion in Brown’s case offered suggestions of
what sorts of details might suffice to distinguish his conduct
from other conduct falling under the same Guidelines
categories. In particular, we acknowledged that—as the
government had argued before us—the district court may have
imposed an above-Guidelines sentence to “compensate for the
‘benefits’” that Brown reaped from the promise of state
authorities not to prosecute him in Virginia, where some of his
crimes had occurred. Brown, 808 F.3d at 874. We simply noted
that this possible ground for Brown’s tougher sentence could
not cure the procedural defects in the district court’s ruling
because the district court did not mention this feature of
Brown’s case in connection with the 3553(a) factors or in the
court’s written Statement of Reasons. Id. Nor did the trial judge
explain that “he was imposing an above-Guidelines sentence
because of” this aspect of Brown’s case. Id. (emphasis added).
At resentencing, however, the district court justified
Brown’s sentence partly by appeal to the promise not to
prosecute Brown for crimes committed in Virginia. Brown
responds that it was improper double-counting for the district
court to increase his sentence based on this conduct, which had
already been addressed with a 5-point Guidelines
enhancement. But the district court didn’t simply rely on the
fact that Brown had abused minors in Virginia. The court
thought a second prosecution for Brown’s sexual offenses in a
separate jurisdiction might well have led to a “much more
severe” combined sentence than the enhancement would yield.
J.A. 54. That was one respect in which the district court thought
the Guidelines did not “fully account for” the egregiousness of
Brown’s pattern of abuse.

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The district court gave three other reasons for thinking the
Guidelines didn’t capture the gravity of Brown’s offenses: that
they “did not adequately reflect the seriousness and frequency
of the sexual abuse, the young age of the victims, and the abuse
of trust by someone who was supposed to be protecting his own
daughters and granddaughters.” J.A. 54.
Indeed, Brown’s admission that his victims were as young
as toddlers is more informative, and more damning, than the
relevant Guidelines category, which tells us only that the
victims were under 12 years old or prepubescent. The same
goes for the district court’s lament that the victims were
vulnerable to betrayal as a daughter and granddaughters, not
just “minors,” as specified by the Guidelines; or that the abuse
happened as often as Brown could perpetrate it over several
years, and didn’t simply form a “pattern” in the Guidelines’
sense of two or more cases. See Application Note 1 to § 2G2.2.
Thus, the district court gave several specific and legitimate
grounds for exceeding the Guidelines.
So much for the procedural challenge. The other question
is whether Brown’s sentence was substantively unreasonable,
and thus an abuse of discretion. United States v. Gardellini, 545
F.3d 1089, 1098 (D.C. Cir. 2008). We review aboveGuidelines sentences “under ‘the totality of the circumstances,’
giving ‘due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the
variance.’” Id. (quoting Gall, 522 U.S. at 51).
Here Brown cites the case of a man sentenced to only 78
months for sexual abuse though his victims, too, were relatives.
See United States v. Lucero, 747 F.3d 1242, 1244 (10th Cir.
2014). Decided by the Tenth Circuit, that case does not bind
us. And even if it did, Lucero wouldn’t help Brown. The abuse
in Lucero had occurred only twice. The Guidelines range was

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lower to begin with: 78 to 92 months, not 97 to 121 months.
And the circuit court simply affirmed the man’s sentence,
without saying that a stiffer punishment would have been
irrational.
Weak analogies aside, Brown offers no serious argument
that his sentence was an abuse of discretion, and we doubt he
could. It is hardly unreasonable for a court to extend a 10-year
sentence by two years plus a period of supervised release when
a defendant has been spared another prosecution—and perhaps
many more years of imprisonment—for sexual abuse he
certainly committed. That is especially true where, as in this
case, the abuse was so persistent, the victims so young, and the
betrayal of trust so acute.
III
Finding no procedural defect or abuse of discretion, we
affirm Brown’s sentence.
So ordered.

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