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United States v. Brown

United States Court of Appeals, District of Columbia Circuit

May 23, 2017

United States of America, Appellee
v.
James Wendell Brown, also known as Jimmy, Appellant

          Submitted March 20, 2017

         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

          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 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 above-Guidelines sentence. On remand, the district court imposed the 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. ยง 3553(a), but only ...


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