United States v. Brown , 216 F. App'x 169 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
2-5-2007
USA v. Brown
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2822
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No.: 06-2822
UNITED STATES OF AMERICA
v.
LISA A. BROWN,
Appellant
____________________
On Appeal from the United States District Court
for the District of New Jersey
District Court No.: 03-cr-00354-8
District Judge: The Honorable Jerome B. Simandle
____________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 14, 2006
Before: SMITH and ROTH, Circuit Judges,
and YOHN, District Judge*
(Filed: February 5, 2007 )
____________________
OPINION
____________________
_____________________
*The Honorable William H. Yohn Jr., Senior District Judge for the Eastern District
of Pennsylvania, sitting by designation.
YOHN, District Judge.
Lisa A. Brown admitted to violating the conditions of her probation. As a result,
the District Court revoked her probation and sentenced her to five months imprisonment.
Brown appeals the judgment of sentence. For the reasons that follow, we will affirm.
Brown was accordingly charged on May 6, 2003 with producing and using
fictitious financial instruments purportedly under the authority of the United States, in
violation of 18 U.S.C. §§ 371 and 514. The indictment also charged seven co-defendants.
On September 9, 2004, Brown pled guilty to a superseding information charging Brown
with misprision of a felony: conspiracy to pass and possess false and fictitious
instruments of the United States. On January 4, 2005, the District Court sentenced Brown
to two years of probation, required four months of home confinement, and imposed a fine
of one thousand dollars. On June 20, 2005, the Probation Office filed a petition with the
District Court alleging Brown had violated her probation by: (1) failing to report to the
Probation Office for a mandatory collection of a DNA blood sample, (2) failing to seek
lawful employment or document her claimed self-employment, (3) refusing to accept mail
sent by the Probation Office, and (4) failing to submit to a required monthly supervision
report.
The District Court issued a summons for Brown to appear at a hearing scheduled
for July 7, 2005. Brown failed to attend. The District Court scheduled another hearing
for September 22, 2005. Brown again failed to attend. As a result, the District Court
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issued a warrant for Brown’s arrest. For three months thereafter, Brown remained a
fugitive. Authorities eventually arrested Brown on January 20, 2006. On February 2,
2006, Brown denied violating her probation. On February 23, 2006, as a result of
Brown’s odd behavior and statements–which nearly led the District Court to hold her in
contempt–the District Court granted the competency evaluation requested by Brown’s
counsel. Brown claimed that, as a Moorish American National, she was not required to
comply with local, state, and federal laws. Catherine Barber, Ph.D., evaluated Brown and
found her competent.
On April 18, 2006, Brown admitted to violating her probation by refusing to accept
mail sent by the Probation Office. The remaining charges were dismissed. The court
held a sentencing hearing that lasted for two days. At the hearing, Dr. Barber testified
that Brown was competent. After considering the range of sentences suggested by the
Sentencing Guidelines 1 for the probation violation–three to nine months of
imprisonment–and for the original offense of misprision of a felony–four to nine months
of imprisonment–the District Court revoked Brown’s sentence and sentenced her to five
months of imprisonment on May 15, 2006. In reaching that sentence, the District Court
noted, in particular, the significance of Brown’s fraud against the United States and her
breach of the court’s trust. Brown timely appealed the judgment of sentence. On appeal,
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The suggested sentence for the probation violation was based on a violation that was Grade C
and a Criminal History of Category I. The now-advisory sentencing range for the original
offense was based on a total Offense Level of nine and a Criminal History Category I.
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Brown argues that the District Court failed to consider explicitly all of the relevant factors
enumerated in 18 U.S.C. § 3553(a), and that the District Court imposed an unreasonable
sentence.
We exercise jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 because it
is a final decision of the District Court, and pursuant to 18 U.S.C. § 3742(a)(1) for
sentences imposed in violation of the law. See United States v. Cooper, 2006 U.S. App.
LEXIS 8075, at **5-9 (3d Cir. Feb. 14, 2006). Before United States v. Booker, 534 U.S.
220 (2005), we reviewed sentences imposed for violations of probation or supervised
release for “abuse of discretion that resulted in a ‘plainly unreasonable’ sentence.”
United States v. Dees, 467 F.3d 847, 852 (3d Cir. 2006) (citing United States v. Schwegel,
126 F.3d 551, 555 (3d Cir. 1997)). Brown contends that, in light of Booker, the “plainly
unreasonable” standard of review has been replaced with one of “reasonableness.”
Because we conclude that Brown’s sentence satisfies either standard, we need not
determine at this time which standard applies to sentences imposed for violations of
probation.
Brown broadly asserts that the District Court failed to articulate explicitly, on the
record, its consideration of the § 3553(a) factors. We find otherwise. Under 18 U.S.C. §
3565(a)(2), if a “defendant violates a condition of probation at any time prior to the
expiration . . . of probation, the court may, after a hearing . . . , and after considering the
factors set forth in [§] 3553(a) to the extent they are applicable . . . revoke the sentence of
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probation and resentence the defendant under subchapter A.” § 3565(a)(2). Specifically,
the District Could should consider the non-binding policy statements of Guidelines
Manual Chapter 7. See § 3553(a)(4)(B). The District Court need not make specific
findings with respect to each of the § 3553(a) factors that it considered. Cooper, 2006
U.S. App. LEXIS 8075, at **11. Rather, the record must show that the District Court
gave meaningful consideration to the § 3553(a) factors and addressed the arguments
raised by the parties that have recognized legal merit. Id.
The record makes abundantly clear that the District Court meaningfully considered
the relevant § 3553(a) factors. In fact, the District Court explicitly articulated its
consideration of the factors stated above. (J.A. 371-381.) Not only did it consider
Brown’s breach of the court’s trust, but the District Court also considered the nature of
her probation violations and underlying offense, her disrespect for the court, and the need
for deterrence. After “taking into account all the factors under [§] 3553(a)” (J.A. 377),
the District Court sentenced Brown to five months of imprisonment. Therefore, after
reviewing the record, we conclude that the District Court adequately considered the §
3553(a) factors.
Brown also argues that her sentence is unreasonable because her probation
violation warranted leniency. She asserts that her sentence is greater than necessary to
fulfill the purposes of sentencing. In support of this assertion, Brown notes that her
probation violation was non-violent and influenced by her religious beliefs and
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membership to the Moorish American Temple. We reject this argument. As shown
below, in reaching Brown’s sentence, the District Court appropriately considered
Brown’s request for leniency due to her religious belief and the circumstances
surrounding her probation violation. (J.A. 369-80.)
The District Court found that Brown’s conduct, while on probation, was the most
“contumacious and disrespectful” of any defendant to have come before the court. The
District Court noted that Brown had disregarded the instructions of her probation officer,
refused to receive mail from the Probation Office, and failed to appear for hearings
regarding her probation violations. Further, the District Court recognized the influence of
Brown’s religious beliefs and membership to the Moorish American Temple, but found
that others who shared the same belief system did not break the law. In light of Brown’s
involvement in a significant fraud against the United States–which “did not appear to be
casual or sporadic” (J.A. 378)–and her misconduct during probation, the court ruled out
continuing and extending her probation. The District Court concluded that “[i]t’s
necessary to [deter] others from participating in such schemes” and to “deter any future
criminal conduct by Ms. Brown.” (J.A. 379.) The District Court also took into account
the mitigating factors, including Brown’s remorse for her misconduct and her mother’s
need for assistance. However, the District Court additionally noted that after her previous
sentencing, Brown “didn’t keep her promise and seemed as virulent as ever in
undermining the probation department as she had previously attempted to undermine this
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forum.” (J.A. 380.) After considering these factors, the District Court imposed a
sentence toward the lower-end of the range suggested by the sentencing guidelines. Thus,
the District Court’s sentence was not unreasonable.
We conclude that the District Court properly considered the relevant § 3553(a)
factors in arriving at Brown’s sentence, and that the District Court’s sentence was not
“plainly unreasonable.” Further, we conclude that the sentence was “reasonable.”
Therefore, we will affirm the District Court’s judgment of sentence.
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