United States v. Byron Brown , 492 F. App'x 421 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5323
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BYRON KEITH BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (1:09-cr-00303-WMN-1)
Submitted: May 25, 2012 Decided: August 15, 2012
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Sicilia Chinn Englert, LAWLOR & ENGLERT, LLC, Greenbelt,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Joyce K. McDonald, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial for multiple counts of wire
fraud and money laundering, Byron Keith Brown was convicted and
sentenced to a total of 180 months’ imprisonment. In this
appeal, Brown contends that the district court abused its
discretion in denying his motions for a continuance and a new
trial and erred in its application of U.S. Sentencing Guidelines
Manual (“USSG”) § 2B1.1(b)(2)(A), (b)(8)(C) (2009). We affirm.
Brown’s arguments with respect to his motions relate
to the Government’s production of electronic discovery, which
included forensic images of Brown’s computer. Brown asserts
that he obtained access to the data only shortly before trial
when he discovered that the files were not organized in any
meaningful form, complicating his efforts to locate relevant
documents. He compares the data he received with the
Government’s utilization of a virtual copy of Brown’s computer,
allowing the Government to navigate through the data exactly as
it had appeared to the user. Brown argues that the Government
could have provided him with a virtual copy and contends that
its failure to do so limited his ability to prepare a defense to
such a degree that the district court abused its discretion in
failing to grant a continuance and, following the verdict, a new
trial.
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We review a district court’s decision to deny a
continuance and a new trial for abuse of discretion. United
States v. Ibisevic, 675 F.3d 342, 349 (4th Cir. 2012) (new
trial); United States v. Cole, 631 F.3d 146, 156 (4th Cir. 2011)
(continuance). “The denial of a continuance contravenes a
defendant’s Sixth Amendment right to counsel only when there has
been an unreasoning and arbitrary insistence upon
expeditiousness in the face of a justifiable request for delay.”
United States v. Hedgepeth, 418 F.3d 411, 423 (4th Cir. 2005)
(internal quotation marks omitted). Even if we determine that
the district court abused its discretion in denying a
continuance, Brown “must show that the error specifically
prejudiced his case in order to prevail.” Id. at 419.
We note that the emails Brown sought were available
from materials provided by the Government apart from the
forensic images, and that the Government made its records
available for inspection and offered to print copies of the
documents Brown had difficulty accessing. Given these facts,
coupled with the significant delay that a continuance would have
demanded as a result of defense counsel’s availability, we
cannot say that the district court’s ruling was an abuse of
discretion. See id.; see also Morris v. Slappy, 461 U.S. 1, 11
(1983) (stating that “problem[] . . . of assembling the
witnesses, lawyers, and jurors at the same place at the same
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time” necessitates granting “[t]rial judges . . . a great deal
of latitude in scheduling trials”). Nor can we say, given
Brown’s failure to direct us to any evidence that was
unavailable to him at trial, that the district court abused its
discretion in denying Brown’s motion for a new trial. See
United States v. Fulcher, 250 F.3d 244, 249 (4th Cir. 2001)
(recounting five-part test for evaluating motion for new trial
based on newly discovered evidence).
Next, Brown challenges the district court’s
application of two sentencing enhancements. In reviewing the
district court’s application of the Guidelines, we review
findings of fact for clear error and questions of law de novo.
United States v. King, 673 F.3d 274, 281 (4th Cir. 2012). A
sentencing enhancement must be supported by a preponderance of
the evidence. United States v. Blauvelt, 638 F.3d 281, 293 (4th
Cir.), cert. denied, 132 S. Ct. 111 (2011).
Brown argues that the district court erred in finding
that there were more than ten victims and applying the relevant
two-level enhancement. He contends that the Government produced
only seven victims who suffered a monetary loss. The Guidelines
provide for a two-level enhancement where the defendant’s fraud
“(i) involved 10 or more victims; or (ii) was committed through
mass-marketing.” USSG § 2B1.1(b)(2)(A). Because Brown conceded
in the district court that his website met the mass-marketing
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definition, see USSG § 2B1.1 n.4(A), we need not address his
challenge to the number of victims involved in the offense. See
United States v. Garrett, 243 F.3d 824, 830 (4th Cir. 2001)
(“[W]e can affirm [a] sentence on the basis of any conduct [in
the record] that independently and properly should result in an
increase in the offense level by virtue of the enhancement.”)
(internal quotation marks omitted). We therefore conclude that
the district court properly applied this enhancement.
Finally, Brown argues that the district court erred in
applying a two-level enhancement, pursuant to USSG
§ 2B1.1(b)(8)(C), * for violating an administrative order because
the order in question was not a final agency adjudication.
Because Brown failed to raise this argument in the district
court, we review it for plain error. United States v.
Massenburg, 564 F.3d 337, 342 n.2 (4th Cir. 2009) (“[A]n
objection on one ground does not preserve objections on
different grounds.”). Accordingly, Brown “must show that an
error was made, is plain, and affected his substantial rights.”
United States v. Slade, 631 F.3d 185, 190 (4th Cir.), cert.
denied, 131 S. Ct. 2943 (2011). For purposes of plain error
*
This provision appears as § 2B1.1(b)(9)(C) in the 2011
edition of the Guidelines.
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review, “‘[p]lain’ is synonymous with ‘clear’ or, equivalently,
‘obvious.’” United States v. Olano, 507 U.S. 725, 734 (1993).
On this record, Brown is unable to show that the
district court plainly erred in applying the enhancement. Brown
asserts that he appeared for a hearing and that the agency took
no further action. The Government responds that the
administrative record shows that Brown violated the order and
that he committed perjury. However, because the agency’s cease
and desist order is the sole evidence in the record concerning
the administrative proceedings, it is neither clear nor obvious
that the district court erred in applying the enhancement. See
United States v. Goldberg, 538 F.3d 280, 291 (3d Cir. 2008)
(stating general rule that appellate courts will “impose the
enhancement after a meaningful negotiation or interaction led
the agency to issue a directive that the defendant subsequently
violated”). Irrespective of the order’s finality, Brown asserts
that he complied with the order by moving his business from
Washington, D.C., to Wilmington, Delaware. The record shows,
however, that Brown continued to conduct business in Washington.
Brown therefore is entitled to no relief on this claim.
Based on the foregoing, we affirm the judgment of the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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