United States v. Brown , 253 F. App'x 324 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4682
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHRISTOPHER M. BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:03-cr-00394-JRS)
Submitted: October 29, 2007 Decided: November 8, 2007
Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.
Affirm by unpublished per curiam opinion.
Edwin F. Brooks, EDWIN F. BROOKS, L.L.C., Richmond, Virginia, for
Appellant. Chuck Rosenberg, United States Attorney, Roderick C.
Young, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Brown appeals the sentence he received after
we remanded his case for resentencing under United States v.
Booker, 543 U.S. 220 (2005). Brown was convicted by a jury of
conspiracy under the Racketeer Influenced and Corrupt Organizations
Act (“RICO”), in violation of 18 U.S.C. § 1962(d) (2000), and
conspiracy to distribute and possess with intent to distribute
cocaine base, in violation of 21 U.S.C. § 846 (2000). Initially,
he received a 324-month sentence of imprisonment. Brown appealed
his convictions and sentence. See United States v. Batts, 2006 WL
712758 (4th Cir.) (unpublished), cert. denied, 127 S. Ct. 160(2006). We affirmed his convictions, but reversed his sentence and
remanded to the district court for resentencing under the advisory
guidelines in light of Booker. Brown appeals from resentencing,
challenging the district court’s application of the enhancement
under 21 U.S.C. § 841 (2000) to his sentence. Finding no
reversible error, we affirm.
On remand, Brown challenged for the first time the
application of the armed career criminal sentencing enhancement
under § 841 to his sentence. Brown objected to the use of the
prior conviction listed in the Government’s 21 U.S.C.§ 851 (2000)
notice as a predicate offense, arguing it was invalid for purposes
of the enhancement. Brown contended the use of the prior
conviction was improper because the prior offense was related to
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his current conspiracy conviction and his guilty plea to the prior
conviction was involuntary. The district court overruled Brown’s
objection and resentenced him to 240 months’ imprisonment—the
alternate sentence it had announced at the original sentencing.
Brown first argues on appeal that the district court
erred in applying the § 841(b)(1)(A) enhancement to his sentence
because the factual basis for the prior conviction was introduced
at trial as evidence in the Government’s case and was thus related
to the conspiracy. We find the district court did not err in
enhancing Brown’s sentence because a conviction occurring during
the course of a conspiracy can form the basis for a sentencing
enhancement in a prosecution of the conspiracy. See United States
v. Howard, 115 F.3d 1151, 1158 (4th Cir. 1997). The Government
presented substantial evidence that Brown engaged in the conspiracy
even after his February 2000 conviction became final. Brown’s
continued participation in the conspiracy after his prior drug
conviction “is precisely the type of recidivism to which section
841 is addressed.” See id.Brown next argues the prior conviction used to enhance
his sentence was unconstitutional because his guilty plea on the
prior conviction was involuntary. We find the record shows Brown’s
guilty plea was knowing and voluntary, and thus was not
unconstitutional.
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Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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