United States v. Brown , 381 F. App'x 261 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7220
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TYRELL DANTE BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:00-cr-00094-RGD-2)
Submitted: April 9, 2010 Decided: June 3, 2010
Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Keith Loren
Kimball, Assistant Federal Public Defender, Norfolk, Virginia,
for Appellant. Neil H. MacBride, United States Attorney, Howard
J. Zlotnick, Richard D. Cooke, Assistant United States
Attorneys, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tyrell Dante Brown appeals from the partial grant of
his 18 U.S.C. § 3582 (2006) motion for reduction of sentence
based upon the crack cocaine amendments to the Sentencing
Guidelines. We affirm.
Brown’s original Guidelines range was 188 to 235
months, and he was sentenced to 204 months incarceration.
Brown’s amended Guidelines range, after application of Amendment
715, was 151-188 months. The Government agreed that Brown was
eligible for a reduction but it opposed such a reduction based
upon Brown’s alleged danger to the community. In support, the
Government averred that Brown had repeated incidents of violent
behavior in prison.
On June 2, 2009, the district court ruled that it was
required to “act as if the Crack Cocaine Amendments were in
effect at the time of sentencing.” Thus, the court stated that
it would “not consider events and circumstances that occurred
subsequent to sentencing.” The court then stated it considered
the sentencing factors and granted the motion, reducing Brown’s
sentence to 188 months.
On June 11, the Government filed a motion to
reconsider under Fed. R. Crim. P. 35(a). The Government
asserted that the court was permitted to consider Brown’s
post-sentencing conduct under the applicable Guidelines policy
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statements. The district court vacated its June 2 order and
scheduled a hearing on the motion to reconsider. At the
hearing, the court stated that “I was in error, clearly” and
granted the motion to reconsider.
After the hearing, where Brown’s behavior in prison
was discussed in depth, the district entered an order
considering in detail the statutory factors, Brown’s
post-sentencing conduct, and the safety of the public. The
court then granted the motion for reduction of sentence and
imposed a sentence of 196 months. Brown timely appealed. On
appeal, Brown asserts that Rule 35(a) does not permit
reconsideration in this case because the Government did not show
that the district court committed clear error. Brown further
contends that his sentence was an abuse of discretion because it
was above the amended Guidelines range and was greater than the
original reduced sentence.
Rule 35(a) authorizes the reconsideration and
correction of a sentence under two conditions. First, the
motion must be filed within fourteen days, and second, the court
may only correct an “arithmetical, technical, or other clear
error.” United States v. Goodwyn, 596 F.3d 233, 235 (4th Cir.
2010). Here, the Government filed its motion nine days after
the entry of sentence and alleged clear error in the district
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court’s original imposition of sentence. Thus, the district
court had authority to consider the motion.
Under the clear error standard of review, a court may
reverse only if “left with the definite and firm conviction that
a mistake has been committed.” United States v. Stevenson, 396
F.3d 538, 542 (4th Cir. 2005); see also United States v. Ward,
171 F.3d 188, 191 (4th Cir. 1999) (holding that Rule 35 permits
correction of a “misperception of the governing law”). There is
little doubt in this case that the district court had a
“definite and firm conviction” that it had erred by failing to
consider Brown’s post-sentencing conduct. Moreover, the
district court’s determination that its initial order was in
error was correct; the Guidelines very clearly provide that a
district court “may consider post-sentencing conduct of the
defendant.” U.S. Sentencing Guidelines Manual § 1B1.10,
comment. n.1(B)(iii) (2008). Because the district court
properly found that its June 2 order was clearly erroneous, the
court acted appropriately by granting the Government’s motion
and reconsidering Brown’s sentence.
Finally, Brown contends that, under our decision in
United States v. Dunphy, 551 F.3d 247 (4th Cir.), cert. denied,
129 S. Ct. 2401 (2009), the district court was constrained to
sentence Brown within the amended Guidelines range. Thus, the
196-month sentence was error, because it exceeded the amended
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Guidelines range of 151-188 months. We reject Brown’s argument.
While Dunphy concluded that a district court must limit the
extent of its sentence reduction to the minimum of the amended
Guidelines range, id. at 251, Dunphy also recognized that the
district court is not required to reduce a sentence, even if the
defendant is eligible for such a reduction. Id. at 252.
Moreover, even should the court decide to reduce a sentence, it
is not required to do so to the full extent authorized by the
amended Guidelines. Id. Instead, the court should consider the
statutory sentencing factors and determine whether a sentence
reduction is appropriate, limited only by the explicit
requirement that the sentence not be below the bottom end of the
amended Guidelines range. See id. at 252-54. Thus, the
district court did not err by imposing a reduced sentence above
the amended Guidelines range. Moreover, we find that the
district court appropriately considered the statutory sentencing
factors and Brown’s particular circumstances on reconsideration
and did not abuse its discretion in choosing the sentence
imposed.
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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