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United States v. Jeffrey Brown ( 2019 )


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  •      Case: 19-10103      Document: 00515223936         Page: 1    Date Filed: 12/05/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-10103                        December 5, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JEFFREY CHLEO BROWN,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CR-242-1
Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
Jeffrey Chleo Brown appeals the sentence imposed following his guilty
plea conviction for one count of wire fraud. The district court varied above the
advisory guidelines range and sentenced him to 40 months in prison.
Brown contends that the district court violated Federal Rule of Criminal
Procedure 32(i)(3)(B) because the court did not resolve a factual dispute during
the sentencing hearing. He indicates that there was a controverted issue as to
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 19-10103     Document: 00515223936     Page: 2   Date Filed: 12/05/2019
No. 19-10103
the accuracy of a victim-impact statement filed by the president of the company
where he used to work. Brown maintains that the district court was required
to resolve whether the statement correctly represented that Brown’s criminal
acts—i.e., using company credit cards to make personal purchases and altering
statements and bills to reflect that the purchases were valid business
expenses—had substantial economic consequences for his employer and nearly
caused its collapse.
The record reflects that Brown failed to raise the issue of Rule 32(i)(3)(B)
at sentencing and did not otherwise argue that the district court did not resolve
a disputed issue or make relevant findings or rulings. Thus, our review is for
plain error. See United States v. Reyna,
    358 F.3d 344
    , 349-50 (5th Cir. 2004)
(en banc); United States v. Esparza-Gonzales,
    268 F.3d 272
    , 274 (5th Cir. 2001).
Rule 32(i)(3)(B) states that a district court must, for any disputed portion
of the presentence report or other controverted matter, rule on the dispute or
determine that a ruling is unnecessary because the matter will not affect or be
considered at sentencing. FED. R. CRIM. P. 32(i)(3)(B). We have not previously
addressed whether Rule 32(i)(3)(B) requires resolution of disputed issues that
arise from a victim-impact statement or mandates a ruling as to any contested
issue—whether strictly factual or not—that is contested at sentencing. Given
the lack of controlling authority, and in light of contrary jurisprudence from
other courts, see, e.g., United States v. Petri,
    731 F.3d 833
    , 838-42 (9th Cir.
2013), any error by the district court in not resolving the alleged dispute in
accordance with Rule 32(i)(3)(B) was not clear or obvious. See Puckett v. United
States,
    556 U.S. 129
    , 135 (2009); United States v. Salinas,
    480 F.3d 750
    , 759
(5th Cir. 2007). Moreover, Brown has not shown a reasonable probability that
he would have received a lower sentence but for the district court’s alleged
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Case: 19-10103   Document: 00515223936     Page: 3   Date Filed: 12/05/2019
No. 19-10103
error. See
    Puckett, 556 U.S. at 135
    ; United States v. Davis,
    602 F.3d 643
    , 647
(5th Cir. 2010).
AFFIRMED.
3