United States v. Brown , 239 F. App'x 243 ( 2007 )

NOT RECOMMENDED FOR FULL TEXT PUBLICATION
File Name: 07a0610n.06
Filed: August 21, 2007
No. 06-6261
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA ,
Plaintiff, Appellee
On Appeal from the United States District
Court for the Middle District of Tennessee
v.
JERRY RAY BROWN , SR.,
Defendant, Appellant
______________________________/
BEFORE: KENNEDY and COOK, Circuit Judges; and, ALDRICH, District
Judge.*
KENNEDY, Circuit Judge. Jerry Ray Brown, Sr. (Brown Sr.) appeals his 24-month
sentence for credit card fraud, claiming that the sentence, imposed by the district court after he
pleaded guilty, is substantively unreasonable. The United States Sentencing Guidelines
recommended range was 6-12 months. Brown Sr. argues that the district judge failed to cite
compelling reasons for the departure from the Guidelines recommendation, and instead improperly
relied on unreliable evidence and other impermissible factors. We AFFIRM.
BACKGROUND
In March of 2004, Jerrod Wade Brown (Brown Jr.), Brown Sr.’s son, informed the United
States Secret Service (Secret Service) that his financial identity had been stolen by his father. Brown
Sr. had used his son’s social security number and date of birth to open five credit card accounts,
*
The Honorable Ann Aldrich, United States District Judge for the Northern District of Ohio,
sitting by designation.
which carried a collective balance of over $17,000. Brown was indicted and pleaded guilty without
a plea agreement.
The probation office prepared a pre-sentence report (PSR). The preparer of the report
investigated Brown Sr.’s background and contacted his relatives. After this investigation, several
of these relatives mailed letters to the district court. Letters from Karla Kay Burnett (Brown Sr.’s
ex-wife) and Susie Smart (Brown Sr.’s estranged daughter) were described as victim impact
statements and filed in the record. A letter from Joseph Koehler (Brown Sr.’s brother’s stepson) was
also filed in the record. These letters contained numerous allegations of past criminal, fraudulent,
and other reprehensible conduct, allegations the district court described as “outrageous.” Brown Jr.
filed a victim impact statement making similar allegations. In addition, the probation office included
many of the allegations in the PSR. Brown Sr. objected to all of the allegations of past conduct (both
those of charged but dropped and those of uncharged conduct) as not supported by any competent
or credible evidence.
Under the 2005 version of the Guidelines Manual, Brown Sr.’s recommended range, taking
into account his offense level and his criminal history, was 6-12 months. Brown Sr.’s two earlier
convictions did not increase his criminal history score because they were remote. In its pre-sentence
memorandum and at the sentencing hearing, the government advocated an upwards departure to 24
months. The government argued that the Guidelines did not account for certain aspects of Brown
Sr.’s crime and background; specifically, that the victim was his own son (indicating exceptional
depravity) and that his history of criminal and fraudulent activity (both charged and uncharged) was
inadequately reflected by the recommendation. The government relied partially on the letters from
Brown Sr.’s relatives.
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The sentencing hearing was continued several times. Two of the continuances occurred
because Brown Sr. attempted to commit suicide using a combination of prescription and illicit drugs.
The district court adopted the government’s recommendation in consideration of the
sentencing factors found in 18 U.S.C. § 3553(a). “[W]hat [ ] Brown [Sr.] did is so much worse
because it took place over the course of . . . almost three years” and because the victim was “his own
son.” Sentencing Tr., 27-28, Sept. 21, 2006 (citing 18 U.S.C. § 3553(a)(2)(A)); JA 97-98. In
addition, in consideration of 18 U.S.C. § 3553(a)(2)(D), the court concluded that “Brown [Sr.] is in
serious need of psychological counseling,” in part because of two suicide attempts while he was
awaiting sentencing. It determined that a 24-month term of imprisonment would allow him to get
appropriate medical treatment. Sentencing Tr., 29, Sept. 21, 2006; JA 99. Although the court
specifically stated that the letters were not sufficiently credible to consider their specific allegations,
it noted that, “the very fact that [the] letters [were] written and to have one’s own children begging
the court to sentence [Brown Sr.] to as much time as the court possibly can, I have never had that
before, and it says to me that there is some fire where there’s smoke because that is truly unusual.”
Sentencing Tr., 32, Sept. 21, 2006; JA 102.
ANALYSIS
This court reviews sentences for reasonableness. This review is bifurcated between
procedural and substantive reasonableness. See United States v. Davis, 458 F.3d 491, 495 (6th Cir.
2006). Brown challenges only the substantive reasonableness of his sentence. Brown Br. at 11;
RED at 11. Thus, we would be obliged to reverse the district court’s sentence only if it had
“select[ed] the sentence arbitrarily, bas[ed] the sentence on impermissible factors, fail[ed] to
consider pertinent § 3553(a) factors, or g[ave] an unreasonable amount of weight to any pertinent
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factor.” United States v. Webb, 403 F.3d 373, 385 (6th Cir. 2005). Finally, while “sentences falling
outside the Guidelines range are neither presumptively reasonable nor presumptively unreasonable,”
United States v. Ferguson, 456 F.3d 660, 665 (6th Cir. 2006), this court applies a proportionality
review to sentences outside the Guidelines recommended range. The more the sentence deviates
from the recommended range, the more compelling the district court’s justification for the deviation
must be. United States v. Wells, 473 F.3d 640, 644 (6th Cir. 2007).
Brown Sr. contends that the district court considered two inappropriate factors in determining
his sentence. First, he argues that it was erroneous for the court to enhance the sentence because the
victim of the crime was his own son. Second, he contends that the court’s statement, “there is some
fire where there’s smoke” indicates that the court inappropriately took into account the letters written
by his family members.1
I. Nature of the Victim
The district court did not inappropriately enhance Brown Sr.’s sentence because the victim
was his own son. Neither party cites any cases that hold the identity of the victim, in any sort of
case, was an appropriate or inappropriate factor to consider. Brown Sr. points only to several
newspaper articles indicating that identity theft is often perpetrated by members of one’s own family
to prove that this is not an exceptional case. His argument, however, is erroneous.
First, the Guidelines direct the district court to consider the “nature and circumstances” of
the offense. 18 U.S.C. § 3553(a)(1). This direction gives the district court latitude to consider a
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Brown Sr. indicates a third error in his brief. He argues that the court took the letters into
account not only to increase the his sentence based on past bad conduct, but also because of the
present crime’s impact on his non-victim family members. This memo considers these two factors
together because it concludes that the district court did not inappropriately consider the letters for
any purpose.
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wide range of factors directly related to the offense itself. The relationship of the victim to the
defendant – whether a close friend, a family member, or a complete stranger – is a salient
circumstance of the offense and the district court acts within its discretion when it increases or
decreases a sentence based on that relationship (so long, of course, as the court does not place “an
unreasonable amount of weight” on that relationship, Webb, 403 F.3d at 385).
Second, committing a crime against a close family relation is, in many cases, a more heinous
crime than if against a complete stranger. In United States v. Ferguson the district court applied a
§ 3B1.3 adjustment for abuse of a position of trust, which increased the offense level by two, and
calculated the Guidelines recommended range accordingly. 456 F.3d 660, 664, 667 (6th Cir. 2006)
(citing U.S.S.G. § 3B1.3). Nonetheless, the district court determined that that increase was
insufficient, and it departed upwards from the recommended range to (in part) deter others from
abusing similar positions of trust. This court affirmed. Analogously, family members, in the
ordinary case, are in a position of trust vis-à-vis one another and are in better position to obtain
personal information. They are also in a position to directly and closely observe the effect their
crime has on the victim. An identity thief who steals personal information from an internet database
will not, most likely, be in the same position to observe the deleterious effects of his crime as the
thief who steals from his neighbor. This closeness is exacerbated in this case, where Brown Sr.
continued the theft for almost three years; indeed, the district court explicitly took into account the
length of time that Brown Sr. was aware of the harm his crime caused his son.
Finally, “[i]t has always been the case . . . that the appropriate penalty on a defendant can take
into account the nature of the victims.” United States v. Cavera, __ F.3d __, 2007 WL 1628799 (2nd
Cir. June 6, 2007) (Calabresi, J., concurring dubitante). For example, the Guidelines recommend
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an upward adjustment if the victim is a particularly vulnerable victim. U.S.S.G. § 3A1.1(b) & cmt.
(“‘[V]ulnerable victim’ means a person . . . who is unusually vulnerable due to age, physical or
mental condition, or who is otherwise particularly susceptible to the criminal conduct.” (emphasis
added)). While the district court did not apply a § 3A1.1(b) adjustment to Brown Sr.’s sentence, it
is clear that the Guidelines contemplate the district court taking the nature of the victim into account.
Therefore, it was not error for the district court to consider that the victim of Brown Sr.’s
crime was his own son.
II. Consideration of the Family Members Letters
The district court did not inappropriately consider the letters sent by the members of Brown
Sr.’s family. Brown Sr. argues that the letters were inappropriate. The district court, however, noted
at the sentencing hearing that the allegations in the letters were insufficiently reliable and thus that
it was not taking them into account. Brown Sr.’s, argument, therefore, centers on the statement made
by the district court that, “there is some fire where there’s some smoke.” JA at 102. The full
statement, however, specifically stated that the court was not considering those factors:
The court also wants to note that . . . regardless of the truth of the allegations of the
close family members . . . who make outrageous accusations against [ ] Brown [Sr.]
– and I’m not sentencing him for those accusations because I don’t know if they are
true or not – but the very fact that someone has done enough to their family to cause
letters of that sort to be written and to have one’s own children begging the court to
sentence this man to as much time as the court possibly can, I have never had that
before, and it says to me that there is some fire where there’s smoke because that is
truly unusual.
JA at 102 (emphasis added). Therefore, the court specifically stated that it was not considering the
factual allegations made in the letters, but only the level of animosity that Brown’s crimes had
generated among his family members. Indeed, it is questionable whether the court placed any weight
on the letters or was merely expressing its belief (which it did not take into account) that Brown Sr.
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had done some of the alleged acts. In addition, the district court made this statement at the end of
the sentencing hearing, which was significantly after it imposed the sentence. In context, this
statement was a last admonishment to Brown Sr. that he should attempt to repair his relationship
with his family, rather than a factor the court considered in determining his sentence.
In addition, Brown Sr. concedes that it was appropriate for the district court to consider his
son’s victim impact statement. Brown Sr. Br. at 14, 17; see also United States v. Blake, 89 F. Supp.
2d 328, 347 (E.D.N.Y. 2000) (“While a victim’s reactions are not controlling, they are something
that a judge must and should consider before imposing a sentence.”). Many of the allegations made
in the other letters appear in Brown Jr.’s victim impact statement. Therefore, while the question is
not properly presented, it is unclear whether the use of these additional statements would have been
improper.
Furthermore, the district court provided compelling reasons for the sentence it imposed. It
indicated that Brown Sr. needed medical treatment including psychological and drug counseling for
his depression, suicidal tendencies, and drug problem. It indicated that the nature of the victim and
the duration of the crime implicated three of the § 3553(a) factors; the seriousness of the offense and
the need for a just punishment, the need to promote respect for the law, and the need to protect the
public. It also indicated that the Guidelines did not adequately address the impact on the victim –
damage to credit rating, etc. – in this case. Therefore, while the district court might not have been
correct to consider the uncharged offense based on unreliable evidence, there is no clear indication
that it did so, and it provided sufficient compelling reasons, supported by the pleaded conduct, to
justify the sentence it imposed.
Defendant’s sentence is clearly reasonable.
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CONCLUSION
For the foregoing reasons, Brown Sr.’s sentence is AFFIRMED.
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