United States v. Glenn Browne ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 16 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50246
Plaintiff-Appellee, D.C. No.
8:16-cr-00139-CJC-1
v.
GLENN DESHAWN BROWNE, AKA MEMORANDUM*
Glenn Deshawne Browne, AKA Tay Tay,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted July 12, 2019**
Pasadena, California
Before: M. SMITH and FRIEDLAND, Circuit Judges, and SIMON,*** District
Judge.
Defendant-Appellant Glenn Deshawn Browne (“Browne”) appeals the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Michael H. Simon, United States District Judge for the
District of Oregon, sitting by designation.
district court’s denial of his motion to suppress and his subsequent sentence for
various firearms-related convictions. We affirm both the denial of the motion to
suppress and the denial of a mitigating role adjustment under section 3B1.2 of the
United States Sentencing Guidelines (“U.S.S.G.”), but we remand for the district
court to recalculate Browne’s sentence after applying the appropriate base offense
level.
Browne argues that the officers’ warrantless search of the vehicle’s
passenger compartment exceeded what is permissible under Michigan v. Long, 463
U.S. 1032 (1983), and that this Fourth Amendment violation requires suppression
of the pistol the officers discovered in the search.1 Browne concedes, however,
that he did not raise this ground for suppression below. Consequently, without a
showing of good cause, he cannot advance that theory for the first time on appeal.
See United States v. Guerrero, 921 F.3d 895, 897-98 (9th Cir. 2019). Browne has
not made such a showing, so we affirm the district court’s denial of the motion to
suppress.
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Although he challenged the justification for the stop below, Browne
conceded on appeal that the officers had reasonable suspicion to conduct a
protective sweep. His other arguments on appeal—such as whether he has
standing to challenge the search, whether the Government could further search the
vehicle under the automobile exception, and whether the error in denying the
motion to suppress was prejudicial—are irrelevant if the firearm was properly
obtained through a protective sweep. Consequently, his suppression argument
rises and falls with his challenge to the scope of the sweep.
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Browne also challenges his sentence, arguing that the district court plainly
erred by applying a base offense level of 24 under U.S.S.G. § 2K2.1(a)(2) rather
than a base offense level of 20 under U.S.S.G. § 2K2.1(a)(4)(A), and that the court
improperly rejected his request for a minor-role adjustment under U.S.S.G.
§ 3B1.2. The Government agrees with Browne that the district court relied on an
incorrect base offense level, and that remand for resentencing is warranted so that
the district court can calculate Browne’s sentence with the proper base offense
level. We thus remand for that purpose.
Because the minor-role adjustment issue is likely to arise again on remand,
we address it here. See United States v. Lee, 725 F.3d 1159, 1161 (9th Cir. 2013).
We do not agree with Browne that the district court clearly erred in concluding that
the burglary preceding the conspiracy for which he was convicted was not
“relevant conduct” or, accordingly, in denying a minor role adjustment. See
United States v. Hahn, 960 F.2d 903, 907 (9th Cir. 1992)) (“Whether conduct
extraneous to an offense of conviction is . . . ‘relevant conduct’ within the meaning
of [the Guidelines] is reviewed for clear error.”). Browne entered the conspiracy to
sell the guns after the burglary had already occurred, so it was logical to ignore that
act when considering his role in the conspiracy. Furthermore, Browne was
substantially involved in helping to sell the guns, including arranging the sale and
assisting with delivery of the firearms. These facts sufficiently supported the
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district court’s conclusion that Browne was not “substantially less culpable than
the average participant” in the conspiracy. See United States v. Quintero-Levya,
823 F.3d 519, 521 (9th Cir. 2016) (quoting U.S.S.G. § 3B1.2, cmt. n.3(A)).
AFFIRMED in part, VACATED in part and REMANDED in part.
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