2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-24-2013

USA v. Demetrius Brown

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-4619

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 12-4619

____________

UNITED STATES OF AMERICA

v.

DEMETRIUS BROWN,

Appellant

____________

On Appeal from the United States District Court

for the District of Delaware

(D.C. No. 1-06-cr-00013-001)

District Judge: Honorable Leonard P. Stark

____________

Submitted Pursuant to Third Circuit LAR 34.1(a)

September 24, 2013

Before: AMBRO, FISHER and HARDIMAN, Circuit Judges.

(Filed: September 24, 2013)

____________

OPINION OF THE COURT

____________

FISHER, Circuit Judge.

Demetrius Brown appeals a judgment of the United States District Court for the 

District of Delaware sentencing him to twelve months in prison and a continued period of 
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supervised release for a violation of previously imposed conditions of supervised release. 

Brown’s counsel also moves to withdraw his representation pursuant to Anders v. 

California, 386 U.S. 738 (1967). For the reasons stated below, we will affirm the District 

Court’s judgment and grant counsel’s motion to withdraw.

I.

We write principally for the parties, who are familiar with the factual context and 

legal history of this case. Therefore, we will set forth only those facts necessary to our 

analysis.

In 2008, Brown pled guilty to one count of Possession with Intent to Distribute 

Cocaine Base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). The District 

Court sentenced Brown to a ninety-six-month term of imprisonment, followed by a sixyear term of supervised release. On January 19, 2012, Brown’s original sentence of 

incarceration was reduced to ninety-two months pursuant to retroactive changes in the 

United States Sentencing Guidelines.

Brown’s term of supervised release began on November 7, 2012. On 

November 29, 2012, the United States Probation Office filed a petition with the District 

Court alleging that Brown had violated the terms of his supervised release by illegally 

possessing a controlled substance. The District Court held a supervised release 

revocation hearing on December 6, 2012.
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Brown had several run-ins with the law between his release from prison and his 

revocation hearing. On November 9, 2012, he was arrested for domestic assault. On 

November 19, 2012, he was arrested for heroin possession and other related charges. On 

December 2, 2012, he was charged with speeding and driving with a suspended or 

revoked license. On November 29, 2012, Brown pled guilty to possession of heroin and 

to a felony charge of terroristic threatening, which related to an unresolved 2005 incident. 

Neither of the other charges had been resolved at the time of Brown’s revocation hearing.

Prior to the hearing, the Office of Probation and Pretrial Services submitted a 

memorandum to the District Court setting forth sentencing options for the revocation 

hearing. The probation officer concluded that Brown’s criminal history category of VI 

and “Grade C Violation” for the possession of heroin conviction led to an eight to 

fourteen month suggested term of imprisonment. Brown received a copy of the violation 

petition and the sentencing memorandum prior to the revocation hearing.

At the revocation hearing, Brown admitted that he violated the terms of his 

supervised release. The District Court heard argument on sentencing from the defense 

and the government. Brown allocuted on his own behalf, admitting responsibility, 

requesting help, and recognizing that federal probation could offer him opportunities at 

rehabilitation. The Court imposed a twelve-month term of imprisonment and continued 

the federal supervised release term that Brown was already serving. While the District 

Judge stated at sentencing that the continued period of supervised release would be “the 
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maximum up to the six years minus whatever we need to subtract as a result of the 

incarceration,” the order of judgment merely indicated that upon release from prison, 

Brown was to be on supervised release for a term of six years.

Brown directed counsel to file a notice of appeal. On February 12, 2013, counsel 

moved to withdraw under Anders and Third Circuit Local Appellate Rule 109.2. Brown, 

who was served with a copy of counsel’s motion to withdraw and Anders brief, filed a 

pro se brief on March 13, 2013 in support of the appeal where he identified the error in 

the written order of judgment, arguing that the term as written would exceed the term of 

supervised release authorized by statute. On March 29, 2013, the United States filed a 

motion to stay the briefing schedule to seek a correction of the judgment in the District 

Court. We stayed the briefing schedule for sixty days. The government filed a motion to 

correct the judgment in the District Court, which the District Court granted on April 12, 

2013. The Court amended the judgment to provide that Brown was sentenced to a term 

of supervised release of the maximum up to six years minus the time that needed to be 

subtracted as a result of incarceration. On June 3, 2013, the government responded in 

support of counsel’s Anders brief.

II.

The District Court had jurisdiction over this case under 18 U.S.C. § 3231. We 

have jurisdiction over this appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
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Counsel may file a motion to withdraw together with a supporting brief under 

Anders if, after reviewing the district court record, he is “persuaded that the appeal 

presents no issue of even arguable merit . . . .” 3d Cir. L.A.R. 109.2(a). “We exercise 

plenary review to determine whether there are any such issues.” Simon v. Gov’t of the 

V.I., 679 F.3d 109, 114 (3d Cir. 2012) (citation omitted). When counsel files an Anders

brief, our inquiry is twofold: (1) whether counsel thoroughly scoured the record in search 

of appealable issues and explained why any issues are frivolous, and (2) “whether an 

independent review of the record presents any nonfrivolous issues.” United States v. 

Youla, 241 F.3d 296, 300 (3d Cir. 2001). Where the Anders brief appears adequate on its 

face, we will rely on it to guide our review of the record. Id. at 301.

III.

Counsel’s Anders brief identifies several possible issues, reviews the relevant law, 

explains the frivolous nature of the appeal, and includes an appendix with relevant 

portions of the record. While Brown’s pro se brief identifies the additional issue of the 

error in the written order of judgment, that error was clerical and has been corrected. 

This issue is now moot. We are therefore satisfied that counsel’s Anders brief is adequate 

and we use it to guide our review.

Counsel’s Anders brief raises three potentially appealable issues: the District 

Court’s jurisdiction to revoke supervised release and impose sentence, the validity of 

Brown’s admitted violation, and the reasonableness of the sentence imposed. We agree 
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with counsel that these issues are frivolous. The District Court had jurisdiction over 

Brown’s revocation proceeding under 18 U.S.C. §§ 3231 and 3583(g). The District 

Court found Brown’s admission to the violation to be knowing, voluntary, intelligent, and 

supported by his state court conviction for heroin possession.

We review the legality of a sentence imposed upon a revocation of supervised 

release by determining whether the sentence imposed was reasonable. United States v. 

Bungar, 478 F.3d 540, 542 (3d Cir. 2007). We review for both procedural and 

substantive reasonableness and the appellant bears the burden of demonstrating 

unreasonableness. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). 

We must first ensure that the district court committed no significant procedural error, 

“such as failing to calculate (or improperly calculating) the Guidelines range, treating the 

Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence 

based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” 

Gall v. United States, 552 U.S. 38, 51 (2007). If there are no procedural errors, we 

consider the substantive reasonableness of the sentence under an abuse-of-discretion 

standard, taking into account the totality of the circumstances. Id.

For a sentence imposed as a result of a violation of supervised release, we must 

take into account additional considerations. The sentence is imposed “primarily to 

sanction the defendant’s breach of trust, while taking into account, to a limited degree, 

the seriousness of the underlying violation and the criminal history of the violator.” 
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Bungar, 478 F.3d at 544 (quoting United States v. Dees, 467 F.3d 847, 853 (3d Cir. 

2006)) (internal quotation marks omitted). The district court must also consider the 

policy statements under Chapter 7 of the United States Sentencing Guidelines. Id.

We conclude that the District Court did not commit a procedural error. The record 

reflects that it correctly calculated the guideline range as eight to fourteen months, given 

the Grade C violation and Brown’s criminal history category of VI. See U.S.S.G. 

§ 7B1.4(a). Brown’s twelve-month sentence was within the guideline range. A 

sentencing court need not “discuss and make findings as to each of the § 3553(a) factors 

if the record makes clear the court took the factors into account in sentencing.” Bungar, 

478 F.3d at 543 (quoting United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006)). 

The record demonstrates that the Court considered the § 3553(a) factors, including the 

nature and circumstances of the supervised release violation and Brown’s history and 

characteristics pursuant to § 3553(a)(1), and his need for guidance upon his release from 

custody pursuant to § 3553(a)(2)(D). The District Court also clearly relied upon Brown’s 

breach of trust by violating his supervised release conditions so soon after release. The 

Court explained that “some significant punishment [wa]s necessary” because Brown 

needed additional time “to further reflect and . . . come out with a plan and the ability to 

not fall into the same path.” JA 21. The District Court stated that the twelve-month 

period was warranted “given the repeated criminal conduct within just days of [Brown’s] 

release from incarceration.” Id. at 22. The Court concluded that the continued term of 
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supervised release would serve both as a potential punishment and as an opportunity, as 

federal supervision could offer some of the help that Brown desired. Id. at 22-23. We 

are satisfied that the District Court gave meaningful consideration to the § 3553(a) factors

that a court should take into account when revoking a term of supervised release under 18 

U.S.C. § 3583(e).

We also conclude that the sentence imposed by the District Court was not 

substantively unreasonable. A sentencing decision is substantively reasonable if “the 

record as a whole reflects rational and meaningful consideration of the factors 

enumerated in § 3553(a).” United States v. Merced, 603 F.3d 203, 214 (3d Cir. 2010) 

(quoting United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc)) (internal 

quotation marks omitted). We will affirm a district court’s procedurally sound sentence 

“unless no reasonable sentencing court would have imposed the same sentence on that 

particular defendant for the reasons the district court provided.” Id. (quoting Tomko, 562 

F.3d at 568). Given the circumstances of Brown’s violation and his articulated desire for 

help, we cannot say that no reasonable sentencing court would have imposed the same 

sentence. Accordingly, any argument as to the reasonableness of the sentence imposed 

would be frivolous.

IV.

For the reasons stated above, we will affirm the District Court’s judgment of 

sentence and grant counsel’s Anders motion.