2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-18-2013

USA v. Kevin Brown

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-1562

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Recommended Citation

"USA v. Kevin Brown" (2013). 2013 Decisions. Paper 1360.

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-1562

_____________

UNITED STATES OF AMERICA

v.

KEVIN BROWN,

 Appellant

_____________

On Appeal from the United States District Court

for the District of New Jersey

District Court No. 2-05-cr-00715-001

District Judge: The Honorable Esther Salas

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

January 14, 2013

Before: SMITH, CHAGARES, AND BARRY, Circuit Judges

(Filed: January 18, 2013)

_____________________

 OPINION

_____________________

SMITH, Circuit Judge.

Kevin Brown pleaded guilty in October of 2005 to distribution and 

possession with intent to distribute cocaine base in violation of 21 U.S.C. § 
2

841(a)(1) and (b)(1)(B). The District Court sentenced him to a seventy-five month 

term of imprisonment, followed by a four year period of supervised release. In 

December of 2011, while on supervised release, Brown assaulted his girlfriend 

during a domestic dispute and broke the windows of her vehicle. Shortly 

thereafter, the United States Probation Office filed a report with the Court alleging 

four violations of supervised release. During a hearing before the District Court on 

February 15, 2012, Brown pleaded guilty to the single violation based on the 

assault of his girlfriend, which also mentioned that he had damaged her vehicle. 

The Court found that Brown knowingly and voluntarily pleaded guilty and 

accepted his plea. 

At that juncture, the proceeding focused on sentencing. Brown’s counsel 

urged the Court to impose a sentence below the advisory guideline range of eight 

to fourteen months of imprisonment. Brown exercised his right of allocution and 

tried to explain his actions. The Court acknowledged his explanation, but voiced 

concerns about his “issues with women” and his need “to learn to control” himself. 

In applying the various factors set forth in 18 U.S.C. § 3553(a), the Court noted 

that Brown had “made a face” during an on the record discussion concerning how 

he broke the windows of the vehicle. The Court acknowledged that Brown had a

difficult childhood, but found this personal history did not justify his equally 

troubling history of violence with women. Brown responded by uttering a 
3

profanity. The Court sentenced him to fourteen months of imprisonment and fortysix months of supervised release.

Brown filed a timely appeal.1 His counsel filed a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967), representing that there were no nonfrivolous 

issues to present on appeal and asking leave to withdraw as counsel. Counsel 

explained that based on his review there was no basis for challenging the 

revocation proceeding because it complied with the requirements of Federal Rule 

of Criminal Procedure 32.1. The record of the revocation hearing, according to 

counsel, demonstrated that there was a factual basis for Brown’s guilty plea. In 

light of the Court’s finding that Brown knowingly and voluntarily pleaded guilty, 

counsel asserted there was no ground on which to challenge the validity of the 

guilty plea. Nor was there any basis, in counsel’s view, to question the procedural 

or substantive reasonableness of the sentence imposed. Counsel pointed out that 

the guideline range was correctly calculated. Furthermore, the District Court fully 

considered the § 3553(a) sentencing factors and explained its reasons for imposing 

the sentence at the top of the guideline range. 

We conclude that counsel has adequately fulfilled his obligations under 

Anders. See United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). Our 

 

1

 The District Court exercised jurisdiction under 18 U.S.C. §§ 3231 and 

3583(e)(3). We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
4

independent review of the record fails to reveal any nonfrivolous issue for appeal.2

Accordingly, we will affirm the judgment of the District Court. We grant 

counsel’s request to withdraw. Finally, we certify that the issues presented in the 

appeal lack legal merit and do not require counsel to file a petition for a writ of 

certiorari with the United States Supreme Court.

 

2

 We note that, consistent with Third Circuit L.A.R. 109.2(a), counsel served a 

copy of his Anders brief upon Brown. Also, the Clerk’s Office notified Brown of 

his right to file his own pro se brief. We have received no such submission from 

Brown.