NOT RECOMMENDED FOR FULL
- TEXT PUBLICATION File Name: 14a0860n.06
Case No. 14

- 3257
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

U NITED STATES OF AMERICA , Plaintiff

- Appellee ,

v.
DANIEL J. BROWN , III , aka D.J. Brown, oka Daniel Joseph Brown, III,
Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

BEFORE: DAUGHTREY, CLAY, and COOK, Circuit Judges.
COOK , Circuit Judge. Daniel Brown pleaded guilty to conspiring to commit an offens e against the United States for his role in holding a cognitively disabled adult and her minor child in a state of involuntary servitude. At sentencing, t he district court varied upward from the advisory sentencing guidelines range to impose the statutory max imum penalty of 60 months’ imprisonment. Brown appeals the reasonableness of that sentence , and we AFFIRM.
Between June 2011 and December 2011, Brown conspired with three others to hold a cognitively disabled adult, S.E., and her minor child, B.E., in a state of involuntary servitude at an apartment shared by two of his co

- conspirators

. Brown physically abused S.E. on numerous occasions, forc ed S .E. to hit her child , and nailed shut the windows in the room where the victims slept so they could not escape

. O nce , after the victims managed to escape , he recapturedCase No. 14

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United States v. Brown

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- them by falsely promising to take them to a nearby ice cream store in his vehicle

. Th e conspirators later forcibly shaved S.E.’s head and wrote demeaning comments on her face in permanent marker. Brown and his co

- conspirators also stole S.E.’s federal benefits during her confinement , as well as pain pills prescribed to S.E. for injuries i nflicted by members of the conspiracy.
After his arrest, Brown waived his right to prosecution by indictment and pleaded guilty to conspiring to commit an offense against the United States , 18 U.S.C. § 371. Under the terms of the plea agreement, the par ties agree d to recommend a sentence within the applicable sentencing guidelines range. Both parties assented to the presentence investigation report’s
calculation of an adjusted offense level of 30 and the resulting advisory range of 121

– 151 months’ imprisonment. Recognizing that Brown’s crime carried a statutory maximum penalty of 60 months’ imprisonment, however, the district court applied an offense level of 23, the highest offense level with a range (57

– 71 months ) encomp assing th e maximum . The government moved for a five

- level downward departure in return for Brown’s substantial assistance in testifying at
his co

- conspirators’ trial. The court granted the motion and calculated a final guidelines range of
33

– 41 months. It then varied upward from this range after considering the 18 U.S.C. § 3553(a) factors and imposed the statutory maximum penalty of 60 months’ imprisonment.

Brown now appeals, argu ing that the district court applied a procedurally and substantively unre asonable 19

- month upward variance to his sentence

. Specifically, he maintains that the court erred in relying on conduct already reflected in the guidelines calculation, failing to properly account for his cooperation with the government, and concluding
t hat his criminal history exhibited “violence.” We review the sentence for reasonableness underCase No. 14

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United States v. Brown

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- an abuse

- of

- discretion standard. United States v. Houston , 529 F.3d 743, 753, 755 (6th Ci r. 2008) (citing Gall v. United States , 552 U.S. 38, 45

– 47 ( 2007)).
We find no abuse of discretion here, as t he record shows that the district court adequately justified the upward variance. The court first explained that it felt compelled to vary upward to the statutory maximum in light of the “horrific” nature of the of fense, the fact that Brown committed the offenses against “a mentally vulnerable adult and an entirely helpless child,” and Brown’s history of child endangerment and violence toward women. (R. 47, Sentencing Tr

. at 27

– 31.) Looking to the § 3553(a) factor s, the court concluded that a lower sentence would not just ly punish the offense, sufficient ly deter those who would “cruelly and brutally” degrade and restrain others, or adequate ly assur e the public’s protection. ( See R. 47, Sentencing Tr

. at 30

– 31.)
Brown’s objections do not persuade us to disturb th e court’s well

- reasoned decision

. H e first argu es that the enhancements applied in calculating the guidelines range sufficiently captured the severity of his crime

. But this court “ha[s] rejected the argument that a sentence is substantively unreasonable because the § 3553(a) factors on which the district court relied to sentence the defendant outside the advisory Guidelines range were already reflected in the Guideli nes calculation.” United States v. Rossi , 422 F. App’x 425, 436 (6th Cir. 20 11) (citing United States v. Tristan

- Madrigal , 601 F.3d 629, 636 n.1 (6th Cir. 2010)). And because the statutory maximum of 60 months required the court to scale back the offense level from 30 to 23, the ultimate guidelines range did not reflect most of the otherwise applicable guidelines enhancements.Case No. 14

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- Brown also contends that the court failed to sufficiently credit his cooperation and acceptance of responsibility. In essence, B rown “asks us to balance the factors differently than the district court did,” but “[t]his is simply beyond the scope of our appellate review, which looks to whether the sentence is reasonable, as opposed to whether in the first instance we would have impo sed the same sentence .” United States v. Ely , 468 F.3d 399, 404 (6th Cir. 20 06).
Finally, Brown maintains that his prior conv iction for misdemeanor assault failed to support the variance. Yet in concluding that Brown’s criminal history reflected “viole nce,” the
court relied on not just his assault conviction, but on his admitted abuse of his own mother and his previous convictions for endangering and contributing to the delinquency of children. These facts, together with the court’s measured considerat ion of the seriousness of the offense and the
other § 3553(a) factors, adequately justified the upward variance.
Finding no abuse of discretion, we AFFIRM Brown’s sentence

.