NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 14a0860n.06

Case No. 14-3257

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DANIEL J. BROWN, III, aka D.J. Brown, oka 

Daniel Joseph Brown, III,

Defendant-Appellant.

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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 offense 

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, the district court varied upward from the 

advisory sentencing guidelines range to impose the statutory maximum 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, forced S.E. to hit her child, and nailed shut the windows in the room where the 

victims slept so they could not escape. Once, after the victims managed to escape, he recaptured 
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them by falsely promising to take them to a nearby ice cream store in his vehicle. The

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 inflicted 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 parties agreed 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) encompassing the 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, arguing that the district court applied a procedurally and 

substantively unreasonable 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

that his criminal history exhibited “violence.” We review the sentence for reasonableness under 
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an abuse-of-discretion standard. United States v. Houston, 529 F.3d 743, 753, 755 (6th Cir.

2008) (citing Gall v. United States, 552 U.S. 38, 45–47 (2007)).

We find no abuse of discretion here, as the 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 offense, 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) factors, the court concluded that a lower 

sentence would not justly punish the offense, sufficiently deter those who would “cruelly and 

brutally” degrade and restrain others, or adequately assure the public’s protection. (See R. 47, 

Sentencing Tr. at 30–31.) 

Brown’s objections do not persuade us to disturb the court’s well-reasoned decision. He 

first argues 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 

Guidelines calculation.” United States v. Rossi, 422 F. App’x 425, 436 (6th Cir. 2011) (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. 
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Brown also contends that the court failed to sufficiently credit his cooperation and 

acceptance of responsibility. In essence, Brown “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 imposed the same sentence.” United States v. Ely, 468 F.3d 399, 404 (6th Cir. 2006). 

Finally, Brown maintains that his prior conviction for misdemeanor assault failed to 

support the variance. Yet in concluding that Brown’s criminal history reflected “violence,” 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 consideration 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.