UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

UNITED STATES OF AMERICA )

)

v. ) 09-cr-30-GZS

)

EDWARD BROWN )

UNITED STATES' RESPONSE TO DEFENDANT'S OBJECTION 

TO SUPPLEMENTAL PRESENTENCE REPORT AND RESENTENCING PROCEDURE

In January 2010, this Court sentenced the defendant to 444 months of imprisonment. 

Three hundred and sixty months of that sentence was attributable to a minimum mandatory 

minimum sentence under 18 U.S.C. § 924(c) for possessing an explosive device in furtherance of 

a crime of violence. The Court imposed the remaining time for the other counts of conviction, 

which include conspiracies to commit crimes against the United States and to prevent officers 

from discharging their duties, obstruction of justice, felon-in-possession, and failing to appear for 

court hearings. 

After filing a successful 28 U.S.C. § 2255 motion, the defendant is before the Court now 

for resentencing because his § 924(c) conviction is invalid in light of Davis v. United States. 

Even without the § 924(c) offense, the defendant faces an advisory guideline range of 360 to life. 

The defendant argues, however, that the Court cannot impose any more jail time under the 

Double Jeopardy Clause on the ground that, aside from the § 924(c) offense, which is now 

invalid, the defendant has completed the sentences on the other counts. Thus, according to him,

this Court may not assign additional time to these other counts at a resentencing.

The defendant's Double Jeopardy argument fails. In support of the argument, the 

defendant relies on United States v. Silvers, 90 F.3d 95, 101 (4th Cir. 1996), which held that the 

Double Jeopardy Clause prevents a court from seeking to increase a sentence for a crime after 

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the defendant has fully served his sentence for that crime. The defendant's argument, however, is 

predicated on the notion that the prison time allocated to the non-§ 924(c) charges constitute 

freestanding sentences distinct from the sentence on the § 924(c) count. In other words, the 

defendant believes that at a resentencing, the Court must treat the previously imposed sentence 

as consisting of several subunits, each of which must remain the same even after the vacating of 

the § 924(c) conviction. 

Courts have rejected this argument. United States v. Townsend, 178 F.3d 558, 567 (D.C. 

Cir. 1999). They have recognized that sentences on multiple counts may comprise a sentencing 

package so that attacking the sentence on some counts via § 2255 reopens the sentences on other 

counts as well. United States v. Rodriguez, 112 F.3d 26 (1st Cir. 1997). As the First Circuit has 

explained, "when the conviction on one or more of the component counts is vacated, common 

sense dictates that the judge should be free to review the efficacy of what remains in light of the 

original plan, and to reconstruct the sentencing architecture . . . to ensure that the punishment 

still fits both the crime and criminal." United States v. Pimienta-Redondo, 874 F.2d 9, 14 (1st 

Cir. 1989).

This is not the first time that changes in the law have caused the invalidation of § 924(c) 

convictions. After Bailey v. United States, 516 U.S. 137 (1995), there were many § 924(c) 

convictions vacated under 28 U.S.C. § 2255 and defendants were resentenced on the remaining 

counts. Defendants then made the same argument made here -- because the defendant had 

already served the time allocated to the non-§ 924(c) counts, the district court could not impose 

additional time on those counts to "ensure that the punishment still fits both the crime and 

criminal." Pimienta-Redondo, 874 F.2d at14. Those arguments were unsuccessful. Townsend, 

178 F.3d at 567; United States v. Smith, 115 F.3d 241, 247 (4th Cir. 1997); United States v. 

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Smith, 103 F.3d 531, 535 (7th Cir. 1996).1 The courts recognized that the criminal judgment 

imposed an aggregate number of months and therefore the judgment constituted "one unified 

term of imprisonment." Smith, 103 F.3d at 535. Thus, "when there is an alteration in the 

components of a sentence, the entire sentence is altered. If the alteration contains within itself 

potential for permeating the whole sentence, the entire sentence can be revisited." Id.

That is the situation here. The Court imposed an aggregate sentence of 444 months. The 

Court had to impose 360 months on the § 924(c) count and therefore adjusted the remaining 

amounts to reflect the Court's overall view about the seriousness of the defendant's conduct and 

the danger that he represents to the public to arrive at the 444 months penalty that the Court 

ultimately imposed. The Court of course did not have to impose any more than a total of 360 

months, see Dean v. United States, 137 S. Ct. 1170 (2017). Thus, the 444 month sentence 

demonstrates that the Court did not believe that the 360-month sentence mandated by § 924(c) 

was adequate to satisfy the parsimony principle under § 3553(a). Therefore, it is apparent that 

the Court created a sentence package to arrive at the penalty that it determined was sufficient but 

not greater than necessary to meet the § 3553(a) requirements. 

On remand, the Court may consider again, within statutory bounds, the penalties for the 

unchallenged convictions "to ensure that the punishment still fits both the crime and criminal." 

Pimienta-Redondo, 874 F.2d at 14. In this regard, the government recommends a guideline 

sentence. 

The defendant was the leader of a violent conspiracy designed to thwart the rule of law

through threats and violence. He threatened to kill law enforcement if they did their jobs and 

 

1 The due process argument also raised by the defendant has been rejected for the same 

basic reasons. Smith, 115 F.3d at 248.

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these were not merely empty threats. The defendant armed himself to the teeth and invited 

others to help him. Bloodshed was avoided only through the excellent work of the United States 

Marshal Service by infiltrating the defendant's cabal through undercover officers. While in 

prison, the defendant has stuck to his anti-rule-of-law views and has never shown remorse for his 

crimes or offered any sort of apology. The district court imposed a 444-month sentence to 

punish the defendant for the entirety of his conduct. To be sure, the law has changed regarding 

the § 924(c) convictions, but it remains the case that the defendant led a conspiracy to gather 

weapons to harm public officials if necessary in order to resist the rule of law. The Court rightly 

decided in 2010 that this conduct was deserving of a long punishment and nothing material has 

changed in the intervening years. Therefore, the United States recommends that the Court 

sentence the defendant to a sentence within the guideline range of 360 months to life.

Dated: March 10, 2020

Respectfully submitted,

SCOTT W. MURRAY

United States Attorney

By: /s/ Seth R. Aframe

Seth R. Aframe, AUSA 

53 Pleasant Street, 5th Floor

Concord, NH 03301

(603) 225-1552

seth.aframe@usdoj.gov

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