Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Brown

United States District Court, D. Vermont

October 14, 2016

United States of America
v.
Heather Brown

          REPORT AND RECOMMENDATION (Doc. 43)

          John M. Conroy United States Magistrate Judge

         Heather Brown, proceeding pro se, has moved pursuant to 28 U.S.C. § 2255 to vacate a 48-month term of imprisonment imposed on September 29, 2014 by United States District Court Judge William K. Sessions III as a result of her pleas of guilty to two violations of the Controlled Substances Act, as well as committing an offense while under an order of pretrial release. (Doc. 43.)

         In her Motion, Brown claims the advisory sentencing guideline calculation of 188 to 235 months improperly included a two-level enhancement under United States Sentencing Guidelines (USSG) § 2D1.1(b)(1) for possessing a firearm during the offense conduct. (Doc. 43-1.) Brown argues that the USSG § 2D1.1(b)(1) enhancement should not have been applied, because the gun found in a closet at her house was “not even used as a part of this offense.” (Id. at 1.) Brown also contends that the application of the enhancement should have been determined by a jury rather than the sentencing judge. Finally, Brown argues that Johnson v. United States, 135 S.Ct. 2551 (2015), rendered the USSG § 2D1.1(b)(1) enhancement unconstitutional. (Doc. 43-1 at 4.) The government opposes Brown's Motion. (Doc. 45.)

         Concluding that there is no merit to Brown's contentions, I recommend that Brown's § 2255 Motion (Doc. 43) be DENIED.

         Background

         In September 2013, Brown was charged in a Criminal Complaint with knowingly and intentionally possessing with the intent to distribute cocaine base and oxycodone, in violation of 21 U.S.C. § 841(a). (Doc. 1.) Following her initial appearance, Brown was released on various conditions of release. (Doc. 5.) On September 26, 2013, the grand jury indicted Brown, charging her with two counts of distribution of oxycodone and one count of possession with intent to distribute oxycodone and cocaine base, in violation of 21 U.S.C. § 841(a). (Doc. 8.) On January 31, 2014, while out on conditions of release, Brown was arrested when she was found in possession of a large quantity of Percocet, a controlled substance. (PSR at 8, ¶ 18.)

         With the benefit of counsel, Brown entered into a Plea Agreement on March 5, 2014. (Doc. 19.) The Plea Agreement included numerous stipulations of fact, including a stipulation regarding drug quantity under the advisory sentencing guidelines and her role in the offense. Relevant here, the stipulations included an agreement that Brown had possessed a firearm during the offense conduct pursuant to USSG § 2D1.1(b)(1). (Id. at 2, ¶ 4.)

         On March 12, 2014, Brown appeared before Judge Sessions and pleaded guilty to the three counts charged in a Superseding Information. (Doc. 23.) In Count One, Brown admitted to “conspiring to distribute oxycodone, in violation of 21 U.S.C. §[§] 841(a), 841(b)(1)(C)[, ] and 846.” (Doc. 19 at 1.) In Count Two, she admitted to “conspiring to distribute cocaine base, in violation of 21 U.S.C. §[§] 841(a), 841(b)(1)(C), and 846.” (Id.) In Count Three, she admitted to “committing a felony offense while on pretrial release, in violation of 18 U.S.C. § 3147(1).” (Id.) Judge Sessions accepted Brown's pleas of guilty and ordered the preparation of a presentence investigation report (PSR).

         The final PSR was submitted to the Court on July 9, 2014. It concluded that Brown faced an advisory sentencing guidelines imprisonment range of 188 to 235 months, together with an indeterminate range for violation of release conditions. (PSR at 16, ¶ 67.) The sentencing guideline range was calculated as follows. Counts One and Two were “grouped for guideline purposes since the offense level is determined largely on the quantity of the substance involved and the offense behavior was ongoing and continuous in nature.” (Id. at 9, ¶ 23 (citing USSG § 3D1.2(d)).) In cases where different controlled substances are involved in a single offense, as is the case here, the base level offense is determined by “convert[ing] each of the drugs to its marihuana equivalent, add[ing] the quantities, and look[ing] up the total in the Drug Quantity Table [(USSG § 2D1.1(c))] to obtain the combined offense level.” USSG § 2D1.1, cmt. 8(B). Consistent with Brown's stipulation in the Plea Agreement, it was “conservatively” estimated that Brown conspired to sell the equivalent of “between 3, 000 to 10, 000 kilograms of mari[h]uana.” (PSR at 10, ¶ 24.) This quantity resulted in “a base offense level of 34.” (Id. (citing USSG § 2D1.1(c)(3)).)

         Again, consistent with Brown's stipulation in the Plea Agreement, two levels were added to the base level because Brown possessed a firearm during the offense conduct (id. at 10, ¶ 25 (citing USSG § 2D1.1(b)(1))) and three more levels were added because Brown committed an offense, conspiring to distribute oxycodone, while on pretrial release (Count Three) (id. at 10, ¶ 27 (citing USSG § 3C1.3)). Finally, Brown's offense level was reduced three levels because Brown had manifested an acceptance of responsibility for the offense pursuant to USSG §§ 3E1.1(a) and (b). (Id. at 11, ¶¶ 31, 32.) This resulted in a total offense level of 36, which, when combined with a criminal history category of I, yielded a guideline imprisonment range of 188 to 235 months. (Id. at 16, ¶ 67.)

         Brown filed a Sentencing Memorandum and Motion for Downward Departure on September 23, 2014. (Doc. 35.) Brown argued that a downward departure was warranted in this case because of her “ongoing mental health issues . . .” (id. at 3) and “exceptionally oppressive childhood” (id. at 5). The government did not oppose a variance from the advisory sentencing guideline range and argued for an 82-month sentence. (Doc. 38.) Sentencing was held on September 29, 2014. (Doc. 40.) The Court elected to vary or depart from the advisory sentencing guideline range and imposed a 42-month term for Counts One and Two and a six-month term for Count Three to be served consecutively to Counts One and Two, for a total sentence of 48 months in prison, to be followed by three years of supervised release. (Doc. 40.) The Judgment was entered on October 1, 2014. (Doc. 41.) No direct appeal was pursued.

         On June 1, 2016, Brown filed the pending Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. (Doc. 43.) As noted above, Brown raises three claims. First, she argues that application of the two-level enhancement under USSG § 2D1.21(b)(1) was inappropriate because the “handgun was found in the closet in a shoe without the clip in it” and was therefore “not used in an act of violence.” (Doc. 43-1 at 1; Doc. 43 at 4.) Second, in a related claim, she contends that the enhancement should have been found by a jury, not a sentencing judge, relying on Apprendi v. New Jersey, 530 U.S. 466 (2000). (Doc. 43-1 at 3.) Third, Brown asserts that the enhancement is invalid in light of Johnson v. United States, 135 S.Ct. 2551 (2015). (Id. at 4.)

         The government opposes Brown's Motion, asserting (1) the motion is barred by Brown's procedural default, (2) that two of her claims are barred by the statute of limitations which governs motions under 28 U.S.C. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.