                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0860n.06

                                        Case No. 14-3257                               FILED
                                                                                 Nov 14, 2014
                          UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                           )
                                                    )
       Plaintiff-Appellee,                          )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE NORTHERN DISTRICT OF
DANIEL J. BROWN, III, aka D.J. Brown, oka           )       OHIO
Daniel Joseph Brown, III,                           )
                                                    )
       Defendant-Appellant.                         )


       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
Case No. 14-3257
United States v. Brown


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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United States v. Brown


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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United States v. Brown


       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.




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