                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-5-2007

USA v. Brown
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2822




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NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                  Case No.: 06-2822

                          UNITED STATES OF AMERICA

                                             v.

                                  LISA A. BROWN,

                                           Appellant
                               ____________________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                            District Court No.: 03-cr-00354-8
                   District Judge: The Honorable Jerome B. Simandle
                                ____________________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 December 14, 2006

                      Before: SMITH and ROTH, Circuit Judges,
                              and YOHN, District Judge*

                              (Filed: February 5, 2007 )

                               ____________________

                                     OPINION
                               ____________________




_____________________

      *The Honorable William H. Yohn Jr., Senior District Judge for the Eastern District
of Pennsylvania, sitting by designation.
YOHN, District Judge.

          Lisa A. Brown admitted to violating the conditions of her probation. As a result,

the District Court revoked her probation and sentenced her to five months imprisonment.

Brown appeals the judgment of sentence. For the reasons that follow, we will affirm.

          Brown was accordingly charged on May 6, 2003 with producing and using

fictitious financial instruments purportedly under the authority of the United States, in

violation of 18 U.S.C. §§ 371 and 514. The indictment also charged seven co-defendants.

On September 9, 2004, Brown pled guilty to a superseding information charging Brown

with misprision of a felony: conspiracy to pass and possess false and fictitious

instruments of the United States. On January 4, 2005, the District Court sentenced Brown

to two years of probation, required four months of home confinement, and imposed a fine

of one thousand dollars. On June 20, 2005, the Probation Office filed a petition with the

District Court alleging Brown had violated her probation by: (1) failing to report to the

Probation Office for a mandatory collection of a DNA blood sample, (2) failing to seek

lawful employment or document her claimed self-employment, (3) refusing to accept mail

sent by the Probation Office, and (4) failing to submit to a required monthly supervision

report.

          The District Court issued a summons for Brown to appear at a hearing scheduled

for July 7, 2005. Brown failed to attend. The District Court scheduled another hearing

for September 22, 2005. Brown again failed to attend. As a result, the District Court



                                               2
issued a warrant for Brown’s arrest. For three months thereafter, Brown remained a

fugitive. Authorities eventually arrested Brown on January 20, 2006. On February 2,

2006, Brown denied violating her probation. On February 23, 2006, as a result of

Brown’s odd behavior and statements–which nearly led the District Court to hold her in

contempt–the District Court granted the competency evaluation requested by Brown’s

counsel. Brown claimed that, as a Moorish American National, she was not required to

comply with local, state, and federal laws. Catherine Barber, Ph.D., evaluated Brown and

found her competent.

       On April 18, 2006, Brown admitted to violating her probation by refusing to accept

mail sent by the Probation Office. The remaining charges were dismissed. The court

held a sentencing hearing that lasted for two days. At the hearing, Dr. Barber testified

that Brown was competent. After considering the range of sentences suggested by the

Sentencing Guidelines 1 for the probation violation–three to nine months of

imprisonment–and for the original offense of misprision of a felony–four to nine months

of imprisonment–the District Court revoked Brown’s sentence and sentenced her to five

months of imprisonment on May 15, 2006. In reaching that sentence, the District Court

noted, in particular, the significance of Brown’s fraud against the United States and her

breach of the court’s trust. Brown timely appealed the judgment of sentence. On appeal,



1
 The suggested sentence for the probation violation was based on a violation that was Grade C
and a Criminal History of Category I. The now-advisory sentencing range for the original
offense was based on a total Offense Level of nine and a Criminal History Category I.

                                               3
Brown argues that the District Court failed to consider explicitly all of the relevant factors

enumerated in 18 U.S.C. § 3553(a), and that the District Court imposed an unreasonable

sentence.

       We exercise jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 because it

is a final decision of the District Court, and pursuant to 18 U.S.C. § 3742(a)(1) for

sentences imposed in violation of the law. See United States v. Cooper, 2006 U.S. App.

LEXIS 8075, at **5-9 (3d Cir. Feb. 14, 2006). Before United States v. Booker, 534 U.S.

220 (2005), we reviewed sentences imposed for violations of probation or supervised

release for “abuse of discretion that resulted in a ‘plainly unreasonable’ sentence.”

United States v. Dees, 467 F.3d 847, 852 (3d Cir. 2006) (citing United States v. Schwegel,

126 F.3d 551, 555 (3d Cir. 1997)). Brown contends that, in light of Booker, the “plainly

unreasonable” standard of review has been replaced with one of “reasonableness.”

Because we conclude that Brown’s sentence satisfies either standard, we need not

determine at this time which standard applies to sentences imposed for violations of

probation.

       Brown broadly asserts that the District Court failed to articulate explicitly, on the

record, its consideration of the § 3553(a) factors. We find otherwise. Under 18 U.S.C. §

3565(a)(2), if a “defendant violates a condition of probation at any time prior to the

expiration . . . of probation, the court may, after a hearing . . . , and after considering the

factors set forth in [§] 3553(a) to the extent they are applicable . . . revoke the sentence of



                                                4
probation and resentence the defendant under subchapter A.” § 3565(a)(2). Specifically,

the District Could should consider the non-binding policy statements of Guidelines

Manual Chapter 7. See § 3553(a)(4)(B). The District Court need not make specific

findings with respect to each of the § 3553(a) factors that it considered. Cooper, 2006

U.S. App. LEXIS 8075, at **11. Rather, the record must show that the District Court

gave meaningful consideration to the § 3553(a) factors and addressed the arguments

raised by the parties that have recognized legal merit. Id.

       The record makes abundantly clear that the District Court meaningfully considered

the relevant § 3553(a) factors. In fact, the District Court explicitly articulated its

consideration of the factors stated above. (J.A. 371-381.) Not only did it consider

Brown’s breach of the court’s trust, but the District Court also considered the nature of

her probation violations and underlying offense, her disrespect for the court, and the need

for deterrence. After “taking into account all the factors under [§] 3553(a)” (J.A. 377),

the District Court sentenced Brown to five months of imprisonment. Therefore, after

reviewing the record, we conclude that the District Court adequately considered the §

3553(a) factors.

       Brown also argues that her sentence is unreasonable because her probation

violation warranted leniency. She asserts that her sentence is greater than necessary to

fulfill the purposes of sentencing. In support of this assertion, Brown notes that her

probation violation was non-violent and influenced by her religious beliefs and



                                               5
membership to the Moorish American Temple. We reject this argument. As shown

below, in reaching Brown’s sentence, the District Court appropriately considered

Brown’s request for leniency due to her religious belief and the circumstances

surrounding her probation violation. (J.A. 369-80.)

       The District Court found that Brown’s conduct, while on probation, was the most

“contumacious and disrespectful” of any defendant to have come before the court. The

District Court noted that Brown had disregarded the instructions of her probation officer,

refused to receive mail from the Probation Office, and failed to appear for hearings

regarding her probation violations. Further, the District Court recognized the influence of

Brown’s religious beliefs and membership to the Moorish American Temple, but found

that others who shared the same belief system did not break the law. In light of Brown’s

involvement in a significant fraud against the United States–which “did not appear to be

casual or sporadic” (J.A. 378)–and her misconduct during probation, the court ruled out

continuing and extending her probation. The District Court concluded that “[i]t’s

necessary to [deter] others from participating in such schemes” and to “deter any future

criminal conduct by Ms. Brown.” (J.A. 379.) The District Court also took into account

the mitigating factors, including Brown’s remorse for her misconduct and her mother’s

need for assistance. However, the District Court additionally noted that after her previous

sentencing, Brown “didn’t keep her promise and seemed as virulent as ever in

undermining the probation department as she had previously attempted to undermine this



                                             6
forum.” (J.A. 380.) After considering these factors, the District Court imposed a

sentence toward the lower-end of the range suggested by the sentencing guidelines. Thus,

the District Court’s sentence was not unreasonable.

       We conclude that the District Court properly considered the relevant § 3553(a)

factors in arriving at Brown’s sentence, and that the District Court’s sentence was not

“plainly unreasonable.” Further, we conclude that the sentence was “reasonable.”

Therefore, we will affirm the District Court’s judgment of sentence.




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