                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-19-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3455




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                                                                 NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                             Case Nos: 02-3455 and 02-3479

                            UNITED STATES OF AMERICA

                                                v.

                                  DARRYL L. BROWN,

                                           Appellant
                                   __________________

                    On Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                    (D.C. Nos. 01-CR-00204-1 and 01-CR-00205-1)
                   District Judge: The Honorable M ary A. McLaughlin
                                   __________________

                              Submitted Pursuant to LAR 34.1
                                    November 4, 2003

                   Before: McKEE, SMITH, and WEIS, Circuit Judges

                                (Filed: November 19, 2003)

                                      _____________

                                OPINION OF THE COURT
                                    _____________

SMITH, Circuit Judge.

       Defendant Darryl Brown pleaded guilty to four counts of conspiracy to commit

bank fraud, identify theft, and wire fraud, 27 counts of interstate transportation of stolen

motor vehicles, seven counts of bank fraud, and four counts of fraudulent use of a Social
Security account number. At sentencing, the District Court determined that Brown had

obstructed justice by falsely stating to agents of the Federal Bureau of Investigation

(“FBI”) that one of Brown’s co-defendants received thousands of dollars in kickbacks

from Brown during the course of the conspiracy. Brown admitted at sentencing that his

statements were materially false and that they significantly obstructed or impeded the

investigation and prosecution of his co-defendant.1 Based on these false statements, the

District Court enhanced Brown’s offense level by two levels for obstruction of justice

under U.S.S.G. § 3C1.1, and refused to apply the three-level decrease for acceptance of

responsibility under U.S.S.G. § 3E1.1.

       Brown appeals only the District Court’s denial of the acceptance of responsibility

reduction under § 3E1.1. The District Court had jurisdiction pursuant to 18 U.S.C. §

3231. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §

3742(a).

       Section 3E1.1of the Sentencing Guidelines provides for a reduction in offense

level “[i]f the defendant clearly demonstrates acceptance of responsibility for his

offense.” W hether a defendant clearly demonstrates acceptance of responsibility is




  1
     Prior to sentencing, the District Court held an evidentiary hearing on Brown’s motion
to compel specific performance of his plea agreement. At the conclusion of the hearing,
the District Court determined that Brown’s statements to the FBI were false, and that
Brown had thereby breached the terms of his plea agreement. The District Court also
determined that Brown perjured himself during the evidentiary hearing by repeating the
false statements that were made to the FBI.

                                             2
“essentially factual” and is therefore reviewed for clear error only. United States v. Ortiz,

878 F.2d 125, 128 (3d Cir. 1989); see 18 U.S.C. § 3742(e). 2 Clearly demonstrating

acceptance of responsibility requires a genuine show of contrition, United States v.

Muhammad, 146 F.3d 161, 168 (3d Cir. 1998), and the defendant bears the burden of

establishing by a preponderance of the evidence that he is entitled to the reduction, United

States v. Rodriguez, 975 F.2d 999, 1008 (3d Cir. 1992).

       Application Note 4 to § 3E1.1 counsels: “Conduct resulting in an enhancement

under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily

indicates that the defendant has not accepted responsibility for his criminal conduct.

There may, however, be extraordinary cases in which adjustments under both §§ 3C1.1

and 3E1.1 may apply.” See also Stinson v. United States, 508 U.S. 36, 38 (1993)

(commentary to the guidelines is binding unless it violates the Constitution or a federal

statute, or is inconsistent with the guideline it interprets). Application Note 4 recognizes

a “logical inconsistency” between obstruction of justice and acceptance of responsibility.

United States v. Gonzales, 12 F.3d 298, 300 (1st Cir. 1993); see also United States v.

Honken, 184 F.3d 961, 970 (8th Cir. 1999) (“[W]hen the Commission refers to an

‘extraordinary case,’ it means a situation that is extremely rare and highly exceptional.”).




  2
     We exercise plenary review over the District Court’s interpretation and legal
applications of the Sentencing Guidelines. United States v. Figueroa, 105 F.3d 874,
875-76 (3d Cir. 1997).

                                              3
       Before the District Court and on appeal, Brown argues that he truthfully admitted

his own criminal conduct and entered a timely plea of guilty prior to trial, in accordance

with Application Notes 1-3 of § 3E1.1. Brown argues that his is one of the “extraordinary

cases” contemplated by Application Note 4, because his false statements concern, not his

own conduct, but the conduct of a co-defendant.

       Whether a given defendant presents one of the “extraordinary cases” warranting

adjustment under both §§ 3E1.1 and 3C1.1 requires consideration of the totality of the

circumstances, including the nature of the defendant’s obstructive conduct and the degree

of the defendant’s acceptance of responsibility. See Honken, 184 F.3d at 968. That

Brown’s false statements concerned the conduct of a co-defendant rather than his own

conduct may, in certain cases, diminish the tension between §§ 3C1.1 and 3E1.1, but it is

by no means dispositive.

       At sentencing, the District Court reviewed Brown’s cooperation with law

enforcement and explored at length the relationship between Brown’s obstructive conduct

and the offense for which he was convicted. The District Court nevertheless found that

Brown’s case was not “extraordinary or out of the ordinary” so as to merit a reduction for

acceptance of responsibility. “The sentencing judge is in a unique position to evaluate a

defendant’s acceptance of responsibility.” U.S.S.G. § 3E1.1 Application Note 5. This is

no less true with respect to whether a defendant’s obstructive conduct is inconsistent with

a genuine showing of remorse or whether the obstruction is substantially outweighed by



                                             4
other conduct demonstrating acceptance of responsibility. See also United States v.

Singh, 923 F.2d 1039, 1043-44 (3d Cir. 1991). In light of the nature of Brown’s

obstruction and the principles underlying Application Note 4 to § 3E1.1, we cannot say

that the District Court’s finding is clearly erroneous. United States v. Bass, 54 F.3d 125,

128 (3d Cir. 1995) (District Court’s factual findings are clearly erroneous only if “we are

left with the definite and firm conviction that a mistake has been committed”).

Accordingly, we will affirm the judgement of the District Court.

                     ______________________________________




                                          By the Court,

                                            /s/ D. Brooks Smith
                                          Circuit Judge




                                             5
