                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-14-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1261




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BPS-147                                                       NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              ________________

                                  Nos. 05-1261/1870
                                  ________________

                           UNITED STATES OF AMERICA

                                           v.

                                DARRYL L. BROWN,

                                             Appellant
                                  ________________

                    On Appeal From the United States District Court
                        For the Eastern District of Pennsylvania
                   (E.D. Pa. Crim. Nos. 01-cr-00204 & 01-cr-00205)
                    District Judge: Honorable Mary A. McLaughlin
                                  ________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                 and on Motion to Expand Certificate of Appealability
                                  February 24, 2006

            Before: RENDELL, AMBRO and GREENBERG, Circuit Judges

                                (Filed: March 14, 2006)

                                  ________________

                                      OPINION
                                  ________________

PER CURIAM

      Darryl L. Brown appeals from the order of the United States District Court for the

Eastern District of Pennsylvania denying his § 2255 motion.
       Brown pled guilty on November 11, 2001, to multiple counts of conspiracy to

commit bank fraud, identity theft and wire fraud, bank fraud, interstate transportation of

stolen motor vehicles, and fraudulent use of a Social Security account number to deceive

or defraud. All of the charges arose out of Brown’s operation of an identity theft ring that

used stolen identities for the fraudulent purchase of automobiles. Brown was sentenced

to 180 months of imprisonment in the aggregate, supervised release, and restitution in the

amount of $1,155,591.09, plus a special assessment. We affirmed the conviction and

sentence on November 19, 2003.

       Brown filed a motion to vacate his sentence under 28 U.S.C. § 2255, which he

amended in March and July 2004, raising a total of twenty claims, including (1) a claim

under Blakely v. Washington, 124 U.S. 2531 (2004), challenging sentence enhancements

he received, (2) claims of constitutional deficiencies in the indictment and guilty plea

hearing, and (3) numerous ineffective assistance of counsel claims arising out of (a) the

Government’s failure to file a 5K1.1 motion on his behalf, and (b) the fact that he did not

receive a downward adjustment for acceptance of responsibility. Brown also alleged that

counsel was ineffective for failing to challenge on appeal the District Court’s calculation

of the restitution amount, failing to confer with Brown about the 302 statements prior to

the hearing on Brown’s motion to compel specific performance of the plea agreement,

failing to bring to the Court’s attention the Government’s failure to disclose to the defense

the existence of letters that were favorable to Brown, and failing to challenge on appeal

the Government’s motion for upward departure based on the non-economic harm to the

victims of identity theft. The District Court denied Brown’s Blakely claim, holding that

                                             2
Blakely did not apply retroactively on collateral review. The District Court issued a

certificate of appealability as to the Blakely claim, however, explaining that “if Blakely

were retroactive and if a Blakely claim were not procedurally defaulted, an issue that the

Court does not decide here, the Court would have difficulty concluding that Mr. Brown

admitted at the time of his guilty plea hearing all of the operative facts that apply to the

Guideline enhancements in this case.” The District Court denied the remaining claims on

their merits and declined to issue a certificate of appealability as to those claims. Brown

filed a motion for reconsideration, which the District Court denied. Brown then filed this

timely appeal.

       We have jurisdiction to consider this appeal under 28 U.S.C. §§ 1291 and 2255.

Brown has filed a motion for appointment of counsel and an application to expand the

certificate of appealability. After issuance of our decision in Lloyd v. United States, 407

F.3d 608 (3d Cir. 2005), the Clerk advised the parties that the Court would consider

possible summary action in this matter in light of Lloyd. The parties have responded and

the matter is ready for disposition. We exercise plenary review over the District Court’s

order denying § 2255 relief. United States v. Jenkins, 333 F.3d 151, 153 (3d Cir. 2003).

We will affirm the District Court’s order.

                                               I.

       Brown requests that the certificate of appealability be expanded to include the

remaining nineteen claims in his § 2255 motion. We deny the request. The District Court

correctly treated Brown’s amendment of those claims, in March 2004, as having replaced

the original § 2255 claims 1-4, and thus correctly dealt with those claims, as amended.

                                               3
With respect to the remainder of his claims, we conclude that Brown has not made a

substantial showing of the denial of a constitutional right, for substantially the reasons set

forth by the District Court in its memorandum opinion. See 28 U.S.C. § 2253(c). We

decline to address Brown’s new claims with regard to appellate counsel Campbell and

former plea counsel Martir because he did not raise them in the District Court.

                                              II.

       Brown contends that the District Court erred in adjusting his base offense level

upward by twenty-three points based on the court’s factual findings made pursuant to the

Federal Sentencing Guidelines. Brown argues that his sentence was imposed in violation

of Blakely.1 Of course, this argument now is governed by the Supreme Court’s decision

in United States v. Booker, 125 S.Ct. 738 (2005). We have held that the rule announced

in Booker, which applied the Blakely rule to the Federal Sentencing Guidelines, is not

retroactively applicable to cases on collateral review where the judgment of conviction

was final as of January 12, 2005, the date on which the Booker opinion was issued. See

Lloyd v. United States, 407 F.3d 608 (3d Cir. 2005). Brown’s conviction became final in



       1
          Brown asserts in his Response to the notice advising him of possible summary
action that his § 2255 motion also included a claim that counsel was ineffective for failing
to raise, on direct appeal, an Apprendi challenge to the sentence enhancements. Our
review of the record indicates that Brown did not raise this claim in his original § 2255
motion or any subsequent amendments. He raised the issue only in response to the
Government’s argument that his Blakely claim was procedurally defaulted. The District
Court explicitly declined to decide the Blakely claim on procedural default grounds.
Because Brown did not raise the claim in the District Court, we will not review it for the
first time on appeal. If Brown wishes to pursue a second or successive § 2255 motion in
District Court, he must obtain leave from this Court before doing so. See § 28 U.S.C. §§
2255 ¶ 8 & 2244.

                                              4
August 2002, well before Blakely and Booker were decided. Our decision in Lloyd thus

resolves the question of retroactivity in this case, which is the only issue as to which the

District Court granted a certificate of appealability. Accordingly, we will summarily

affirm the District Court’s order. In light of the foregoing, there is no need to appoint

counsel in this matter.

                                               III.

       For the foregoing reasons, Brown’s motion for appointment of counsel and his

application to expand the certificate of appealability are denied. Because precedent in

Lloyd v. United States, 407 F.3d 608 (3d Cir. 2005), which was decided after this appeal

was taken, answers the question as to which the District Court granted a certificate of

appealability, we will summarily affirm the District Court’s order. See Third Circuit

LAR 27.4 and I.O.P. 10.6.




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