                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-14-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1945




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"USA v. Brewster" (2005). 2005 Decisions. Paper 1360.
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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 04-1945


                           UNITED STATES OF AMERICA

                                           v.

                                 BILLY BREWSTER,
                                            Appellant


                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                            D.C. Criminal No. 02-cr-00136
                              (Honorable Malcolm Muir)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 24, 2005

        Before: SCIRICA, Chief Judge, RENDELL and FISHER, Circuit Judges

                                 (Filed April 14, 2005)


                              OPINION OF THE COURT


SCIRICA, Chief Judge.

      On June 13, 2002, Billy Brewster was indicted by a federal grand jury on nineteen

counts of various firearms offenses. These charges arose from Brewster’s purchase and

sale of firearms in Pennsylvania and New York, his fraudulent acquisition of a
Pennsylvania driver’s license, his enlistment of his brother in the illegal purchase of

firearms in Pennsylvania, payments made to his brother for these services, and his

instruction to his brother that he file false police reports relating to the alleged theft of the

firearms Brewster had sold. On August 20, 2003, Brewster pleaded guilty to illegally

engaging in the business of dealing in firearms without a license, in violation of 18 U.S.C.

§ 922(a)(1)(A), and causing false statements to be made with respect to the purchase of

two firearms, in violation of 18 U.S.C. § 922(a)(6).

       A presentence report was prepared, recommending a Guidelines imprisonment

range of 37-46 months.1 At sentencing, Brewster raised three objections to the

presentence report. First, he claimed the report improperly counted the firearms involved

in his offense. Brewster also objected to the 2-level increase recommended by the

presentence report for his role as an organizer, leader, manager, or supervisor of criminal

activity, which was based upon his instruction to his brother to purchase firearms for him

following issuance of a New York protection order preventing him from purchasing the

firearms himself. Finally, Brewster objected to the 2-level enhancement for obstruction

of justice. He argued that the enhancement was improper because there was no evidence


   1
    The presentence report calculated Brewster’s total offense level at 21, based upon a
base offense level of 14, an increase by six levels because the offense involved 28
firearms, an increase of two levels because Brewster recruited his brother to participate
with him, an increase of two levels for obstruction of justice, and a decrease by three
levels due to Brewster’s acceptance of responsibility. Coupled with Brewster’s criminal
history category I, this offense level of 21 resulted in a Guidelines sentencing range of 37-
46 months.

                                                2
that his conduct regarding his brother’s filing of a false police report had any effect on the

government’s investigation.

        Brewster’s objections were overruled by order dated March 18, 2004, and on

March 30, 2004 he was sentenced to 46 months imprisonment, three years’ supervised

release, and a special assessment of $200. The District Court had subject matter

jurisdiction under 18 U.S.C. § 3231, and we have appellate jurisdiction under 28 U.S.C. §

1291.

        On appeal, Brewster raises the same three issues he raised at sentencing, claiming

that each of the three enhancements was based on facts found by the judge, rather than a

jury, rendering his sentence constitutionally infirm under Blakely v. Washington, 124 S.

Ct. 2531 (June 24, 2004). Since submitting his initial brief, Brewster has also challenged

his sentence under United States v. Booker, 543 U.S. - -, 125 S. Ct. 738 (2005).

        Having determined that the sentencing issues appellant raises are best determined

by the District Court in the first instance, we will vacate the sentence and remand for

resentencing in accordance with Booker.




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