16-2841-cr
United States v. Brown
                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

    At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New
York, on the 26th day of January, two thousand eighteen.

Present: ROBERT A. KATZMANN,
                     Chief Judge,
         RAYMOND J. LOHIER, JR.,
         CHRISTOPHER F. DRONEY,
                     Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,
                Appellee,

                 v.                                                     No. 16-2841-cr

ELSA BROWN,
                         Defendant,

JULIAN BROWN,
                  Defendant-Appellant.
________________________________________________

For Appellee:                         MICHAEL H. WARREN, Assistant United States Attorney (Peter
                                      A. Norling, Assistant United States Attorney, on the brief), for
                                      Bridget M. Rohde, Acting United States Attorney for the
                                      Eastern District of New York, Brooklyn, NY.

For Defendant-Appellant:   JONATHAN I. EDELSTEIN, Edelstein & Grossman, New York,
                           NY.
________________________________________________
     Appeal from a judgment of the United States District Court for the Eastern District of
New York (Donnelly, J.).

      ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
and DECREED that the judgment of the district court is AFFIRMED IN PART and
VACATED IN PART and the case is REMANDED for further proceedings.

        Defendant Julian Brown appeals from a judgment of the Eastern District of New York
(Donnelly, J.) entered August 4, 2016, convicting him of conspiracy to commit mail and health
care benefits fraud and sentencing him to time served. Brown had pleaded guilty to those
offenses on August 12, 2003. We assume the parties’ familiarity with the underlying facts, the
history of the case, and the issues on appeal.

        Brown makes two arguments on appeal. First, he contends that the district court erred in
failing to dismiss the charges against him or adjourn sentencing indefinitely due to the delay
between his plea and sentencing. Although inordinate sentencing delay can violate the Due
Process Clause, see United States v. Ray, 578 F.3d 184, 199 (2d Cir. 2009); see also Betterman v.
Montana, 136 S. Ct. 1609, 1612 (2016), Brown’s argument is without merit. When evaluating a
defendant’s claim that sentencing delay in his case was so extensive that his right to due process
was violated, “we ‘must consider [1] the reasons for the delay as well as [2] the prejudice to the
accused.’” Ray, 578 F.3d at 199 (alterations in original) (quoting United States v. Lovasco, 431
U.S. 783, 790 (1977)). Although “a defendant does not bear the burden of seeking [his] own
sentencing,” id. at 191, “[t]o the extent [he] seeks . . . to have [his] conviction vacated and the
indictment dismissed, [his] failure, or [his] attorney’s failure, to seek more prompt sentencing
weighs heavily against [him],” id. at 200. Brown, although in communication with his attorney
throughout the delay, never requested sentencing, a fact weighing heavily against the remedy of
dismissal. Also weighing against dismissal is Brown’s failure to show prejudice resulting from
the delay. Although he has shown that entry of a final judgment of conviction may cause him
substantial harm, he has not demonstrated that imposing sentence now would be prejudicial “in a
way that the immediate imposition of sentence would not have [been].” United States v. Paul,
634 F.3d 668, 675 (2d Cir. 2011) (quoting Ray, 578 F.3d at 201) (internal quotation marks
omitted).

        Brown next argues that the district court erred in calculating the loss attributable to his
fraud. The loss amount calculation contained in the Pre-Sentence Report (“PSR”) was based on
a series of loss claims for which there were no affidavits or supporting evidence. Declining to
rely on the PSR’s loss amount figure, the district court concluded that the amount of loss was
$15,228, which was the amount Brown received for an insurance claim submitted on October 2,
2000 for a stolen vehicle. However, Brown did not admit to fraud regarding the stolen vehicle
during his plea colloquy and the PSR states that the insurer was unable to demonstrate fraud as to
this claim. The district court therefore erred by including the $15,228 amount in the loss
calculation. See United States v. Ebbers, 458 F.3d 110, 128 (2d Cir. 2006) (explaining that “loss
must be the result of the fraud” and that “[l]osses from causes other than the fraud must be
excluded from the loss calculation”).




                                                2
        The government argues that the error was harmless for two principal reasons. The
government first contends that the error was harmless because the amount Brown gained from
his participation in the scheme may be used as an alternate measure of loss, see U.S. Sentencing
Guidelines Manual § 2B1.1 cmt. 3(B) (2015), and the actual loss measured in terms of Brown’s
gain was at least $15,228. As evidence of Brown’s gain, the government cites an FBI report
memorializing Brown’s statement regarding payments he received as part of the scam.
However, the FBI report appears not to clearly establish that Brown profited from the scheme in
an amount equal to or greater than $15,228.

        The government then argues that the error was harmless because even if the loss amount
is determined to be less than $15,228 and results in a lower Guidelines range, Brown will still be
sentenced to time served. We agree. See United States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009).

         However, the district court miscalculated the restitution award. It determined that the
$15,228 that Brown received for the insurance claim for the stolen vehicle represented the total
loss amount relevant to the restitution award determination. But because the $15,228 amount
was not actual loss caused by the conduct comprising the offense of conviction, it does not
reflect the appropriate amount of restitution. See United States v. Certified Envtl. Servs., Inc.,
753 F.3d 72, 103 (2d Cir. 2014).

         Accordingly, we remand this matter to the district court for re-calculation of the
restitution award.1 On remand, the government is restricted in its ability to present new evidence
of loss. “[W]here the government knew of its obligation to present evidence [with respect to a
restitution award] and failed to do so, it may not enter new evidence on remand.” United States
v. Archer, 671 F.3d 149, 168 (2d Cir. 2011). However, this rule does not apply “(a) where the
government’s burden was unclear, (b) where the trial court prohibited discussion of the issue, or
(c) where the evidence was, for a good reason, unavailable.” Id. If the government wishes to
introduce new evidence relating to restitution, it must first make a threshold showing that one of
these exceptions is met, and the district court may then exercise its discretion in deciding
whether to hear new evidence. Id.

       Accordingly, we AFFIRM the district court’s May 23, 2016 order denying Brown’s due
process claim, VACATE the restitution portion of Brown’s sentence, and REMAND for
recalculation of the restitution award.

                                                               FOR THE COURT:
                                                               Catherine O=Hagan Wolfe, Clerk




1
  While we remand this matter for re-calculation of the restitution award, since the restitution award was derived
from the loss amount—with offsets for monies already paid—the corrected restitution amount (prior to offsets for
monies already paid) would also constitute the corrected Guidelines loss amount.

                                                         3
