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


1-12-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1784




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No: 04-1784


                            UNITED STATES OF AMERICA

                                           v.

                                  MARLON BROWN,

                                         Appellant


                                  _______________

                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                                (D.C. No. 03-cr-00457)
                     District Judge: Honorable Berle M. Schiller
                                  _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                 on September 15, 2005

              BEFORE: ROTH, MCKEE and FISHER, Circuit Judges,

                           (Opinion Filed: January 12, 2006)




                                      OPINION


ROTH, Circuit Judge:

      Counsel for Marlon Brown has filed a brief pursuant Anders v. California, 386
U.S. 738 (1967), representing that there are no non-frivolous appealable issues. Counsel

has also moved to withdraw from the case. Brown was given a copy of the motion and

corresponding brief with notice that he could file a pro se brief. He has done so,

challenging the failure of the District Court to grant a reduction for acceptance of

responsibility under U.S.S.G. §3E1.1 and asserting that the award of restitution was

improper and that he was improperly sentenced under Blakely v. Washington, 124 S.Ct.

2531 (2004). The government concedes that the $1500 restitution order should be

vacated because it is not related to the offense of conviction.

        Brown pled guilty to possession of a firearm by a convicted felon under 18 U.S.C.

§ 922(g)(1). The District Court denied the government’s motion for upward departure,

denied the government’s request to impose a four-level enhancement for possession of a

firearm in connection with another felony offense under U.S.S.G. § 2K2.1(b)(5), and

denied Brown a three-point reduction for acceptance of responsibility under U.S.S.G.

§3E1.1. Brown’s sentence included a forty-six month prison term and restitution of

$1,500. Brown has not appealed his conviction, only his sentence.

        Jurisdiction was conferred on the District Court by 18 U.S.C. § 3231. A timely

notice of appeal was filed. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §

3742.

        Turning to the sentence of imprisonment, a defendant’s claim, pursuant to United

States v. Booker, 125 S.Ct. 738 (2005), asserted for the first time on appeal, is subject to



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plain error review. United States v. Davis, 407 F.3d 162, 164-65 (3d Cir. 2005).

Although Brown has not expressly raised a Booker challenge in his appeal, we will

nonetheless proceed as though that challenge was made. United States v. Urban, 404

F.3d 754, 783 n.12 (3d Cir. 2005) (“We will vacate the sentences of Appellants... even

though they have not expressly indicated that they wish to challenge their sentences under

Booker.”).

       Where, as here, the District Court imposed sentence and treated the “Guidelines as

mandatory rather than advisory,” the defendant’s claim survives scrutiny under plain error

review. Davis, 407 F.3d at 164. In these circumstances, “we will decide claims of error

related to the conviction, vacate the sentence, and remand for consideration of the

appropriate sentence by the District Court in the first instance.” Id. at 166.

       On resentencing, the District Court shall not reimpose the order of restitution.

Furthermore, because this case is being remanded for resentencing, we will deny

counsel’s motion to withdraw.

       For the reasons stated above, we will affirm Brown’s conviction, vacate his

sentence and remand for resentencing consistent with Booker.




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