                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 14-4611
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                                  ELIJAH BROWN, JR.,
                                              Appellant
                                    _______________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                               (D.C. No. 1-12-cr-00243-02)
                         District Judge: Hon. Sylvia H. Rambo
                                    _______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                 September 17, 2015

             Before: FISHER, CHAGARES, and JORDAN, Circuit Judges.

                                (Filed: September 30, 2015)
                                     _______________

                                        OPINION
                                     _______________

JORDAN, Circuit Judge.

       Elijah Brown, Jr. asks us to reverse orders of the United States District Court for

the Middle District of Pennsylvania denying his motion to suppress a gun seized during a

       
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
search of his residence and sentencing him to a term of 150 months’ imprisonment. We

will affirm.

I.     BACKGROUND1

       A.      FACTUAL BACKGROUND

       On July 13, 2012, Tamela Corish and Rodney Nicholson – who were driving in

separate cars – stopped at a gas station in Harrisburg, Pennsylvania. A green SUV pulled

up to the station and one of the passengers jumped out and drove away in Corish’s car.

Corish and Nicholson chased the stolen vehicle and the green SUV. Eventually, the

green SUV parked in the 1600 block of Park Street. A passenger got out of the SUV and

pointed a gun at Corish and Nicholson and told them to leave. Investigators learned that

the registered owner of the SUV, Robert Hearn, was staying at 1624 Park Street.

Detective Christopher Krokos of the Harrisburg Bureau of Police interviewed Hearn later

that day, and Hearn told him that Elijah Brown, his neighbor living next door at 1622

Park Street, had been driving the SUV the night before.

       After Brown was identified as a suspect, Krokos went to 1622 Park Street and

encountered Brown on the front porch. While Krokos was speaking with Brown,

Brown’s mother came out of the house and Krokos told her not to return inside. He

advised her and Brown that he planned to obtain a search warrant, and other officers,

including now-Harrisburg Police Chief Thomas Carter, arrived to secure the scene. The

remaining occupants of the house were asked to leave. The officers did not remove those

       1
         In reviewing the denial of a motion to suppress, “we construe the record in the
light most favorable to the government.” United States v. Harrison, 689 F.3d 301, 306
(3d Cir. 2012).
                                            2
occupants but, instead, Brown’s mother retrieved them and they voluntarily left the

residence. The police advised all the occupants that they were free to go but they could

not re-enter the house. At the suppression hearing, Brown’s mother acknowledged that

the police did not detain her, but that she “wasn’t going to leave [her] house.”

       Eventually, Brown, who was sitting on the front porch of the house and was still

free to leave, called Carter over to speak to him. Brown and Carter stepped just inside

the front door for privacy and Brown told Carter that there was a gun in his bedroom on

the third floor of the house between the mattress and the pillows. Brown told Carter that

the police did not have to get a search warrant and that he would give consent for the

officers to search the room for the gun. The firearm, a Ruger 9mm handgun, and a

magazine with 12 rounds of ammunition were found in Brown’s bedroom shortly

thereafter, located exactly where Brown had described. Once the firearm was recovered,

Brown was arrested, read his Miranda warnings and transported to the police station.

Brown then told Krokos that the gun belonged to the perpetrator of the carjacking, Carlos

Hill, and that Brown had hid the gun in his bedroom.

       B.     PROCEDURAL HISTORY

       On September 26, 2012, a grand jury in the Middle District of Pennsylvania

returned a two-count indictment against Brown, and co-defendant Hill. Brown and Hill

were each charged with possession of a firearm by a convicted felon, 18 U.S.C. §§ 922(g)




                                             3
& 924(e), and possession of a stolen firearm, 18 U.S.C. §§ 922(j) & 924(a)(2).2 Brown

filed a motion to suppress the handgun and his post-arrest statement. The District Court

conducted a suppression hearing and issued an opinion denying the motion. Brown then

pleaded guilty to a one-count information charging possession of a firearm by a convicted

felon. 18 U.S.C. §§ 922(g)(1) & 924(a)(2). The plea agreement provided that Brown

could appeal the determination of his suppression motion and also allowed Brown to

appeal any sentence exceeding 120 months’ imprisonment. The District Court advised

Brown during the plea colloquy that if he was subject to the Armed Career Criminal Act

(the “ACCA”), 18 U.S.C. § 924(e), the penalties would increase from a statutory

maximum of ten years to a mandatory minimum of fifteen years up to a lifetime of

imprisonment.

      On November 20, 2014, the District Court conducted a sentencing hearing. The

District Court concluded that Brown was an Armed Career Criminal and sentenced him

to 150 months in prison. Brown timely appealed.




      2
        On March 8, 2013, Hill filed a motion requesting bifurcation, which was granted
by the District Court. On March 13, 2013, a jury convicted Hill of being a felon in
possession of a firearm.
                                            4
II.    DISCUSSION3

       A.     THE MOTION TO SUPPRESS

       Brown claims that the District Court erred in denying his motion to suppress the

handgun obtained as a result of the warrantless search of 1622 Park Street. Although the

Fourth Amendment to the United States Constitution generally forbids warrantless entry

into and search of a person’s home, consent is a well-established exception to the warrant

requirement imposed by that amendment. See United States v. Price, 558 F.3d 270, 277

(3d Cir. 2009). “To justify [entry and] search based on consent, the [g]overnment ‘has

the burden of proving that the consent was, in fact, freely and voluntarily given.’” Id. at

277-78 (quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968)). The

voluntariness of consent is evaluated based on the totality of the circumstances. Id. at

278. “Both the characteristics of the accused and the details of the interrogation are

useful to determine whether, under all the circumstances, [] consent to search was

voluntary, and no case should turn on the presence or absence of a single controlling

criterion.” Id. (internal quotation marks and brackets omitted). Factors to consider


       3
         The District Court had jurisdiction under 18 U.S.C. § 3231 and we have
jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over a district
court’s denial of a motion to suppress evidence, United States v. Mallory, 765 F.3d 373,
381 (3d Cir. 2014), but we review the court’s factual findings, including a finding that a
defendant’s consent to search was voluntary, for clear error, United States v. Kim, 27
F.3d 947, 954-55 (3d Cir. 1994); accord Mallory, 765 F.3d at 381. Because he did not
object below, we review Brown’s challenge to the procedural reasonableness of his
sentence for plain error. United States v. Flores-Mejia, 759 F.3d 253, 256 (3d Cir. 2014).
We review de novo a pure legal challenge to the application of the ACCA enhancement.
United States v. Gibbs, 656 F.3d 180, 184 (3d Cir. 2011).


                                             5
include: “the age, education, and intelligence of the subject; whether the subject was

advised of his or her constitutional rights; the length of the encounter; the repetition or

duration of the questioning; [] the use of physical punishment[;] … . [and] the setting in

which the consent was obtained and the parties’ verbal and non-verbal actions.” Id.

(internal quotation marks and brackets omitted).

       Here, the District Court concluded that Brown voluntarily initiated the

conversation with Carter; that he was not detained or physically restrained at any time;

and that there were “no indicia that Chief Carter intimidated or otherwise coerced

[Brown]’s statement.” 4 (App. at 182.) The District Court found that Brown and the

other occupants of the house were free to leave at all times, id., and the officers described

the atmosphere as “cooperative” and “relaxed.” (App. at 58, 94.) The District Court

concluded, given those circumstances, that the consent was completely voluntary and that

conclusion is not clearly erroneous.5 Cf. Price, 558 F.3d at 278 (consent was voluntary


       4
        That Brown was not allowed back into the house does not vitiate the
voluntariness of his consent. Indeed, “consent to search can be voluntary – and therefore
Fourth-Amendment-compliant – notwithstanding the fact that it was given while a
defendant was in custody without having received Miranda warnings.” United States v.
Renken, 474 F.3d 984, 987-88 (7th Cir. 2007); cf. United States v. Watson, 423 U.S. 411,
424 (1976) (“[T]he fact of custody alone has never been enough in itself to demonstrate a
coerced confession or consent to search.”).
       5
          Brown claims that the District Court’s factual findings are clearly erroneous
because the testimony of various Harrisburg police officers at the suppression hearing
conflicted with testimony that they gave at co-defendant Hill’s jury trial. But, Brown
never pointed out those inconsistencies to the District Court, nor did he offer any
argument about them. Accordingly, that argument has been forfeited. United States v.
Lockett, 406 F.3d 207, 212 (3d Cir. 2005) (“It is well settled that arguments asserted for
the first time on appeal are deemed to be waived and consequently are not susceptible to
review in this Court absent exceptional circumstances. ... Therefore, in the context of a
                                              6
where the consenter “was an adult, apparently of average intelligence, who had previous

experience with the criminal justice system”; “the atmosphere surrounding the encounter

was not hostile”; “the officers did not have their guns drawn when they asked for …

consent”; “[the consenter] was not verbally or physically threatened”; and “only two

officers … discussed … initial consent … in the driveway”).

       B.     REASONABLENESS OF BROWN’S SENTENCE

       Brown challenges his sentence as procedurally unreasonable, arguing that, in

sentencing him to a below-guidelines term of imprisonment, the District Court did not

adequately address all of the arguments raised by counsel and, thus, erred.6 When

determining an appropriate sentence, a district court must follow our well-established

process: (1) correctly calculate the applicable advisory guidelines range; (2) rule on any

departure motions; and (3) consider the relevant factors under 18 U.S.C. § 3553(a).

motion to suppress, a defendant must have advanced substantially the same theories of
suppression in the district court as he or she seeks to rely upon in this Court.”). And,
even if we were to excuse Brown’s forfeiture, the argument would still fail because he
has not shown how inconsistencies that are unrelated either to the voluntariness of the
consent or even to the search itself would affect the outcome here.
       6
         Brown and the government entered into a plea agreement, under which the
government agreed to seek a 120-month period of incarceration and Brown agreed to
relinquish his appeal rights (unless he received a sentence in excess of that period). The
United States Probation Department, however, determined that Brown was subject to the
ACCA enhancement and, as a result, he was subject to a mandatory minimum of 180
months’ incarceration. The District Court found that the enhancement applied, but
granted a departure and sentenced Brown to a period of 150 months’ incarceration, which
is below the statutory mandatory minimum. Cf. United States v. Reevey, 631 F.3d 110,
113 (3d Cir. 2010) (holding that a district court must impose at least the statutory
mandatory minimum unless it grants a downward departure (1) for substantial assistance
to the government or (2) under the so-called safety-valve provision of 18 U.S.C. §
3553(f)).

                                             7
United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). A sentence must be

both procedurally and substantively reasonable. Gall v. United States, 552 U.S. 38, 51

(2007). Brown challenges only the procedural reasonableness of his sentence. In

reviewing a district court’s sentence for procedural reasonableness, we consider, as

relevant here, whether the court failed to consider the § 3553(a) factors or failed to

explain its chosen sentence. Id.

       Here, Brown essentially claims that, even though the District Court gave him a

below-guidelines sentence, it failed to give consideration to his “history of abuse and

addiction coupled with [his] newly demonstrated determination to tackle those crime-

driving issues.” (Opening Br. at 28-29.) We disagree. As Brown acknowledges, he

“indisputably committed a serious offense and has a substantial prior record.” (Opening

Br. at 28.) The District Court recognized that it was not bound by the Guidelines and

imposed a sentence below the Guidelines suggested range. The Court explained that it

weighed Brown’s substantial criminal history, the need to protect the public, and his

individual characteristics, and concluded that a sentence somewhat below the Guidelines

was appropriate. On this record, that was sufficient. See Rita v. United States, 551 U.S.

338, 356 (2007) (district court’s reasoning must “satisfy the appellate court that [it] has

considered the parties’ arguments and has a reasoned basis” for its decision and that

“when a judge decides simply to apply the Guidelines to a particular case, doing so will

not necessarily require lengthy explanation”); United States v. Kluger, 722 F.3d 549, 567

(3d Cir. 2013) (“[T]he court does not need to ‘discuss and make findings as to each of the



                                              8
§ 3553(a) factors if the record makes clear the court took the factors into account in

sentencing.’”). Accordingly, Brown has not shown any procedural error.7

III.     CONCLUSION

         For the forgoing reasons, we will affirm the judgment and sentence of the District

Court.




         7
         Brown also challenges the application of the ACCA as a violation of his Fifth
and Sixth Amendment rights because the predicate convictions were “neither charged in
the indictment nor proved to a jury beyond a reasonable doubt.” (Opening Br. at 34.) As
he acknowledges, however, that claim was not raised before the District Court and is
foreclosed by existing precedent. Almendarez-Torres v. United States, 523 U.S. 224
(1998); United States v. Blair, 734 F.3d 218, 227 (3d Cir. 2013). On appeal, Brown
challenges only the constitutionality of the ACCA and does not contest that his prior
convictions qualify as ACCA predicates, although he apparently did so below.
                                              9
