Scribd Logo
Upload

Welcome to Scribd!

  • 53 views

    United States v. Brown, 10th Cir. (2010)

    Uploaded by

    Scribd Government Docs
    1) Gerald Brown was convicted of multiple drug crimes involving 14 grams of cocaine and cocaine base and sentenced to 165 months in prison. His conviction and sentence were affirmed on direct appeal. 2) Brown filed a §2255 habeas petition alleging ineffective assistance of counsel. The district court denied the petition. 3) Brown appealed the denial and requested a certificate of appealability. The appeals court denied the request, finding that Brown's counsel was not ineffective. Counsel had objected to consideration of drug quantities not proven to a jury, and the omitted issue regarding a firearm enhancement was without merit.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd

    United States v. Brown, 10th Cir. (2010)

    Uploaded by

    Scribd Government Docs
    53 views4 pages
    1) Gerald Brown was convicted of multiple drug crimes involving 14 grams of cocaine and cocaine base and sentenced to 165 months in prison. His conviction and sentence were affirmed on direct appeal. 2) Brown filed a §2255 habeas petition alleging ineffective assistance of counsel. The district court denied the petition. 3) Brown appealed the denial and requested a certificate of appealability. The appeals court denied the request, finding that Brown's counsel was not ineffective. Counsel had objected to consideration of drug quantities not proven to a jury, and the omitted issue regarding a firearm enhancement was without merit.

    Original Description:

    Filed: 2010-06-08 Precedential Status: Non-Precedential Docket: 10-8004

    Copyright

    © Public Domain

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    1) Gerald Brown was convicted of multiple drug crimes involving 14 grams of cocaine and cocaine base and sentenced to 165 months in prison. His conviction and sentence were affirmed on direct appeal. 2) Brown filed a §2255 habeas petition alleging ineffective assistance of counsel. The district court denied the petition. 3) Brown appealed the denial and requested a certificate of appealability. The appeals court denied the request, finding that Brown's counsel was not ineffective. Counsel had objected to consideration of drug quantities not proven to a jury, and the omitted issue regarding a firearm enhancement was without merit.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    53 views4 pages

    United States v. Brown, 10th Cir. (2010)

    Uploaded by

    Scribd Government Docs
    1) Gerald Brown was convicted of multiple drug crimes involving 14 grams of cocaine and cocaine base and sentenced to 165 months in prison. His conviction and sentence were affirmed on direct appeal. 2) Brown filed a §2255 habeas petition alleging ineffective assistance of counsel. The district court denied the petition. 3) Brown appealed the denial and requested a certificate of appealability. The appeals court denied the request, finding that Brown's counsel was not ineffective. Counsel had objected to consideration of drug quantities not proven to a jury, and the omitted issue regarding a firearm enhancement was without merit.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    of 4

    FILED

    United States Court of Appeals


    Tenth Circuit
    UNITED STATES COURT OF APPEALS

    TENTH CIRCUIT

    June 8, 2010
    Elisabeth A. Shumaker
    Clerk of Court

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    v.
    GERALD A. BROWN,

    No. 10-8004
    (D.C. Nos. 2:07-CV-00057-ABJ and
    2:05-CR-00077-ABJ-1)
    (D. Wyo.)

    Defendant-Appellant.

    ORDER DENYING CERTIFICATE OF APPEALABILITY*

    Before KELLY, McKAY, and LUCERO, Circuit Judges.

    Gerald A. Brown, a federal prisoner proceeding pro se, requests a certificate of


    appealability (COA) to appeal the district courts denial of his 28 U.S.C. 2255 habeas
    petition.1 We deny a COA and dismiss the appeal.
    A jury convicted Brown of multiple drug crimes involving approximately fourteen
    grams of cocaine and cocaine base. At sentencing, the district court permitted the
    *

    This order is not binding precedent except under the doctrines of law of the case,
    res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
    consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    1

    Because Brown proceeds pro se, we liberally construe his application for a COA.
    See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

    government to present evidence of other drug transactions allegedly linked to Brown.


    Based on this evidence, the court determined that Browns sentence should reflect sales
    of over 1.2 kilograms of cocaine and cocaine base. The court also enhanced Browns
    offense level by two based on its finding that Brown possessed a firearm during his drug
    distribution activities. After granting Brown a downward variance due to the disparity
    between the applicable sentencing ranges for crack and powder cocaine, the court
    sentenced Brown to 165 months imprisonment.
    Browns conviction and sentence were affirmed on direct appeal. United States v.
    Brown, 212 Fed. Appx 736, 741 (10th Cir. 2007) (unpublished). Brown then filed a
    motion to reduce his sentence under Amendment 706 to the United States Sentencing
    Guidelines.2 We affirmed the district courts denial of that motion, refusing to reconsider
    arguments previously rejected in Browns direct appeal. United States v. Brown, 556
    F.3d 1108, 1113 (10th Cir. 2009). In 2007, Brown filed a 2255 habeas petition,
    alleging ineffective assistance of counsel, among other claims. The district court denied
    this petition and Browns request for a COA. Brown timely appealed.
    Because the district court did not grant him a COA, Brown may not appeal the
    district courts decision absent a grant of a COA by this court. 2253(c)(1)(B). We may
    issue a COA only if the applicant has made a substantial showing of the denial of a
    2

    Amendment 706 reduced the base offense levels for so-called crack cocaine
    crimes by two, thus reducing the sentencing ranges for these offenses. See United States
    v. Darton, 595 F.3d 1191, 1193 (10th Cir. 2010).
    -2-

    constitutional right. 2253(c)(2). This requires Brown to show that reasonable jurists
    could debate whether (or, for that matter, agree that) the petition should have been
    resolved in a different manner or that the issues presented were adequate to deserve
    encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 484 (2000)
    (quotations omitted).
    Brown raises two issues on appeal. First, he asserts his counsel was
    constitutionally ineffective for failing to object at sentencing or on direct appeal to the
    district courts consideration of drug quantities proved only by a preponderance of the
    evidence. Second, Brown claims that appellate counsel was constitutionally deficient
    because he failed to challenge the firearm enhancement on direct appeal.
    The factual assertion underlying Browns first argument is simply wrong. Defense
    counsel argued at sentencing and on direct appeal that consideration of drug quantities
    not proven to a jury beyond a reasonable doubt violated Browns rights under United
    States v. Booker, 543 U.S. 220 (2005). We emphatically rejected that argument on direct
    appeal. Brown, 212 Fed. Appx at 741.
    Appellate counsel did neglect to make any argument concerning Browns firearm
    enhancement. But this omission does not constitute ineffective assistance: We held on
    direct appeal that even if we were inclined to ignore the waiver, the high standard of
    clear error review would not allow us to overturn the judges ruling that evidence
    presented at sentencing supported the firearm enhancement. Brown, 212 Fed. Appx at

    -3-

    741 n.3. Consequently, any claims concerning the gun enhancement were without merit,
    and counsels failure to raise this issue on direct appeal did not deprive Brown of his
    Sixth Amendment rights. See United States v. Cook, 45 F.3d 388, 393 (10th Cir. 1995)
    (If the omitted issue is without merit, counsels failure to raise it does not constitute
    constitutionally ineffective assistance of counsel. (quotation omitted)).
    For the foregoing reasons, we DENY a COA and DISMISS the appeal. Because
    Brown has failed to advance a reasoned, nonfrivolous argument on the law and facts in
    support of the issues raised on appeal, DeBardeleben v. Quinlan, 937 F.2d 502, 505
    (10th Cir. 1991), we DENY his motion to proceed in forma pauperis.

    Entered for the Court

    Carlos F. Lucero
    Circuit Judge

    -4-

    You might also like