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United States v. Brown

United States Court of Appeals, District of Columbia Circuit

June 15, 2018

United States of America, Appellee
Dawayne Brown, also known as Goon, Appellant

          Argued January 23, 2018

          Appeals from the United States District Court for the District of Columbia Nos. 1:13-cr-00203-5, 1:13-cr-00203-3, 1:13-cr-00203-6, 1:13-cr-00203-2

          Christine Pembroke, appointed by the court, argued the cause and filed the briefs for appellant Dawayne Brown.

          Mary E. Davis, appointed by the court, argued the cause for appellant Marquette Boston. With her on the briefs was Pleasant S. Brodnax III, appointed by the court.

          Barbara E. Kittay, appointed by the court, argued the cause and filed the briefs for appellant Ira Adona.

          Jonathan Zucker, appointed by the court, argued the cause and filed the briefs for appellant Keith Matthews.

          James A. Ewing, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Elizabeth Trosman, Elizabeth H. Danello, and George P. Eliopoulos, Assistant U.S. Attorneys.

          Before: Garland, Chief Judge, and Kavanaugh and Millett, Circuit Judges.


          PER CURIAM

         A jury convicted Dawayne Brown, Marquette Boston, and Keith Matthews of crimes associated with unlawful distribution of PCP. A fourth defendant, Ira Adona, pled guilty before trial. The district court sentenced Brown to 14 years in prison; Boston to eight years; Matthews to nine years; and Adona to nine years. Adona's sentence was to be served consecutively to a prison sentence of two years and four months imposed by the D.C. Superior Court for Adona's attempted assault with a dangerous weapon.

         Defendants challenge their convictions and sentences. Brown argues that: (i) the district court's jury instructions were erroneous in certain respects; and (ii) the district court based Brown's sentence on an erroneous factual finding. Boston contends that the evidence was insufficient to support his conviction for possession with intent to distribute PCP. Adona argues that: (i) the district court double counted a D.C. Superior Court conviction in determining his sentence; and (ii) his federal and D.C. sentences should run concurrently, not consecutively. Matthews argues that the district court erred in sentencing because: (i) the court enhanced Matthews' sentence based on attempted assault with a dangerous weapon even though, according to Matthews, attempted assault with a dangerous weapon is not a crime of violence; and (ii) the district court failed to adequately explain Matthews' above-Guidelines sentence.

         We affirm the judgments of the district court with respect to Brown and Boston. We vacate the sentences of Adona and Matthews, and we remand the case to the district court for resentencing of those two defendants.


         Louis Clifton lived in the Woodberry Village apartment complex in Washington, D.C. On January 12, 2013, Clifton walked into the Metropolitan Police Department's 7th District station and told the officers an extraordinary story: Armed men had taken over his apartment and were using the apartment to manufacture and sell PCP - all while Clifton continued to live there.

         According to Clifton, at the end of December 2012, Dawayne Brown and Keith Matthews attacked Clifton in the foyer of his building and demanded access to his apartment. Clifton refused. He managed to break free and fled to the safety of his apartment. Clifton thought that was the end of it. He was wrong.

         One week later, Dawayne Brown again approached Clifton - this time, with a gun. Brown forced Clifton into a local Dollar Store at gunpoint and had Clifton make a copy of Clifton's house key. Clifton complied, and Brown immediately took the key. From then on, Brown and Matthews used Clifton's apartment as they pleased. They came and went when they wanted, without permission. And they used the apartment to prepare "dippers" - cigarettes dipped in PCP - and to store the money earned from selling those dippers.

         Clifton endured Brown and Matthews in his apartment for several weeks before going to the police. He claimed to have sought help discreetly at first, including from family members. But that proved ineffective. Finally, he turned to the police for help evicting his unwelcome, PCP-dealing home invaders.

         The police traveled to Woodberry Village and entered Clifton's apartment, using the key that Clifton had provided them. A surprised Brown was inside the apartment. Police placed Brown on a sofa and handcuffed him. When they lifted him from the sofa, they found a loaded handgun. The police continued their search of Clifton's apartment and discovered an Uzi nine-millimeter semi-automatic rifle and a .38-caliber revolver under the love seat. They also discovered evidence of PCP, including glass vials with various amounts of PCP. In total, 44.4 grams of PCP were recovered.

         The police searched Brown's cell phone. Text messages on Brown's phone led police to pursue Keith Matthews.

         On March 7, 2013, police arrested Matthews inside another Woodberry Village apartment. A search of Matthews' phone led police to discover that the takeover of Clifton's apartment was not an isolated event. Brown, Matthews, and some friends had formed a drug-dealing operation that they called "Little Mexico." Little Mexico's method of operation involved using Woodberry Village apartments to stash guns and sell PCP.

         Matthews' cell phone led police to Tiffany Williams' apartment. When police executed a search warrant at Williams' home, they found Williams, Ira Adona, Breal Hicks, and Williams' six-year-old daughter. Police arrested the three adults and searched the apartment. The search yielded evidence similar to that found in Clifton's apartment: partially filled PCP vials, three handguns, and Everclear grain alcohol, a known cutting agent for PCP.

         Tiffany Williams cooperated with the police and led them to the apartment of Conovia Eddie, another member of Little Mexico. After obtaining a search warrant, the police raided Eddie's apartment. They used a battering ram to enter after their demands to open the door had been ignored. Inside, they found Marquette Boston. Boston was standing near the bathroom, and the odor of PCP was coming from a running toilet. Police arrested Boston. Police found vials partially filled with PCP or containing PCP residue, empty vials, and rubber gloves, in addition to a bulletproof vest and a loaded .22-caliber pistol with an effaced serial number.

         On September 10, 2013, the government obtained a 39-count grand jury indictment against Brown, Boston, Matthews, Adona, Hicks, and Eddie for conspiracy to distribute and to possess with the intent to distribute PCP and related offenses.

         On November 5, 2014, Adona pled guilty to conspiracy to distribute and possess PCP. Under the plea agreement, Adona agreed that he had conspired with others to distribute PCP in Woodberry Village. He also admitted that he had shot a man named Karl Carrington in the back on April 30, 2012, during a marijuana transaction. The two crimes were to be sentenced separately. In the D.C. Superior Court, Adona would be sentenced for the shooting offense. In the U.S. District Court, Adona would be sentenced for the drug conspiracy. The D.C. Superior Court sentenced Adona to two years and four months in prison. The district court sentenced Adona to nine years in prison, to be served consecutively to the sentence of imprisonment imposed by the D.C. Superior Court.

         On March 24, 2015, the jury found Brown, Boston, and Matthews guilty.[1] Brown was found guilty of second-degree burglary while armed; possession with intent to distribute PCP; and possession of an unregistered firearm. Boston was found guilty of possession with intent to distribute PCP. Matthews was found guilty of unlawful possession of a firearm and ammunition.

         The district court sentenced Brown to 14 years in prison; Boston to eight years in prison; and Matthews to nine years in prison.

         Brown, Boston, Adona, and Matthews now appeal.


         Brown challenges the district court's jury instructions and his sentence.


         Brown challenges three aspects of the jury instructions.

         First, in its instructions to the jury, the district court stated that Brown had previously been convicted in the D.C. Superior Court for possession of an unregistered firearm. Brown argues on appeal that the district court erred when it informed the jury of Brown's prior firearm conviction. The problem for Brown is that he not only did not object to this instruction at trial, but he affirmatively invited this instruction. Brown's counsel insisted that the jury be informed of the prior conviction, presumably because of a strategic judgment in the context of all of the evidence and instructions in the case. A defendant may not complain about invited error. See, e.g., United States v. Ginyard, 215 F.3d 83, 88 (D.C. Cir. 2000). Because Brown invited the error, he may not now complain of the error on appeal.

         Second, Brown contends that the district court failed to give a special unanimity instruction with respect to the possession with intent to distribute PCP charge. Brown contends that jurors may have relied on different testimonial and physical evidence to conclude that he was guilty on that count. He claims that the jurors' reliance on different facts to support his conviction violates the Sixth Amendment. Brown did not raise this argument in the district court. Therefore, our review is for plain error. We need not dally on this argument. Because there is no precedent of the Supreme Court or this court requiring a district court to give a special unanimity instruction sua sponte in circumstances like those in this case, the district court's failure to do so cannot constitute plain error. See United States v. Hurt, 527 F.3d 1347, 1356 (D.C. Cir. 2008). Indeed, in Hurt, this court held that "the trial court's failure to give a special unanimity instruction sua sponte was not plain error, " and Brown makes no argument that would distinguish his case from Hurt's. Id. at 1352. As a result, Brown's argument is unavailing.

         Third, Brown contends that the burglary instruction was inadequate. The crime of burglary requires proof that the accused person entered the dwelling of another with the intent to commit an identified offense. See D.C. Code § 22-801(a). The district court instructed the jury that it must find that "the defendant intended to use Mr. Clifton's apartment as a place to possess and store narcotics." Trial Tr. 31 (Mar. 17, 2015). The district court further explained that Brown must have "intended to commit a crime" on the premises. Id. Brown contends that instruction was insufficient because it did not identify the narcotics as unlawful narcotics. We disagree. In context, the burglary instruction plainly referred to illegal drugs. Any rational juror would have easily understood that the burglary charge related to Brown's allegedly entering Clifton's apartment with the intent to store illegal drugs.


         Brown argues that the district court, in sentencing Brown, incorrectly attributed 100 to 400 grams of PCP to him. But Brown is simply mistaken about the district court's factual finding. Brown was not sentenced for possessing more than 100 grams of PCP. He was sentenced for possessing 76.6 grams. The probation office determined that "Mr. Brown is accountable for 76.6 grams of PCP resulting in a base offense level of 20." At sentencing, the district court said that it was adopting the probation office's finding of 76.6 grams. We further know that the district court adopted the probation office's finding because a finding that Brown possessed 100 or more grams would have resulted in a base offense level of 24. A finding that he possessed 76.6 grams would mean a base offense level of 20. The district court calculated Brown's base offense level to be 20.


         Marquette Boston argues that there was insufficient evidence to convict him of possession with intent to distribute PCP.

         When reviewing sufficiency claims, we "accept the jury's guilty verdict" if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Andrews, 532 F.3d 900, 903 n.1 (D.C. Cir. 2008) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (internal quotation marks omitted). We view the evidence in the light most favorable to the government. See id. at 904 n.1.

         Boston was not found with PCP on his person, but rather near illegal drugs inside of Conovia Eddie's apartment. But the evidence tying Boston to the PCP was substantial. First, a key to Eddie's apartment was found on Boston, although he did not live there. Possession "of a key" may be "sufficient to establish constructive possession." United States v. Dingle, 114 F.3d 307, 311 (D.C. Cir. 1997). Second, Boston's presence inside the apartment was consistent with Little Mexico's method of operation of using others' apartments as trap houses. Third, the officers had to use a battering ram for roughly a minute to gain access to the apartment when they were not admitted after their knock and announce. See Trial Tr. 107 (Mar. 3, 2015 a.m.). A reasonable jury could have considered that to be evasive conduct on Boston's part indicating constructive possession of the contraband found inside the apartment. See United States v. Dorman, 860 F.3d 675, 680 (D.C. Cir. 2017). Fourth, the officers testified at trial that they smelled PCP coming from the bathroom. Boston was standing near the bathroom at the moment that the police entered, and the toilet had been recently flushed. Fifth, a vial containing PCP residue was found in the apartment and had Boston's left palm print on it. Sixth, a woman named Monique Mathis testified at trial that Boston sold PCP in Woodberry Village.

         Viewing all of the evidence in the light most favorable to the government, a rational jury could conclude that Boston possessed PCP and, using Eddie's apartment as a base of operations, intended to distribute PCP.


         We next turn to Ira Adona's appeal. The only defendant-appellant to plead guilty, Adona raises a single challenge to his 108-month federal prison sentence. In his view, the district court should have sentenced him concurrently with, rather than consecutively to, a D.C. Superior Court sentence that stemmed from his federal guilty plea. To reach that argument, we first must determine whether Adona waived his right to this appeal. We conclude that the appeal is not barred and that the district court plainly erred in its consecutive-sentencing analysis. We therefore vacate Adona's sentence and remand for resentencing.


         The government contends that Adona's sentence is not subject to appeal because his plea agreement waived his right to appeal his sentence except in specified circumstances. Like all other courts of appeals, our circuit holds that a defendant "may waive his right to appeal his sentence as long as his decision is knowing, intelligent, and voluntary." United States v. Guillen, 561 F.3d 527, 529 (D.C. Cir. 2009). Adona's plea agreement, which he signed in April 2014, stated:

Your client agrees to waive the right to appeal the sentence in this case, . . . and the manner in which the sentence was determined, except to the extent the Court sentences your client above the statutory maximum or guidelines range determined by the Court, in which case your client would have the right to appeal the illegal sentence or above-guidelines sentence, but not to raise on appeal other issues regarding the sentencing.

         Plea Agreement 7. Adona's sentence did not qualify under either of the specified exceptions: it was not above either the statutory maximum or the Guidelines range determined by the court. Accordingly, were we to look only at the written plea agreement, that would end the matter, and the appeal would be barred. See United States v. Hunt, 843 F.3d 1022, 1027 (D.C. Cir. 2016) (noting that we "ordinarily dismiss an appeal falling within the scope of [an appeal] waiver").

         But although we start with the text of the plea agreement, we cannot end there: our duty to ensure that an appeal waiver is knowing, intelligent, and voluntary requires us to examine also the colloquy with the judge during which Adona entered his guilty plea. See, e.g., Hunt, 843 F.3d at 1028-29; United States v. Kaufman, 791 F.3d 86, 88 (D.C. Cir. 2015); United States v. Godoy, 706 F.3d 493, 495 (D.C. Cir. 2013). Such plea colloquies are required by Federal Rule of Criminal Procedure 11(b), and aim "to dispel any misconceptions that the defendant may have about his likely sentence" and to correct or clarify any "erroneous information given by the defendant's attorney." United States v. Horne, 987 F.2d 833, 838 (D.C. Cir. 1993) (internal quotation marks omitted). The Supreme Court has admonished that Rule 11's "procedural safeguards serve[] important constitutional interests in guarding against inadvertent and ignorant waivers of constitutional rights." United States v. Vonn, 535 U.S. 55, 67 (2002). Accordingly, we have instructed that "courts conducting plea colloquies must scrupulously adhere to the obligations of Rule 11." United States v. Shemirani, 802 F.3d 1, 3 (D.C. Cir. 2015).

         As relevant to this appeal, Rule 11(b) instructs a trial court to "inform the defendant of, and determine that the defendant understands, . . . the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence" before accepting a guilty plea. Fed. R. Crim. P. 11(b)(1)(N). In prior cases, we have assiduously assured compliance with this rule. Noting that "[c]riminal defendants need to be able to trust the oral pronouncements of district court judges, " we have scrutinized Rule 11 colloquies to ensure that district courts accurately explain the scope of defendants' appeal waivers. Godoy, 706 F.3d at 495 (quoting United States v. Wood, 378 F.3d 342, 349 (4th Cir. 2004) (internal quotation marks omitted)). Specifically, we have examined whether "the district court mischaracterized the meaning of the waiver in a fundamental way." Id. If so, "the district court's oral pronouncement controls, " and the "appeal is not barred." Id. at 496; see Hunt, 843 F.3d at 1028-29; Kaufman, 791 F.3d at 88; United States v. Fareri, 712 F.3d 593, 594-95 (D.C. Cir. 2013).

         We focus our analysis on what the district court told Adona during the plea colloquy. When explaining to Adona the rights that his guilty plea would waive, the district court stated:

Now, with regard to certain circumstances, you may even have an opportunity, the right to appeal the sentence of this court on the grounds of reasonableness. Do you understand that?

         Adona Plea Hearing Tr. 10 (Nov. 5, 2014). Adona answered in the affirmative. Id.

         The court's statement described a different right to appeal than that contained in the written appeal waiver. "Taken for its plain meaning - which is how criminal defendants should be entitled to take the statements of district court judges, " Godoy, 706 F.3d at 495 - the district court's statement suggested to Adona that he could appeal a sentence he thought unreasonable. Because "the district court mischaracterized the meaning of the waiver in a fundamental way, " "the district court's oral pronouncement controls, " and the "appeal is not barred." Id. at 495-96.

         The district court's statement is not saved by its conditional nature. The court's use of "may" was hardly clarifying because "may" can mean "can" as well as "might." See Black's Law Dictionary 1127 (10th ed. 2014). Nor is the statement saved by the "with regard to certain circumstances" language, which was unaccompanied by any description of what those "certain circumstances" were or were not. See Kaufman, 791 F.3d at 88 (vitiating plea waiver where the court initially told the defendant that he "would still have the right to appeal the sentence if [he] believe[d] the sentence is illegal, " and later told him that he "might have the right to appeal, under some circumstances, if he did not 'like' the sentence"); cf. Fareri, 712 F.3d at 594 (vitiating appeal waiver where the district court declared, without further explanation, that the defendant "probably retain[ed] the right" to appeal certain sentences). By leaving those circumstances unexplained, the district court failed to "inform the defendant of . . . the terms of any plea-agreement provision waiving the right to appeal, " as Rule 11(b) requires.

         We also cannot uphold the waiver on the grounds that "reasonableness" is a "legal term of art" in the Sentencing Guidelines context. See United States v. Ingram, 721 F.3d 35, 43 (2d Cir. 2013) (Calabresi, J., concurring). In assessing the adequacy of plea colloquies, we do not assume familiarity with criminal-law argot. Rather, we ask how a defendant like Adona (who left school after completing eleventh grade, Adona Plea Hearing Tr. 6) would understand the district court's pronouncement. See Godoy, 706 F.3d at 495. That is why, in Godoy, we found that the mention of a right to appeal an "illegal" sentence was misleading, even though the court's statement was technically accurate considering that "illegal sentence" is a lawyerly term of art. Here, likewise, we do not pause to parse the precise legal meaning of "reasonableness." Rather, we note that Adona surely thinks his sentence unreasonable, and that his belief is not outside the common meaning of that word.

         The conclusion that the district court's plea colloquy was deficient does not end our analysis. Notwithstanding the district court's misstatement, the government contends that Adona's counsel "clarified any ambiguity" in the plea colloquy. U.S. Br. 65 n.27. To assess this claim, we turn to Adona's counsel's statement, which was as follows:

And I've advised Mr. Adona of what Your Honor said to him in open court prior to this, that Your Honor . . . would consider the advisory guidelines, but your inclination was that that - the court would probably depart upward and would state the reasons for that. I've explained to Mr. Adona, and I think Your Honor just went over briefly with him earlier, that under the plea agreement he retains the right to appeal that decision and - if Your Honor does do that.

         Adona Plea Hearing Tr. 14.

         We need not decide whether or under what circumstances a statement by defense counsel may cure a district court's mischaracterization of a plea waiver because counsel's statement did not do so in this case. Contrary to the government's contention, Adona's counsel did not state "that Adona would retain the right to appeal only if the district court sentenced him to an above-guidelines sentence." U.S. Br. 65 n.27 (emphasis added). Instead, Adona's counsel merely told him that he retained the right to appeal an above-Guidelines sentence, without suggesting that was the only category of sentence he could appeal. Indeed, that was not the only category of sentence he could appeal, even under the written plea agreement - which permitted him also to appeal a sentence "above the statutory maximum." Plea Agreement 7. Accordingly, because counsel's statement made no effort to mark the metes and bounds of appealable sentences, it did nothing to inform Adona of the true scope of his appeal waiver.

         Nor did the government say anything to clarify or correct the record - despite our recent admonition that "the United States Attorney's Office would be well advised to develop instructions and training for its attorneys to make it part of their routine practice to help ensure that district courts fulfill each of the requirements of Rule 11 . . . when a defendant enters a plea." Shemirani, 802 F.3d at 3. Had the government immediately corrected the record, it could have preserved its appeal waiver and obviated the need for the past several pages of this opinion. Because it did not, we now proceed to addressing the merits of Adona's appeal.


         Adona raises a number of arguments about the district court's decision to sentence him consecutively to, rather than concurrently with, his Superior Court sentence. Only one of them, which concerns the district court's failure to take into account Section 5G1.3(b) of the United States Sentencing Guidelines, has merit. Because Adona failed to assert this argument in the district court, we review it for plain error only. United States v. Andrews, 532 F.3d 900, 908 (D.C. Cir. 2008). Under that standard, "[t]here must be (1) error, (2) that is plain, and (3) that affect[s] substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Id. (quoting Johnson v. United States, 520 U.S. 461, 467 (1997)); see United States v. Olano, 507 U.S. 725, 731-36 (1993).


         The district court accepted Adona's plea agreement in November 2014. As part of his guilty plea, Adona admitted to conspiring to distribute and possess PCP, in violation of 21 U.S.C. §§ 841, 846. He proffered that he "knowingly and intentionally distributed PCP in vials and cigarette 'dippers, '" that he "kept, stored, shared, and maintained firearms" within Woodberry Village, and that he undertook these activities in conspiracy with his five co-defendants. Plea Agreement 14.

         The agreement also required Adona to plead guilty to a D.C. Superior Court charge of attempted assault with a dangerous weapon, in violation of 22 D.C. Code §§ 402, 1803. That charge stemmed from Adona's shooting of Karl ...

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