United States of America v. Mike K. Brown

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-1859
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UNITED STATES OF AMERICA
v.
MIKE K. BROWN,
Appellant
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 08-cr-00036-001)
District Judge: Honorable Sean J. McLaughlin
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Submitted Under Third Circuit LAR 34.1(a)
December 17, 2009
Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges.
(Filed :December 21, 2009 )
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OPINION OF THE COURT
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JORDAN, Circuit Judge.
Appellant Mike K. Brown appeals from a March 19, 2009 judgment of the United
States District Court for the Western District of Pennsylvania sentencing him to nine

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A district court may revoke a sentence of supervised release pursuant to1
18 U.S.C. § 3583(e) if the court “finds by a preponderance of the evidence that the
defendant violated a condition of supervised release.” That section also gives a district
2
months imprisonment, to be followed by one year of supervised release. For the
following reasons, we will affirm.
I. Background
On October 31, 2000, Brown pled guilty to one count of bank robbery, in violation
of 18 U.S.C. § 2113(a), in the United States District Court for the District of South
Carolina. He was sentenced to a period of incarceration and, of significance here, to three
years of supervised release. The court placed several conditions on Brown’s supervised
release, including a prohibition on the excessive use of alcohol and the unlawful use or
possession of any controlled substance, and a requirement that Brown participate in a
drug abuse testing and treatment program. After Brown’s release from prison,
jurisdiction over his supervised release was transferred to the United States District Court
for the Western District of Pennsylvania (the “District Court”) on July 9, 2007.
At a hearing on August 27, 2008, the District Court heard evidence that the
Commonwealth of Pennsylvania had charged Brown with driving under the influence of
alcohol, that Brown had tested positive for and admitted to using marijuana, and that
Brown had refused to participate in a drug abuse testing and treatment program. The
Court concluded that Brown had violated several conditions of his supervised release, and
it thus revoked that release. It sentenced Brown to seven months imprisonment and an1

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court authority to fashion a new sentence for a defendant whose sentence of supervised
release has been revoked. Id.
On October 27, 2008, Brown filed a pro se motion pursuant to 28 U.S.C. § 22552
to vacate the sentence, arguing that preventing him from purchasing, possessing or
consuming alcohol violated his due process rights. That motion is still pending before the
District Court.
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additional twelve-month period of supervised release. The Court also added two
additional conditions of supervised release, requiring Brown to complete an in-patient
drug and alcohol treatment program, and prohibiting Brown from the purchase,
possession, or consumption of alcohol.2
Brown served the prison term imposed and began serving his one-year period of
supervised release in early 2009. However, on February 26, 2009, his probation officer
filed a petition seeking to again revoke Brown’s supervised release. On March 13, 2009,
another revocation hearing was held, during which Brown admitted to (1) submitting one
falsified urine sample and two urine samples that had tested positive for marijuana, (2)
drinking alcohol, (3) failing to attend counseling or treatment programs, and (4) moving
without notifying his probation officer. Based on those violations of the conditions of his
second term of supervised release, the District Court revoked the release and prepared to
impose a new sentence.
The Court heard sentencing arguments from both the government and Brown.
Brown requested a variance from the Sentencing Guidelines based on his multiple health

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Of his health problems, Brown said: “I have Hepatitis, which is a terminal illness.3
I’m bipolar, I’m manic depressive. I’m paranoid schizophrenic. I have panic and anxiety
attacks. I also have a herniated disc in my cervical, thoracic and lumbar in my back. A
herniated disc which resulted in spinal stenosis. And I also have scoliosis of the back.
And more likely than not, I’m being checked on this, I probably have cirrhosis of the
liver.” (App. at 10-11.)
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problems, claiming that a prisoner in his situation would not receive adequate medical3
treatment. In response, the government contended that Brown’s history in prison showed
that he had “a number of medical problems that have been adequately dealt with by the
Bureau of Prisons.” (App. at 12.) The government also argued for a harsher sentence
than Brown received after his first supervised release violation because, not only had he
refused drug and alcohol treatment on several occasions, he had refused to comply with
the Court’s prior efforts to limit his intake of alcohol. The government also observed that
Brown had filed a motion pursuant to 28 U.S.C. § 2255 because “[h]e felt that [the court’s
prohibition on his use of alcohol] violated his constitutional right to liberty, property and
pursuit of happiness, serving no judicial purpose.” (App. at 13.) Finally, the government
told the Court that Brown had a pending a DUI charge from Venango County,
Pennsylvania, that involved his narrowly avoiding running over children.
The Court concluded that Brown’s infractions constituted Grade C supervised
release violations under U.S.S.G. § 7B1.1(b), that his criminal history category was V,
and that his Guidelines range for the release violations was seven to thirteen months
imprisonment. The court then noted its intent to sentence Brown to nine months

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Under 18 U.S.C. § 3583(h), “[w]hen a term of supervised release is revoked and4
the defendant is required to serve a term of imprisonment, the court may include a
requirement that the defendant be placed on a term of supervised release after
imprisonment.”
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imprisonment and another year of supervised release. It addressed the sentencing factors4
enumerated in 18 U.S.C. § 3553(a) and offered the following explanation of the sentence:
First of all, ... as I think the record reflects, there is no factual dispute
as to the violations. What we have here is an inability and/or unwillingness
on the part of this defendant to comply with the conditions of supervised
release, particularly insofar as it relates to attending required treatment
sessions, abstaining from use of alcohol and/or drugs. I should note
parenthetically that this is the second time through here on a revocation, the
first time having been revoked for similar conduct with a sentence of seven
months imposed.
I consider supervised release violations, particularly a second round
of supervised release violations serious, because it impacts in a certain way
on the integrity of the whole system and it is problematic.
I also consider in a case like this the need for deterrence, that is to
send an appropriate message to other individuals on supervised release that
there are consequences in violating. Hereto, given what appears to be a
significant alcohol problem and one that either this defendant has been
unable or unwilling to really meaningfully come to terms with, there is a
safety issue here which I see... . primarily safety to the public in general.
I’ve also considered the need to avoid ... sentencing disparities
between similarly-situated defendants.
As I said to Mr. Brown at the outset, I am by no means
unsympathetic with these health issues, but I do not see that the lay of the
land has changed appreciably there in terms of what his health situation was
before and what his health situation is now... . But with your Hepatitis C
and you indicated a potential cirrhosis problem, probably the healthiest
place for you for a period of time is off the street where you won’t be
drinking and punishing yourself that way. Where you can get some medical
treatment because I’m absolutely convinced that you have absolutely no

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Brown’s argument concerning a perceived disparity between himself and similarly5
situated defendants is in essence a subset of the first argument because both arguments
allege that the District Court failed to adequately consider the sentencing factors listed in
18 U.S.C. § 3553(a). Accordingly, we will address this argument in our discussion of the
reasonableness of Brown’s sentence.
The District Court had subject matter jurisdiction in this case under 18 U.S.C. §6
3231. We have jurisdiction under 28 U.S.C. § 1291.
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intention, at least at the present time and I’m holding out hope in the future
that you will, I’ve seen no indication up to this point in time that you have
any indication of stopping drinking or using drugs period. And that’s just
the long and the short of it.
(App. at 17-18.) Neither Brown nor his counsel raised any objection during the
sentencing hearing.
Brown did, however, file this timely appeal. He asks us to vacate his sentence and
remand the case for three reasons. First, he claims that his sentence was unreasonable
because the “District Court did not adequately address all the factors of 18 U.S.C. §
3553(a), such as [his] medical history and characteristics ... as well as possible sentencing
disparities with other similarly situated defendants.” (Appellant’s Op. Br. at 15.) Second,
he argues that the imposition of another year of supervised release created an unwarranted
disparity between him and other similarly situated defendants. Finally, he maintains that5
certain statements made by the government at sentencing were unduly prejudicial.
II. Discussion6
In general, we review a criminal defendant’s sentence for reasonableness. Gall v.
United States, 552 U.S. 38, 46 (2007); see also United States v. Bungar, 478 F.3d 540,

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543 (3d Cir. 2007) (holding that reasonableness review applies “to a sentence imposed
upon a revocation of supervised release”). However, when a defendant fails to preserve
an objection, we review the district court’s decision for plain error. See United States v.
Watson, 482 F.3d 269, 274 (3d Cir. 2007); see also United States v. Grier, 475 F.3d 556,
571 n.11 (3d Cir. 2007) (“An objection to the reasonableness of [a] final sentence will be
preserved if, during sentencing proceedings, the defendant properly raised a meritorious
factual or legal issue relating to one or more of the factors enumerated in 18 U.S.C. §
3553(a).”).
Brown contests the reasonableness of his sentence and also asserts that the
sentencing hearing was infected by the consideration of inadmissable evidence. We
consider each of those arguments in turn.
A. The Reasonableness of Brown’s Sentence
When evaluating the reasonableness of a sentence imposed on a criminal
defendant, our analysis involves two levels of inquiry. We begin by determining whether
the district court “committed [any] significant procedural error.” Gall, 552 U.S. at 51.
Upon determining that the sentence is “procedurally sound,” we consider whether the
sentence is substantively reasonable. Id.
A district court’s “fail[ure] to consider the § 3553(a) factors” can create a
procedurally unreasonable sentence. United States v. Levinson, 543 F.3d 190, 195 (3d
Cir. 2008) (quoting Gall, 552 U.S. at 51). Indeed, we have held that the “touchstone of

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‘reasonableness’ is whether the record as a whole reflects rational and meaningful
consideration of” those factors. Grier, 475 F.3d at 571. Although Brown attacks the
District Court’s consideration of the § 3553(a) factors on three fronts, we are satisfied
that the sentencing decision was proper.
First, Brown claims that the District Court failed to adequately consider whether
the sentence would address his health needs. Next, he asserts that the Court did not
adequately address the need to avoid unwarranted sentencing disparities among similarly
situated defendants, and he argues that the sentence actually caused a disparity between
him and other defendants sentenced for violating supervised release conditions. Finally,
Brown alleges that the District Court considered public safety as a factor when there was
no evidence that the Court could properly consider in that regard.
As to the first argument, the District Court’s consideration of Brown’s health
problems was more than sufficient. Before sentencing, the Court inquired into the issue
and said to Brown: “I am by no means unsympathetic with your medical conditions.”
(App. at 16.) Then, in explaining the sentence, the Court reiterated those sentiments, as
quoted above. Thus, it explicitly addressed Brown’s health issues, including the specific
concerns he raised.
Second, there was no error in the District Court’s treatment of potential sentencing
disparities. Brown has not pointed us to anything in the record indicating that he raised a
question about a potential disparity, nor have we found any preservation of that issue in

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The cases cited to by Brown on this point include: United States v. Brightful, 4447
F. Supp. 2d 337 (E.D. Pa 2006); United States v. Washington, 455 F. Supp. 2d 299 (E.D.
Pa 2006); United States v. Leach, 397 F. Supp. 2d 599 (E.D. Pa 2005); United States v.
Hudicek, 406 F. Supp. 2d 559 (E.D. Pa 2005); United States v. Rafeh, 274 F. Supp. 2d
690 (E.D. Pa 2003); United States v. Thompson, 240 F. Supp. 2d 325 (E.D. Pa 2003); ;
United States v. Bibbs, 252 F. Supp. 2d 170 (E.D. Pa 2003); United States v. Evans, 208
F. Supp. 2d 538 (E.D. Pa 2002); United States v. Segars, 226 F. Supp. 2d 686 (E.D. Pa
2002); United States v. Nelson, 221 F. Supp. 2d 576 (E.D. Pa 2002); United States v. Bell,
171 F. Supp. 2d 487 (E.D. Pa 2001). United States v. Tyler, 98 F. Supp. 2d 641 (E.D. Pa
2000).
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the record. Assuming he had preserved the issue for appeal, however, it was sufficient
for the Court to say, as it did, that it had considered the need to avoid unwarranted
sentencing disparities between similarly-situated defendants. Without any specific
disparity having been raised, the District Court cannot be faulted for simply noting that it
had given the issue due consideration. Cf. United States v. Lessner, 498 F.3d 185, 203
(3d Cir. 2007) (“A sentencing court need not make findings as to each factor if the record
otherwise makes clear that the court took the factors into account.”).
Furthermore, we find no merit in Brown’s present claim that the District Court
created an actual disparity between him and other similarly situated defendants. Brown
contends that several cases from district courts within our Circuit reveal “a pattern of
terminating supervised release following a term of imprisonment imposed for a violation
of supervised release.” (Appellant’s Op. Br. at 20.) A disparity exists, Brown claims,7
because the defendants in those cases were sentenced only to terms of imprisonment after
their terms of supervised release were revoked, while his sentence includes both a term of

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imprisonment and an additional term of supervised release. Passing once again the
question of whether he adequately preserved his argument for appeal, the argument
nevertheless fails because he has not pointed to any disparity between himself and a
defendant whose “circumstances exactly paralleled” his. United States v. Charles, 467
F.3d 828, 833 n.7 (3d Cir. 2006). Although Brown has cited to cases where other
defendants were not sentenced to additional terms of supervised release after violating
conditions of their supervised release, he has not brought to our attention any instance
where this is true for a defendant sentenced after a second violation of supervised release
who posed a threat to society because of an unwillingness or inability to control
addictions to alcohol or drugs. He has, in short, failed to note any evidence of an actual
disparity.
Finally, the District Court’s consideration of public safety was proper because it
had ample reason to conclude that Brown posed a threat to the public. This was Brown’s
second violation of supervised release and both violations involved Brown’s use of
alcohol and drugs. The Court knew that Brown had been charged by the Commonwealth
of Pennsylvania with driving under the influence of alcohol, and it further knew that
attempts to remedy Brown’s addictions through treatment had proven unsuccessful.
Based on that evidence, none of which is contested, the District Court was well within the
bounds of its discretion to base Brown’s sentence, in part, on the need to protect the
public.

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Because the District Court’s decisions regarding the § 3553(a) factors were
adequate, Brown’s sentence was reasonable. Brown has not directed our attention to any
other issue that he contends undermines the reasonableness of the sentence, either
procedurally or substantively, and we can discern none.
B. Statements Made by the Government at Sentencing
Brown next urges us to vacate his sentence based on four statements made by the
government at the March 13, 2009 hearing, statements that he now claims were improper
for the District Court to have considered in that setting. The specific statements are as
follows: (1) “As you know, there is a 2255 [motion] pending .... [whereby Brown
protested the imposition of] a condition that [he] cannot possess or use or consume
alcohol;” (2) “I would remind the court that [Brown] has still pending a DUI ... [where]
there were a number of children that were by the road that he is alleged to have narrowly”
missed hitting; (3) “[Brown] has also ... refused at various times to take treatment” in
violation of the conditions of his supervised release; and, (4) Brown has “had a number of
medical problems that have been adequately dealt with by the Bureau of Prisons.” (App.
at 12-13.)
Since Brown did not raise before the District Court his current objections to the
government’s statements, he is entitled to relief only if the Court committed plain error by
considering them. See Watson, 482 F.3d at 274. Further, even if we find plain error, we
must allow the decision to stand unless the error affects substantial rights, United States v.

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Olano, 507 U.S. 725, 732 (1993), and “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. (quoting United States v. Young, 470 U.S. 1, 15
(1985) (internal quotations omitted)).
Brown claims that the District Court’s consideration of the statements made by the
government amounts to plain error because, in considering them, the court deviated from
the Federal Rules of Evidence. Specifically, Brown’s objection is to the relevance and
reliability of the statements because they do not “directly relate[] to the revocation of
Brown’s supervised release” and “there was no evidence (hearsay or otherwise) presented
at the hearing of the ... behavior” alluded to by the government’s statements. (Appellant’s
Op. Br. at 19.)
We can dispose of this argument with little discussion. It is fundamental that
“[t]he Federal Rules of Evidence do not apply in sentencing proceedings.” United States
v. Miele, 989 F.2d 659, 663 (3d Cir. 1993). Indeed, “in resolving any dispute concerning
a factor important to the sentencing determination, the court may consider relevant
information without regard to its admissibility under the rules of evidence applicable at
trial, provided that the information has sufficient indicia of reliability to support its
probable accuracy.” United States v. Yeaman, 194 F.3d 442, 463 (3d Cir. 1999) (quoting
U.S.S.G. § 6A1.3) (alteration omitted) (internal quotation omitted). In this case, the
District Court did not err by considering the four statements complained of, because each
was relevant and reliable. It is telling that no objection was made at the time the

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statements were made, and more telling still that no evidence has been proffered to show
that any of the statements was less than entirely accurate.
III. Conclusion
For the foregoing reasons, we will affirm the sentence imposed by the District
Court.

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