United States of America v. Royce Brown

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-2600
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UNITED STATES OF AMERICA
v.
ROYCE BROWN,
Appellant
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 1:95-cr-00069-0001)
District Judge: Honorable Sue L. Robinson
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 3, 2010
Before: SMITH, FISHER and GARTH, Circuit Judges
(Filed: March 5, 2010 )
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OPINION
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PER CURIAM
Appellant Royce Brown seeks review of a May 8, 2009, order by the United States
District Court for the District of Delaware denying Brown’s motion to reduce his
sentence pursuant to 18 U.S.C. § 3582(c)(2). We will affirm the District Court’s order.

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“A defendant is a career offender if (1) the defendant was at least eighteen years1
old at the time the defendant committed the instant offense of conviction; (2) the instant
offense of conviction is a felony that is either a crime of violence or a controlled
substance offense; and (3) the defendant has at least two prior felony convictions of either
a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a).
In November 2007, the Sentencing Commission issued Amendment 706, which2
generally reduced the base offense level for crack cocaine offenses under § 2D1.1(c) by
two levels. See U.S.S.G. App. C, Amend. 706 (Nov. 1, 2007). The Commission made
the amendment retroactively applicable. See U.S.S.G. App. C, Amend. 713 (Supp.
May 1, 2008).
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I. Background
In June 1996, a jury found Brown guilty of possession with intent to distribute
more than 50 grams of crack cocaine and unlawful possession of a firearm by a felon.
See 21 U.S.C. §§ 841(a)(1), (b)(1)(A); 18 U.S.C. § 922(g)(1). In November 1997, the
District Court entered judgment and sentenced Brown as a career offender pursuant to
U.S.S.G. § 4B1.1, to a total term of 360 months of imprisonment and five years of1
supervised release. Brown appealed. We affirmed the District Court’s judgment. See
United States v. Brown, C.A. Nos. 96-7449, 97-7602 (consolidated).
On March 13, 2009, Brown filed a pro se motion under 18 U.S.C. § 3582(c)(2) in
the District Court, seeking to reduce his sentence by two levels under Sentencing
Guideline Amendment 706. Brown, like similar § 3582 movants, was appointed counsel.2
Brown’s counsel promptly moved to withdraw, arguing that, because Brown was
sentenced as a career offender, his § 3582 claim lacked merit under United States v.
Mateo, 560 F.3d 152, 155 (3d Cir. 2009). The District Court granted the motion to

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It does not appear that the District Court ruled upon the motion.3
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withdraw. Brown moved for appointment of substitute counsel, but the District Court did
not grant the motion. On May 8, 2009, the District Court denied Brown’s § 35823
motion.
Proceeding pro se, Brown timely filed a notice of appeal.
II. Analysis
A.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review
the decision to deny the motion to reduce the sentence under § 3582(c)(2) for abuse of
discretion. See Mateo, 560 F.3d at 154.
Under § 3582, “in the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered by the
Sentencing Commission. . . .,” a District Court may reduce a defendant’s sentence, “after
considering the factors set forth in section 3553(a) to the extent that they are applicable, if
such a reduction is consistent with applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2). In his § 3582 motion, Brown argued that, by
enacting Amendment 706, the Sentencing Commission lowered his sentencing range.
The District Court denied Brown’s motion, stating that it “considered all of the
3553(a) factors and [found] the sentence imposed on November 6, 1997, to be the

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appropriate sentence.” Expressly considering our decision Mateo, 560 F.3d at 155-56, the
District Court rejected any sentence reduction under Amendment 706.
The District Court did not abuse its discretion. When Brown was originally
sentenced, the District Court classified Brown as a career offender pursuant to U.S.S.G.
§ 4B1.1. Amendment 706 does not affect the sentencing range of an individual classified
as a career offender under the Sentencing Guidelines. See Mateo, 560 F.3d at 155
(“Amendment 706 only affects calculation under § 2D1.1(c), and the lowering of the base
offense level under § 2D1.1(c) has no effect on the application of the career offender
offense level required by § 4B1.1.”). Because Amendment 706 does not lower Brown’s
sentencing range, his motion seeking a reduction in his sentence pursuant to § 3582(c)(2)
lacks merit. See id.
B.
Brown responds that he is “actually innocent of the career criminal enhancement
imposed upon him.” He claims that he should never has been classified as a career
offender in the first instance, so he should have been sentenced under U.S.S.G.

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Brown argues that his third degree arson conviction has a mens rea of4
“recklessness” and therefore should not qualify as a “crime of violence.” However,
Brown does not address the definition of “crime of violence” set forth in the Sentencing
Guidelines, which expressly includes arson. U.S.S.G. § 4B1.2(a)(2) (“The term ‘crime of
violence’ means any offense under federal or state law, punishable by imprisonment for a
term exceeding one year, that . . . is . . . arson . . . or otherwise involves conduct that
presents a serious potential risk of physical injury to another.”); see also United States v.
Parson, 955 F.3d 858, 866 (3d Cir. 1992) (concluding that the Sentencing Commission
has the power to expand the category of “career offenders” from the definition set forth in
18 U.S.C. § 16).
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§ 2D1.1(c) instead of § 4B1.1. Accordingly, he seeks to be re-sentenced as a non-career4
offender, so that Amendment 706 may apply to reduce his sentence.
In Mateo, however, we expressly held that, in the context of a § 3582 motion
premised upon Amendment 706, a District Court lacks authority to reconsider a prior
determination to apply the career offender guidelines. Mateo, 560 F.3d at 156. The
District Court correctly applied Mateo in denying Brown’s career offender claim.
C.
Apparently recognizing that Mateo forecloses his efforts under § 3582 to attack his
initial classification as a career offender, Brown now attempts to proceed under 18 U.S.C.
§ 3742(a)(2), which permits a defendant to appeal an otherwise-final sentence if it was
“imposed as a result of an incorrect application of the sentencing guidelines.” However,
Brown has already taken a direct appeal of his conviction. See United States v. Brown,
C.A. Nos. 96-7449, 97-7602. Moreover, an attempt to appeal more than a decade after
sentencing is clearly untimely. See Fed. R. App. P. 4(b)(1)(A)(i).

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A § 2244 applicant must make a prima facie showing that any claim he wishes to5
raise either relies upon a new, retroactively applicable rule of constitutional law or upon
newly discovered evidence of actual innocence. See 28 U.S.C. § 2244(b)(2); In re
Olopade, 403 F.3d 159, 162 (3d Cir. 2005). We note that the document Brown has
appended to his opening brief does not appear to meet the standards for § 2244 relief.
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Looking to the substance of his claim, Brown is attempting to collaterally attack
his sentence. Such a claim should be pursued as a motion under 28 U.S.C. § 2255.
Brown already filed one § 2255 motion in June 2000, which the District Court denied in
February 2003. Accordingly, Brown must seek our authorization before filing a second
or successive § 2255 motion. 28 U.S.C. § 2244. Indeed, in his opening brief, Brown
makes an alternative request for relief, seeking leave to file a second or successive § 2255
motion. Although one exhibit to his brief purports to be a § 2244 application, Brown did
not properly file a § 2244 application with the required supporting documents, as he must
do in order to comply with the rules of this Court. See 3d Cir. L.A.R. 22.5. If Brown5
wishes to pursue relief pursuant to 28 U.S.C. § 2244 in the Court of Appeals, he must file
a separate application with the Clerk of the Court and include all the documents required
by 3d Cir. L.A.R. 22.5.
D.
Brown raises various contentions that the Government and his appointed counsel
“entered into some off-the-record agreement” that resulted in the dismissal of his § 3582
motion. See Opening Brief at 2(a)-(b). We do not credit these vague and unsupported
allegations. To the extent Brown is arguing that the District Court abused its discretion

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by permitting counsel to withdraw or by declining to appoint substitute counsel, we find
no abuse of discretion.
III. Conclusion
For the foregoing reasons, we will affirm the judgment of the District Court.

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